Table of Contents

As filed with the Securities and Exchange Commission on March 10, 2014

Registration No. 333-194015

 

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

AMENDMENT NO. 1

TO

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

A10 NETWORKS, INC.

(Exact name of Registrant as specified in its charter)

 

Delaware

  3576   20-1446869
(State or other jurisdiction of
incorporation or organization)
  (Primary Standard Industrial
Classification Code Number)
  (I.R.S. Employer
Identification Number)

3 West Plumeria Drive

San Jose, CA 95134

(408) 325-8668

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

Lee Chen

President and Chief Executive Officer

A10 Networks, Inc.

3 West Plumeria Drive

San Jose, CA 95134

(408) 325-8668

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Copies to:

Herbert P. Fockler

Mark B. Baudler

Wilson Sonsini Goodrich & Rosati, P.C.

650 Page Mill Road

Palo Alto, California 94304

(650) 493-9300

 

Robert Cochran

Vice President,

Legal and Corporate Collaboration

A10 Networks, Inc.

3 West Plumeria Drive

San Jose, CA 95134

(408) 325-8668

 

Jorge del Calvo

Stanton D. Wong

Pillsbury Winthrop Shaw Pittman LLP

2550 Hanover Street

Palo Alto, California 94304

(650) 233-4500

Approximate date of commencement of proposed sale to the public : As soon as practicable after this registration statement becomes effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box: ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

  Large accelerated filer  ¨     

Accelerated filer ¨

  Non-accelerated filer  x   (Do not check if a smaller reporting company)     

Smaller reporting company  ¨

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of

Securities to be Registered

 

Shares

to be
Registered(1)

  Proposed
Maximum
Offering Price
Per Share
 

Proposed
Maximum
Aggregate

Offering Price(2)

 

Amount of

Registration Fee(3)

Common Stock, $0.00001 par value per share

  14,375,000   $15.00   $215,625,000   $27,772.50

 

 

 

(1)   Estimated pursuant to Rule 457(a) under the Securities Act of 1933, as amended. Includes the aggregate offering price of additional shares that the underwriters have the option to purchase.
(2)   Estimated solely for the purpose of calculating the registration fee.
(3)   The Registrant previously paid $12,880 of the registration fee with the prior filings of this Registration Statement.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


Table of Contents

The information in this prospectus is not complete and may be changed. We and the selling stockholders may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we and the selling stockholders are not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

PROSPECTUS (Subject to Completion)

Issued March 10, 2014

 

12,500,000 Shares

 

LOGO

 

COMMON STOCK

 

 

 

A10 Networks, Inc. is offering 9,000,000 shares of its common stock and the selling stockholders are offering 3,500,000 shares. We will not receive any proceeds from the sale of shares by the selling stockholders. This is our initial public offering and no public market currently exists for our shares. We anticipate that the initial public offering price will be between $13.00 and $15.00 per share.

 

 

 

We have applied to list our common stock on the New York Stock Exchange under the symbol “ATEN.”

 

 

 

We are an “emerging growth company” under the federal securities laws and are subject to reduced public company reporting requirements. Investing in our common stock involves risks. See “ Risk Factors ” beginning on page 13.

 

 

 

PRICE $              A SHARE

 

 

 

      

Price to

Public

    

Underwriting

Discounts and

Commissions(1)

    

Proceeds to

A10 Networks

    

Proceeds to

Selling

Stockholders

Per Share

     $               $                       $                          $                

Total

     $               $                       $                          $                

 

(1)   See “Underwriters (Conflicts of Interest)” for additional information regarding underwriting compensation.

 

The selling stockholders have granted the underwriters the right to purchase up to an additional 1,875,000 shares of common stock to cover over-allotments.

 

The Securities and Exchange Commission and any state securities regulators have not approved or disapproved of these securities, or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

The underwriters expect to deliver the shares of common stock to purchasers on                     , 2014.

 

 

 

MORGAN STANLEY   BofA MERRILL LYNCH   J.P. MORGAN
RBC CAPITAL MARKETS

 

 

 

PACIFIC CREST SECURITIES   OPPENHEIMER & CO.

 

                    , 2014


Table of Contents

 

LOGO

Meeting Needs in Mission-Critical Areas of the Network ADC TPS Customer Network Perimeter DDoS Security Detect and Mitiga DDoS Attacks Data Center Application Delivery Controller Optimize Data Center Performance and Security Web Web App Database CGN Service Provider Backbone Carrier Grade Network Address Translation/ IPv6 Transition Extend and Migrate Network Infrastructure ACOS Advanced Core Operating System Firewall IPv4 IPv6 Broad Solution offering We are a leading provider of advanced application networking technologies. We offer a range of software-based appliances that leverage our Advanced Core Operating System (ACOS). ACOS incorporates our proprietary shared memory architecture, which is designed to utilize multicore processors efficiently and provide increasing levels of performance with increasing processor density. Thunder Thunder vThunder hardware appliance hybrid virtual appliance virtual appliance


Table of Contents

TABLE OF CONTENTS

 

     Page  

Prospectus Summary

     1  

The Offering

     7  

Summary Consolidated Financial Data

     9   

Risk Factors

     13   

Special Note Regarding Forward-Looking Statements

     39   

Market and Industry Data

     40   

Use of Proceeds

     41   

Dividend Policy

     41   

Capitalization

     42   

Dilution

     44   

Selected Consolidated Financial Data

     46   

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     50   
     Page  

Business

     85   

Management

     102   

Executive Compensation

     109   

Certain Relationships and Related Party Transactions

     120   

Principal and Selling Stockholders

     122   

Description of Capital Stock

     125   

Shares Eligible for Future Sale

     129   

Material U.S. Federal Income Tax Consequences to Non-U.S. Holders

     131   

Underwriters (Conflicts of Interest)

     135   

Legal Matters

     141   

Experts

     142   

Additional Information

     142   

Index to Consolidated Financial Statements

     F-1   
 

 

 

 

Neither we nor the selling stockholders have authorized anyone to provide any information or make any representations other than those contained in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We and the selling stockholders are offering to sell, and seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of the common stock.

 

Through and including                     , 2014 (the 25th day after the date of this prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.

 

For investors outside of the United States: neither we, the selling stockholders, nor the underwriters have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. You are required to inform yourselves about and to observe any restrictions relating to this offering and the distribution of this prospectus outside of the United States.


Table of Contents

PROSPECTUS SUMMARY

 

This summary highlights information contained in greater detail elsewhere in this prospectus. This summary is not complete and does not contain all of the information you should consider in making your investment decision. You should read the entire prospectus carefully before making an investment in our common stock. You should carefully consider, among other things, our consolidated financial statements and the related notes and the sections entitled “Risk Factors,” “Business” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this prospectus. Unless the context otherwise requires, the terms “A10,” “the company,” “we,” “us” and “our” in this prospectus refer to A10 Networks, Inc., and its subsidiaries.

 

A10 NETWORKS, INC.

 

Overview

 

We are a leading provider of advanced application networking technologies. Our solutions enable enterprises, service providers, Web giants and government organizations to accelerate, secure and optimize the performance of their data center applications and networks. Our products are built on our Advanced Core Operating System, or ACOS, platform of advanced networking technologies, which is designed to enable our products to deliver substantially greater performance and security relative to prior generation application networking products. Our software based ACOS architecture also provides the flexibility that enables us to expand our business to offer additional products to solve a growing array of networking and security challenges arising from increased Internet cloud and mobile computing.

 

We currently offer three software based advanced application networking solutions. These are Application Delivery Controllers, or ADCs, to optimize data center performance; Carrier Grade Network Address Translation, or CGN, to provide address and protocol translation services for service provider networks; and a Distributed Denial of Service Threat Protection System, or TPS, for network-wide security protection. We deliver these solutions both on optimized hardware appliances and as virtual appliances across our Thunder Series and AX Series product families.

 

Our ACOS platform architecture is optimized for modern 64-bit computer processors, or CPUs, which increasingly have multiple parallel processing cores that operate within a single CPU for higher efficiency and performance scalability. In order to maximize the capabilities of these increasingly dense multi-core CPUs, ACOS implements a proprietary shared memory architecture that provides all cores with simultaneous access to common memory. This shared memory architecture enables our products to utilize these multi-core CPUs efficiently and scale performance with increasing CPU cores. As a result, we believe our ACOS application networking platform enables us to provide our end-customers with products that can deliver superior price performance benefits over products that lack these capabilities. We believe our products can process two to five times more web transactions (measured as Layer 4 connections per second) in certain head to head product comparisons per unit of computing and memory resources, power, rack space or list price. ACOS’s high performance design enables our products to address a wide range of today’s performance-driven networking challenges. For example, we have expanded our products’ capabilities to defend against the rising volume of large scale, sophisticated cyber security threats, such as Distributed Denial of Service, or DDoS, and other increasingly sophisticated high volume network attacks. The flexible software design of ACOS enables our end-customers to deploy our products across a number of new models for IT operations, such as managed hosting of their network by a third party provider and Internet cloud-based applications and networks.

 

We are a leading provider of application network technologies, based on our networking solutions’ performance, security and scalability. We believe our products can process two to five times more web transactions (measured as Layer 4 connections per second) in certain head to head product comparisons per unit of computing and memory resources, power, rack space or list price. Furthermore, the flexible software design of

 

 

1


Table of Contents

ACOS enables our end customers to deploy our products across a number of new models for IT operations, such as managed hosting of their network by a third party provider and Internet cloud-based applications and networks. To maintain and strengthen our leadership position, we will need to continue to innovate and advance our application network technologies and compete effectively with other companies that participate in our markets, including larger and more well-established companies.

 

We sell our products globally to service providers and enterprises that depend on data center applications and networks to generate revenue and manage operations efficiently. Our high-touch sales force engages directly or through indirect distribution channels with our end-customers. We believe that a high-touch, customer-focused selling process is important before, during and after the sale of our products to maximize our sales success. Product fulfillment is generally done through our original equipment manufacturers or distribution channel partners. As of December 31, 2013, we had sold our products to more than 2,900 customers across 65 countries, including three of the top four United States wireless carriers, seven of the top ten United States cable providers, and the top three wireless carriers in Japan, in addition to other global enterprises, Web giants and governmental organizations. Our business is geographically diversified with 48% of our total revenue from the United States, 28% from Japan and 24% from the rest of the world for the year ended December 31, 2013.

 

For the years ended December 31, 2010, 2011, 2012 and 2013, our total revenue was $55.3 million, $91.3 million, $120.1 million and $141.7 million, representing a compound annual growth rate of approximately 37% from 2010 to 2013. Our total revenue grew 32% from 2011 to 2012 and 18% from 2012 to 2013. For the years ended December 31, 2010, 2011, 2012 and 2013, our gross margin was 78%, 80%, 80% and 76%. We generated net income (loss) of $5.2 million, $7.3 million, $(90.2) million and $(27.1) million for the years ended December 31, 2010, 2011, 2012 and 2013. Our net income (loss) in these periods was affected by the settlement of, and legal expenses related to, our litigation with Brocade Communications Systems, Inc.

 

Our Industry

 

Organizations are increasingly dependent on their websites and data center infrastructure for business operations. IT administrators struggle to ensure continuous availability of these business critical resources in the face of escalating performance expectations, demands to migrate to cloud computing and increasingly sophisticated cyber security attacks. IT administrators are therefore seeking new application networking technologies to optimize the performance and security of data center applications and networks.

 

Trends Driving Continued Evolution of Application Networking

 

Commercial damage and customer dissatisfaction from poor website, data center application and network performance can have a lasting negative impact well beyond the expenses related directly to the downtime. To optimize data center application and network performance and avoid unforeseen downtime, organizations deploy application networking technology to ensure the performance and security of data center resources. These organizations must simultaneously address significant networking industry trends such as:

 

   

Increased Adoption of Cloud Computing Applications . According to Cisco’s Global Cloud Index, global Internet Protocol, or IP, traffic for cloud-based applications will grow at a 35% compound annual growth rate from 2012 through 2017, while data center traffic generally will grow at a 25% compound annual growth rate over the same period. As organizations move their business critical applications to the cloud, they need application networking solutions optimized for cloud computing that can scale with the performance demands and security expectations of this growth.

 

   

Increased Network Complexity Due to Virtualization and Software Defined Networking Adoption. The increased use of virtual servers and software defined networks is increasing network complexity. To deal with this complexity, organizations require next-generation application networking solutions that are flexible and dynamic.

 

 

2


Table of Contents
   

Rapid Growth of Internet-Connected Devices and the Exhaustion of the Existing IP Address Space . The rapid growth of mobile and other Internet-connected devices has overwhelmed the current Internet Protocol addressing scheme, IPv4, which will be fully exhausted in major markets such as the United States, Europe and Asia by 2015. To support this rapid growth of Internet-connected devices, the industry is transitioning to the next-generation addressing system, IPv6. As this transition unfolds, application networking technology will play an increasingly significant role in managing two Internet connection standards, simultaneously extending the viability of IPv4 and enabling end-customers to move to the IPv6 standard.

 

   

Increasing Risk from Cyber Security Threats. Cybercriminals, foreign military intelligence organizations and amateur hackers are targeting the data centers of organizations of every type. One particular cyber threat, DDoS, is particularly nefarious and presents a significant threat to any network. As these and other types of attacks have become more frequent and sophisticated, organizations increasingly rely on application networking technologies for defense.

 

   

Exponential Growth in Data Center Speeds . Organizations are enhancing the performance of their networks by increasing the data traffic speeds of their data center networks from the 1 and 10 Gigabit Ethernet rates in use over the last ten years to 40 Gigabit Ethernet currently and evolving to 100 Gigabit Ethernet as soon as 2015. Organizations require high performance application networking technology to ensure data center application and network performance and security are maintained despite rapidly escalating data rates.

 

Limitations of Alternative Approaches in Addressing These Challenges

 

Conventional networking equipment is built on custom designed semiconductors and is limited to only basic data forwarding and security functions based on a narrow range of address fields within a data packet. Due to these rigid designs and limited capabilities, conventional networking equipment cannot process more advanced application data and thus cannot effectively perform application-layer networking functions.

 

To address these shortcomings, first-generation application networking products were developed that could inspect and take action based upon the specific application of data traffic. This capability is referred to as being application-aware. First generation application networking products were able to improve application performance and security in ways not possible for conventional networking equipment. Examples of these first-generation application networking products include server load balancers and intrusion prevention systems. However, these first-generation products have fundamental limitations, including general purpose computing architectures that do not provide for sharing of memory resources and thus cannot fully utilize the functionality of modern, multi-core processors. These products lack the performance capabilities necessary to rapidly analyze application data at the rates necessary to meet performance and security requirements in modern data centers.

 

Need for Next-Generation High Performance Application Networking

 

In order to address these increasingly complex network challenges, a new generation of application-aware networking solutions is needed in order to look deeply into application content, modify content for performance optimization or security purposes, and forward the traffic at rapidly escalating network data rates. Next-generation application networking solutions require:

 

   

Ability to Scale with High Speed Network Traffic. Next-generation application networking technologies must be able to analyze application data intelligently as they move through faster networks to take full advantage of the increasing computing power of modern multi-core processors.

 

   

Platform to Provide Broad Application Extensibility. First-generation application networking technology has been unable to respond effectively to the dynamic requirements of modern applications and cloud computing. Next-generation application networking technology must be flexible and agile to address the increasing array of networking and application challenges.

 

 

3


Table of Contents
   

Sophisticated Security Functionality. Next-generation application networking technology must provide exceptional application content, inspection capabilities and processing speeds to detect and mitigate the effects of large-scale sophisticated cyber security threats such as DDoS and other attacks at the application level of the network.

 

   

Ability to Accommodate a Variety of IT Delivery Models. Enterprises are increasingly handling their information technology needs in a variety of ways, including operating their own conventional dedicated data centers and outsourcing to managed IT hosting providers and providers of cloud-based applications to multiple clients. Organizations need consistent application networking features and functionality regardless of which IT model, or combination of models, they use, and regardless of whether their networks are in virtual or physical forms.

 

   

Predictable Operational Performance. As data center traffic grows, first-generation approaches have limitations that can cause unpredictable performance that cannot consistently meet expected service levels. Next-generation application networking needs to deliver appropriate levels of service at ever-increasing data traffic rates.

 

The Next-Generation Application Networking Market Opportunity

 

We believe that the total worldwide addressable market for next-generation application networking is a combination of discrete markets that represent aggregated expenditures of $12.6 billion in 2013. The next-generation application networking market consists of Application Delivery Controllers, Network Security Equipment and Secure Web Gateways. According to Gartner, these discrete market opportunities represent $1.9 billion, $8.5 billion and $2.2 billion.

 

The A10 Networks Solution

 

We are a leading provider of advanced application networking technologies. Our solutions are designed to enable enterprises, service providers, Web giants and governmental organizations to accelerate, secure and optimize the performance of their data center applications and networks. Our Advanced Core Operating System, or ACOS, platform incorporates our proprietary shared memory architecture, which is designed to utilize multi-core processors efficiently and provide increasing levels of performance with increasing processor density. We offer a range of software based solutions built on top of our ACOS platform that address a variety of performance and security challenges in customer networks. Our products can be deployed in a variety of forms, including optimized hardware appliances and as virtual appliances.

 

The customer benefits of our platform include:

 

   

High Performance Architecture Optimized for Efficiency. By taking advantage of the capabilities of multi-core processors through use of our proprietary shared memory architecture, we believe our ACOS application networking platform enables us to provide our end-customers with products that can deliver superior price performance benefits over products that lack these capabilities. We believe our products can process two to five times more web transactions (measured as Layer 4 connections per second) in certain head to head product comparisons per unit of computing and memory resources, power, rack space or list price.

 

   

Agile and Flexible Platform for a Growing Array of Application Networking Services. Our software based application networking platform is designed to provide flexibility for us to develop new applications to address broadening customer needs and to respond to increasing use of virtual services, software defined networks and other networking industry trends as they arise, helping end-customers integrate new networking models and technologies seamlessly.

 

   

High Performance Network Security Functionality. Our high performance application networking platform delivers a range of security features that decrypt, inspect and authenticate the flow of

 

 

4


Table of Contents
 

application content across a network, and then detect and mitigate the effects of sophisticated cyber security attacks, such as DDoS, that can threaten availability of the largest websites and networks around the world.

 

   

Support for Diverse IT Delivery Models. We offer a portfolio of solutions that address varying IT delivery models, including physical and virtual appliances, as well as licensing models that align to the particular IT delivery models used by the customer. We deliver a consistent set of features and interfaces for management of our products across a variety of IT models, so that enterprises and service providers can be assured of a similar experience regardless of model.

 

   

Predictable Policy Enforcement. The proprietary shared memory architecture of our ACOS platform is designed to assist network administrators in ensuring that desired levels of customer service are achieved and policies regarding network security are enforced.

 

   

Customer-Friendly Business Model. We have organized our product development, product pricing, sales and post-sales technical support efforts to collaborate with our end-customers to identify and satisfy their needs. For example, we offer single all-inclusive pricing for our products, which provides simplicity for end-customers, compared to our competitors who often have more complicated pricing and licensing models.

 

Our Growth Strategy

 

Our goal is to be the global leader in application networking. The key elements of our growth strategy include:

 

   

Extend Product Offerings Using Our ACOS Platform. We believe that our software based platform enables us to innovate quickly to adjust to the dynamics of the application networking market and customer trends. We intend to take advantage of the ACOS platform to continue to extend our portfolio of products, as we have demonstrated through the release of our CGN and TPS product lines.

 

   

Drive Greater Penetration into Our Customer Base. We intend to continue to expand our penetration into existing customer accounts, from an initial deployment of our products to broader deployments across the organization. We also intend to sell new products and services to existing end-customers, which provides us with opportunities for additional revenue.

 

   

Expand Our Global Sales Organization to Attract New Customers. We believe that the global market for application networking is large, and we intend to target new end-customers by continuing to invest in our high-touch sales organization.

 

   

Enhance and Expand Our Channel Partner Ecosystem. We intend to focus on enhancing and expanding in-depth relationships with partners that have strong application networking expertise and a reputation for providing solutions to customers. We also intend to increase the number of our distribution channel partners, OEMs and technology partners in order to expand our sales reach.

 

   

Invest and Enhance Our Marketing Programs. We intend to increase our investment substantially across all aspects of marketing, including product and solution marketing, branding, generation of leads, and corporate communications, to promote awareness of our ACOS platform.

 

Risks Affecting Us

 

Our business is subject to numerous risks and uncertainties, including those highlighted in the section entitled “Risk Factors” immediately following this prospectus summary. These risks include, among others, the following:

 

   

We must successfully anticipate market needs and opportunities, and the market must continue to adopt our application networking products.

 

 

5


Table of Contents
   

Our success depends on our timely development of new products and features to address rapid technological changes and evolving customer requirements.

 

   

We have experienced net losses in recent periods, anticipate increasing our operating expenses in the future and may not achieve or maintain profitability in the future.

 

   

Our operating results are likely to vary significantly from period to period and may be unpredictable, which could cause the trading price of our common stock to decline.

 

   

Timing of shipments at the end of the quarter could cause our revenue for the applicable period to fall below expected levels.

 

   

A limited number of our end-customers, including service providers, make large and concentrated purchases that comprise a significant portion of our revenue.

 

   

We have been and are a party to litigation and claims regarding intellectual property rights, resolution of which has been and may in the future be time-consuming and expensive, as well as require a significant amount of resources to prosecute, defend or make our products non-infringing.

 

   

We may not be able to adequately protect our intellectual property, and if we are unable to protect our intellectual property, our competitive position could be harmed or we could be required to incur significant expenses to enforce our rights.

 

   

We face intense competition in our market, especially from larger, well-established companies, and we may lack sufficient financial or other resources to maintain or improve our competitive position.

 

   

Some of our large end-customers require more favorable terms and conditions from their vendors and may request price concessions. As we seek to sell more products to these end-customers, we may be required to agree to terms and conditions that may have an adverse effect on our business.

 

Corporate Information

 

We were incorporated in the State of California in July 2004 and were reincorporated in the State of Delaware in March 2014. Our principal executive offices are located at 3 West Plumeria Drive, San Jose, California 95134. Our telephone number at that location is (408) 325-8668. Our website address is www.a10networks.com . Information on our website is not part of this prospectus and should not be relied upon in determining whether to make an investment decision.

 

The A10 Networks design logo and the mark “A10” are the property of A10 Networks, Inc. This prospectus contains additional trade names, trademarks and service marks of other companies. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, these other companies.

 

We are an emerging growth company as defined in the Jumpstart Our Business Startups Act of 2012, or JOBS Act. We will remain an emerging growth company until the earliest of (a) the last day of the year (i) following the fifth anniversary of the completion of this offering, (ii) in which we have total annual gross revenue of at least $1.0 billion, or (iii) in which we qualify as a large accelerated filer, which means the market value of our common stock that is held by non-affiliates exceeds $700 million as of the prior June 30, or (b) the date on which we have issued more than $1.0 billion in non-convertible debt securities during the prior three-year period.

 

 

6


Table of Contents

THE OFFERING

 

Common stock offered by us

   9,000,000 shares

Common stock offered by the selling stockholders

   3,500,000 shares

Total common stock offered

   12,500,000 shares

Over-allotment option being offered by the selling stockholders

  

1,875,000 shares

Common stock to be outstanding after this offering

   59,029,124 shares

Use of proceeds

   General corporate purposes, working capital, sales and marketing activities, research and development activities, general and administrative matters and capital expenditures, although we do not currently have any specific or preliminary plans with respect to the use of proceeds for such purposes. Additionally, based on our current operating assumptions, we estimate that we will use between $20.0 million and $30.0 million of our net proceeds from this offering to fully implement our growth strategies described in this prospectus. The exact amount of net proceeds we use to fund our growth plans, however, will depend on the amount of cash generated from our operations and any strategic decisions we may make that could alter our expansion plans and the amount of cash necessary to fund these plans. We may also, in our discretion, use a portion of the net proceeds to pay down certain existing debt obligations. We will not receive any of the proceeds from the sale of shares to be offered by the selling stockholders. See “Use of Proceeds.”

Conflicts of Interest

   Some of our underwriters are affiliates of lenders under our credit agreement. Because we may use more than 5% of the net proceeds that we receive from this offering to reduce the balance under our credit agreement, RBC Capital Markets LLC, J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated may each be deemed to have a “conflict of interest” with us within the meaning of Rule 5121(f)(5)(C) of the Conduct Rules of the Financial Industry Regulatory Authority, Inc., or FINRA. See “Use of Proceeds” and “Underwriters (Conflicts of Interests).”

Proposed New York Stock Exchange symbol

   ATEN

 

 

7


Table of Contents

The number of shares of common stock to be outstanding after this offering is based on 50,029,124 shares of our common stock outstanding as of December 31, 2013, and excludes:

 

   

9,971,381 shares of our common stock issuable upon the exercise of stock options outstanding as of December 31, 2013, with a weighted-average exercise price of $4.14 per share; and

 

   

10,735,029 shares of common stock reserved for future issuances and grants under our stock-based compensation plans, consisting of (i) 1,435,029 shares of common stock reserved for future awards under our 2008 Stock Option Plan as of December 31, 2013, (ii) 7,700,000 shares of common stock reserved for future issuance under our 2014 Equity Incentive Plan, which will become effective on the date of this prospectus, and (iii) 1,600,000 shares of common stock reserved for future issuance under our 2014 Employee Stock Purchase Plan, which will become effective on the date of this prospectus. Upon completion of this offering, any remaining shares available for future awards under our 2008 Stock Option Plan will be added to the shares reserved under our 2014 Equity Incentive Plan, and we will cease granting awards under our 2008 Option Plan. Our 2014 Equity Incentive Plan and 2014 Employee Stock Purchase Plan also provide for automatic annual increases in the number of shares reserved under the plans, as more fully described in “Executive Compensation—Employee Benefit and Stock Plans.”

 

Except as otherwise indicated, all information in this prospectus reflects and assumes:

 

   

the effectiveness of our restated certificate of incorporation, which we will file in connection with the completion of this offering;

 

   

a 1-for-3.75 reverse stock split of our common stock and our Series A, Series B and Series C convertible preferred stock effected in March 2014;

 

   

the automatic conversion of all outstanding shares of our convertible preferred stock and redeemable convertible preferred stock into an aggregate of 39,997,114 shares of common stock upon the completion of this offering;

 

   

that we will not, under the terms of our Series D redeemable convertible preferred stock, issue any shares of common stock or make any payment to holders of the Series D preferred stock as a preference payment in connection with this offering, as described on page 38 of the section entitled “Risk Factors”;

 

   

no exercise of outstanding options subsequent to December 31, 2013; and

 

   

no exercise of the underwriters’ over-allotment option.

 

 

8


Table of Contents

SUMMARY CONSOLIDATED FINANCIAL DATA

 

The following tables summarize our consolidated financial data. You should read the following tables in conjunction with “Selected Consolidated Financial Data,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements, related notes and other financial information included elsewhere in this prospectus. We derived the summary consolidated statements of operations data for the years ended December 31, 2011, 2012 and 2013 from our audited consolidated financial statements included elsewhere in this prospectus. In our opinion, such financial statements include all adjustments, consisting only of normal recurring adjustments, that we consider necessary for a fair presentation of the financial information set forth in those statements. Our historical operating results are not necessarily indicative of results to be expected in the future.

 

     Year Ended
December 31,
 
     2011     2012     2013  
     (In thousands, except per share data)  

Consolidated Statements of Operations Data:

      

Revenue:

    

Products

   $ 79,763      $ 99,891      $ 112,045   

Services

      11,515        20,175        29,693   
  

 

 

   

 

 

   

 

 

 

Total revenue

     91,278        120,066        141,738   

Cost of revenue (1) :

    

Products

     16,442        18,619        25,284   

Services

     2,033        5,891        8,112   
  

 

 

   

 

 

   

 

 

 

Total cost of revenue

     18,475        24,510        33,396   
  

 

 

   

 

 

   

 

 

 

Gross profit

     72,803        95,556        108,342   

Operating expenses (1) :

    

Sales and marketing

     34,504        51,323        70,756   

Research and development

     16,652        25,513        33,348   

General and administrative

     3,110        10,225        15,556   

Litigation

     9,524        95,515        11,525   
  

 

 

   

 

 

   

 

 

 

Total operating expenses

     63,790        182,576        131,185   
  

 

 

   

 

 

   

 

 

 

Income (loss) from operations

     9,013        (87,020     (22,843

Other income (expense), net:

    

Interest expense

     (241     (135     (1,495

Interest income and other income (expense), net

     (618     (2,237     (2,118
  

 

 

   

 

 

   

 

 

 

Total other income (expense), net

     (859     (2,372     (3,613
  

 

 

   

 

 

   

 

 

 

Income (loss) before provision for income taxes

     8,154        (89,392     (26,456

Provision for income taxes

     850        758        640   
  

 

 

   

 

 

   

 

 

 

Net income (loss)

     7,304        (90,150     (27,096

Accretion of redeemable convertible preferred stock dividend (2)

                   (1,982
  

 

 

   

 

 

   

 

 

 

Net income available (loss attributable) to common stockholders

   $ 7,304      $ (90,150   $ (29,078
  

 

 

   

 

 

   

 

 

 

Net income available (loss attributable) to common stockholders, basic

   $ 943      $ (90,150   $ (29,078
  

 

 

   

 

 

   

 

 

 

 

 

9


Table of Contents
     Year Ended
December 31,
 
     2011      2012     2013  
     (In thousands, except per share
data)
 

Net income per share available (loss attributable) to common stockholders (3) :

    

Basic

   $ 0.13       $ (10.80   $ (3.14
  

 

 

    

 

 

   

 

 

 

Diluted

   $ 0.12       $ (10.80   $ (3.14
  

 

 

    

 

 

   

 

 

 

Weighted-average shares used in computing net income per share available (loss attributable) to common stockholders (3) :

    

Basic

     7,397         8,344        9,262   
  

 

 

    

 

 

   

 

 

 

Diluted

     10,403         8,344        9,262   
  

 

 

    

 

 

   

 

 

 

Pro forma net loss per share attributable to common stockholders (unaudited) (3) :

       

Basic

        $ (0.62
       

 

 

 

Diluted

        $ (0.62
       

 

 

 

Weighted-average shares used in computing pro forma net loss attributable to common stockholders (unaudited) (3) :

       

Basic

          43,723   
       

 

 

 

Diluted

          43,723   
       

 

 

 

Supplemental pro forma net loss attributable to common stockholders
(unaudited)
(4) :

       

Basic

        $ (0.61
       

 

 

 

Diluted

        $ (0.61
       

 

 

 

Supplemental pro forma weighted-average common shares outstanding used in computing supplemental pro forma net loss attributable to common stockholders (unaudited) (4) :

       

Basic

          44,087   
       

 

 

 

Diluted

          44,087   
       

 

 

 

Other Financial Data:

       

Adjusted EBITDA (loss) (5)

   $ 20,227       $ 15,110      $ (4,164
  

 

 

    

 

 

   

 

 

 

 

(1)   Results above include stock-based compensation expense as follows:

 

     Year Ended
December 31,
 
     2011      2012      2013  
     (In thousands)  

Cost of revenue

   $ 49       $ 87       $ 162   

Sales and marketing

     696         1,316         2,228   

Research and development

     551         776         1,356   

General and administrative

     168         361         536   
  

 

 

    

 

 

    

 

 

 

Total stock-based compensation expense

   $ 1,464       $ 2,540       $ 4,282   
  

 

 

    

 

 

    

 

 

 

 

(2)   The redemption price of our Series D redeemable convertible preferred stock accretes at the rate of 6.0% per annum, compounding annually. In the event of a qualified initial public offering, the redeemable convertible preferred stock will automatically convert into common stock. See Note 8 to our consolidated financial statements appearing elsewhere in this prospectus.
(3)   See Notes 1 and 11 to our consolidated financial statements appearing elsewhere in this prospectus for an explanation of the calculations of basic and diluted net income per share available (loss attributable) to common stockholders.

 

 

10


Table of Contents
(4)   See Notes 1 and 11 to our consolidated financial statements appearing elsewhere in this prospectus for an explanation of the calculation of supplemental basic and diluted pro forma net loss per share attributable to common stockholders.
(5)   See “Adjusted EBITDA” below for more information and for a reconciliation of net income (loss) to Adjusted EBITDA (loss).

 

     As of
December 31, 2013
 
     Actual     Pro
Forma (1)
    Pro  Forma
as
Adjusted (2)(3)
 
    

(In thousands)

 

Consolidated Balance Sheet Data:

      

Cash and cash equivalents

   $ 20,793      $   20,793      $ 113,473   

Working capital

     15,122        14,822        107,502   

Total assets

     93,794        93,794        186,474   

Total debt

     20,000        20,000          

Deferred revenue, net—current and long-term

     41,232        41,232        41,232   

Redeemable convertible preferred stock

     81,426                 

Convertible preferred stock

     44,749                 

Total stockholders’ equity (deficit)

     (134,880     (9,005     103,675   

 

(1)   Pro forma consolidated balance sheet data reflect (i) the automatic conversion of all outstanding shares of our convertible preferred stock and redeemable convertible preferred stock into 39,997,114 shares of our common stock upon completion of this offering, and (ii) the reduction in working capital and increase in accumulated deficit of $0.3 million to pay a contingent payment to a lender.
(2)   Pro forma as adjusted consolidated balance sheet data reflect: (i) the items described in footnote 1 above; (ii) the application of the net proceeds from this offering to repay the outstanding borrowings under our credit facility, which were $20.0 million as of December 31, 2013; and (iii) the receipt of $112.7 million in net proceeds, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us, from the sale of shares of common stock by us in this offering at an assumed initial public offering price of $14.00 per share, which is the midpoint of the estimated offering price range set forth on the cover page of this prospectus.
(3)   A $1.00 increase or decrease in the assumed initial public offering price of $14.00 per share, which is the midpoint of the estimated offering price range set forth on the cover page of this prospectus, would increase or decrease our pro forma as adjusted cash and cash equivalents, working capital, total assets, total stockholders’ equity (deficit) by approximately $8.4 million, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting estimated underwriting discounts and commissions payable by us.

 

Other Financial Data

 

Adjusted EBITDA

 

Adjusted EBITDA (loss) is an important measure used by our management and board of directors to evaluate our operating performance, develop future operating plans, make strategic decisions for the allocation of capital and determine our compliance with debt covenants. In particular, the exclusion of certain expenses, primarily the amounts paid in settlement of, and other expenses associated with, litigation between ourselves and Brocade Communication Systems, Inc., in calculating Adjusted EBITDA facilitates comparisons of our operating performance on a period-to-period basis. Accordingly, we believe that Adjusted EBITDA also may provide useful information to investors and others in understanding and evaluating our operating results in the same manner as our management and board of directors. We define Adjusted EBITDA as our net income (loss) minus: (i) amounts paid in settlement of, and other expenses associated with, the Brocade litigation, (ii) interest expense, (iii) interest income and other (income) expense, net, which primarily includes changes in the fair value of convertible preferred stock warrant liabilities and foreign exchange gains and losses, (iv) stock-based compensation, (v) depreciation and amortization and (vi) our provision for income taxes.

 

 

11


Table of Contents

Reconciliation of Net Income (Loss) to Adjusted EBITDA (Loss)

 

     Year Ended
December  31,
 
     2011      2012     2013  
     (In thousands)  

Net income (loss)

   $ 7,304       $ (90,150   $ (27,096

Brocade litigation

        6,333         94,296        7,317   

Interest expense

     241         135        1,495   

Interest income and other (income) expense, net

     618         2,237        2,118   

Stock-based compensation

     1,464         2,540        4,282   

Depreciation and amortization

     3,417         5,294        7,080   

Provision for income taxes

     850         758        640   
  

 

 

    

 

 

   

 

 

 

Adjusted EBITDA (loss)

   $ 20,227       $ 15,110      $ (4,164
  

 

 

    

 

 

   

 

 

 

 

Adjusted EBITDA (loss) is a supplemental measure of financial performance that is not required by, or presented in accordance with, U.S. generally accepted accounting principles, or GAAP. Our use of Adjusted EBITDA has limitations as an analytical tool, and you should not consider it in isolation or as a substitute for net income or any of our other operating results reported under GAAP. Adjusted EBITDA excludes some costs, namely, non-cash stock-based compensation and depreciation and amortization, that are recurring, and therefore it does not reflect the non-cash impact of such expenses or working capital needs even though they will continue for the foreseeable future. Moreover, other companies may calculate Adjusted EBITDA differently or may use other measures to evaluate their performance, both of which could reduce the usefulness of our Adjusted EBITDA as a tool for comparison. Because of these limitations, you should consider Adjusted EBITDA alongside other financial performance measures, including net income (loss), various cash flow metrics, and other financial results presented in accordance with GAAP.

 

 

12


Table of Contents

RISK FACTORS

 

Investing in our common stock involves a high degree of risk. You should carefully consider the risks and uncertainties described below, together with all of the other information in this prospectus, including our consolidated financial statements and related notes, before investing in our common stock. The risks and uncertainties described below are not the only ones we face. Additional risks and uncertainties that we are unaware of, or that we currently believe are not material, may also become important factors that affect us. If any of the following risks occur, our business, financial condition, operating results, and prospects could be materially harmed. In that event, the price of our common stock could decline, and could lose part or all of your investment.

 

If we do not successfully anticipate market needs and opportunities or if the market does not continue to adopt our application networking products, our business, financial condition and results of operations could be significantly harmed.

 

The application networking market is rapidly evolving and difficult to predict. Technologies, customer requirements, security threats and industry standards are constantly changing. As a result, we must anticipate future market needs and opportunities and then develop new products or enhancements to our current products that are designed to address those needs and opportunities, and we may not be successful in doing so.

 

Even if we are able to anticipate, develop and commercially introduce new products and enhancements that address the market’s needs and opportunities, there can be no assurance that new products or enhancements will achieve widespread market acceptance. For example, organizations that use other conventional or first-generation application networking products for their needs may believe that these products are sufficient. In addition, as we launch new product offerings, organizations may not believe that such new product offerings offer any additional benefits as compared to the existing application networking products that they currently use. Accordingly, organizations may continue allocating their IT budgets for conventional or first-generation application networking products and may not adopt our products, regardless of whether our products can offer superior performance or security.

 

If we fail to anticipate market needs and opportunities or if the market does not continue to adopt our application networking products, then market acceptance and sales of our current and future application networking products could be substantially decreased or delayed, we could lose customers, and our revenue may not grow or may decline. Any of such events would significantly harm our business, financial condition and results of operations.

 

Our success depends on our timely development of new products and features to address rapid technological changes and evolving customer requirements. If we are unable to timely develop new products and features that adequately address these changes and requirements, our business and operating results could be adversely affected.

 

Changes in application software technologies, data center and communications hardware, networking software and operating systems, and industry standards, as well as our end-customers’ continuing business growth, result in evolving application networking needs and requirements. Our continued success depends on our ability to identify and develop in a timely manner new products and new features for our existing products that meet these needs and requirements.

 

Our future plans include significant investments in research and development and related product opportunities. Developing our products and related enhancements is time-consuming and expensive. We have made significant investments in our research and development team in order to address these product development needs. Our investments in research and development may not result in significant design and performance improvements or marketable products or features, or may result in products that are more expensive than anticipated. We may take longer to generate revenue, or generate less revenue, than we anticipate from our new products and product enhancements. We believe that we must continue to dedicate a significant amount of resources to our research and development efforts to maintain our competitive position.

 

13


Table of Contents

If we are unable to develop new products and features to address technological changes and new customer requirements in the application networking market or if our investments in research and development do not yield the expected benefits in a timely manner, our business and operating results could be adversely affected.

 

We have experienced net losses in recent periods, anticipate increasing our operating expenses in the future and may not achieve or maintain profitability in the future. If we cannot achieve or maintain profitability, our financial performance will be harmed and our business may suffer.

 

We experienced net losses for the years ended December 31, 2012 and 2013. Although we experienced revenue growth over these same periods and had achieved profitability in prior year periods, we may not be able to sustain or increase our revenue growth or achieve profitability in the future or on a consistent basis. During 2013, we have invested in our sales, marketing and research and development teams in order to develop, market and sell our products. We expect to continue to invest significantly in these areas in the future. As a result of these increased expenditures, we will have to generate and sustain increased revenue, manage our cost structure and avoid significant liabilities to achieve future profitability. In particular, in 2012 and 2013, we incurred substantial expenses associated with defending ourselves in separate litigation matters involving Brocade Communications Systems, Inc. and Radware Ltd. and in our settlement of the Brocade litigation. As a public company, we will also incur significant accounting, legal and other expenses that we did not incur as a private company.

 

Revenue growth may slow or decline, and we may incur significant losses in the future for a number of possible reasons, including our inability to develop products that achieve market acceptance, general economic conditions, increasing competition, decreased growth in the markets in which we operate, or our failure for any reason to capitalize on growth opportunities. Additionally, we may encounter unforeseen operating expenses, difficulties, complications, delays and other unknown factors that may result in losses in future periods. If these losses exceed our expectations or our revenue growth expectations are not met in future periods, our financial performance will be harmed and our stock price could be volatile or decline.

 

Our operating results are likely to vary significantly from period to period and may be unpredictable, which could cause the trading price of our common stock to decline.

 

Our operating results – in particular, revenue, margins and operating expenses – have fluctuated in the past, and we expect this will continue, which makes it difficult for us to predict our future operating results. The timing and size of sales of our products are highly variable and difficult to predict and can result in significant fluctuations in our revenue from period to period. This is particularly true of sales to our largest end-customers, such as service providers, Web giants and governmental organizations, who typically make large and concentrated purchases and for whom sales cycles can be long, as a result of their complex networks and data centers. Our quarterly results may vary significantly based on when these large end-customers place orders with us.

 

Our operating results may also fluctuate due to a number of other factors, many of which are outside of our control and may be difficult to predict. In addition to other risks listed in this “Risk Factors” section, factors that may affect our operating results include:

 

   

fluctuations in purchases from, or loss of, large customers;

 

   

the budgeting cycles and purchasing practices of end-customers;

 

   

our ability to attract and retain new end-customers;

 

   

changes in demand for our products and services, including seasonal variations in customer spending patterns or cyclical fluctuations in our markets;

 

   

our reliance on shipments at the end of our quarters;

 

   

variations in product mix or geographic locations of our sales, which can affect the revenue we realize for those sales;

 

14


Table of Contents
   

the timing and success of new product and service introductions by us or our competitors;

 

   

our ability to increase the size of our distribution channel and to maintain relationships with important distribution channel partners;

 

   

the effect of currency exchange rates on our revenue and expenses;

 

   

the cost and potential outcomes of existing and future litigation;

 

   

the effect of discounts negotiated by our largest end-customers for sales or pricing pressure from our competitors;

 

   

changes in the growth rate of the application networking market or changes in market needs;

 

   

inventory write downs, which may be necessary for our older products when our new products are launched and adopted by our end-customers; and

 

   

our third-party manufacturers’ and component suppliers’ capacity to meet our product demand forecasts on a timely basis, or at all.

 

Any one of the factors above or the cumulative effect of some of these factors may result in significant fluctuations in our financial and other operating results. This variability and unpredictability could result in our failure to meet our or our investors’ or securities analysts’ revenue, margin or other operating results expectations for a particular period, resulting in a decline in the trading price of our common stock.

 

Reliance on shipments at the end of the quarter could cause our revenue for the applicable period to fall below expected levels.

 

As a result of end-customer buying patterns and the efforts of our sales force and distribution channel partners to meet or exceed their sales objectives, we have historically received a substantial portion of purchase orders and generated a substantial portion of revenue during the last few weeks of each quarter. We can recognize such revenue in the quarter received, however, only if all of the requirements of revenue recognition, especially shipment, are met by the end of the quarter. In addition, any significant interruption in our information technology systems, which manage critical functions such as order processing, revenue recognition, financial forecasts, inventory and supply chain management, could result in delayed order fulfillment and thus decreased revenue for that quarter. If expected revenue at the end of any quarter is delayed for any reason, including the failure of anticipated purchase orders to materialize, our third-party manufacturers’ inability to manufacture and ship products prior to quarter-end to fulfill purchase orders received near the end of the quarter, our failure to manage inventory to meet demand, our inability to release new products on schedule, any failure of our systems related to order review and processing, or any delays in shipments or achieving specified acceptance criteria, our revenue for that quarter could fall below our, or our investors’ or securities analysts’ expectations, resulting in a decline in the trading price of our common stock.

 

A limited number of our end-customers, including service providers, make large and concentrated purchases that comprise a significant portion of our revenue. Any loss or delay of expected purchases by our largest end-customers could adversely affect our operating results.

 

As a result of the nature of our target market and the current stage of our development, a substantial portion of our revenue in any period comes from a limited number of large end-customers, including service providers. For example, NTT DoCoMo, Inc., through a reseller, accounted for approximately 32% of our total revenue during the year ended December 31, 2012 and approximately 13% of our total revenue during the year ended December 31, 2013. In addition, during the years ended December 31, 2012 and 2013, purchases from our ten largest end-customers accounted for approximately 49% and 43% of our total revenue. The composition of the group of these ten largest end-customers changes from period to period, but often includes service providers, who accounted for approximately 53% and 47% of our total revenue during the years ended December 31, 2012 and 2013.

 

15


Table of Contents

Sales to these large end-customers have typically been characterized by large but irregular purchases with long initial sales cycles. After initial deployment, subsequent purchases of our products typically have a more compressed sales cycle. The timing of these purchases and of the requested delivery of the purchased product is difficult to predict. As a consequence, any acceleration or delay in anticipated product purchases by or requested deliveries to our largest end-customers could materially affect our revenue and operating results in any quarter and cause our quarterly revenue and operating results to fluctuate from quarter to quarter.

 

We cannot provide any assurance that we will be able to sustain or increase our revenue from our largest end-customers nor that we will be able to offset any absence of significant purchases by our largest end-customers in any particular period with purchases by new or existing end-customers in that or a subsequent period. We expect that sales of our products to a limited number of end-customers will continue to contribute materially to our revenue for the foreseeable future. The loss of, or a significant delay or reduction in purchases by, a small number of end-customers could have a material adverse effect on our consolidated financial position, results of operations or cash flows.

 

We have been and are a party to litigation and claims regarding intellectual property rights, resolution of which has been and may in the future be time-consuming, expensive and adverse to us, as well as require a significant amount of resources to prosecute, defend, or make our products non-infringing.

 

Our industry is characterized by the existence of a large number of patents and by increasingly frequent claims and related litigation based on allegations of infringement or other violations of patent and other intellectual property rights. In the ordinary course of our business, we have been and are involved in disputes and licensing discussions with others regarding their patents and other claimed intellectual property and proprietary rights. Intellectual property infringement and misappropriation lawsuits and other claims are subject to inherent uncertainties due to the complexity of the technical and legal issues involved, and we cannot be certain that we will be successful in defending ourselves against such claims or in concluding licenses on reasonable terms or at all.

 

We currently have fewer issued patents than our major competitors, and therefore may not be able to utilize our patent portfolio effectively to assert defenses or counterclaims in response to patent infringement claims or litigation brought against us by third parties. Further, litigation may involve patent holding companies or other adverse patent owners that have no relevant product revenue and against which our potential patents may provide little or no deterrence. In addition, many potential litigants have the capability to dedicate substantially greater resources than we can to enforce their intellectual property rights and to defend claims that may be brought against them. We expect that infringement claims may increase as the numbers of product types and the number of competitors in our market increases. Also, to the extent we gain greater visibility, market exposure and competitive success, we face a higher risk of being the subject of intellectual property infringement claims.

 

If we are found in the future to infringe the proprietary rights of others, or if we otherwise settle such claims, we could be compelled to pay damages or royalties and either obtain a license to those intellectual property rights or alter our products such that they no longer infringe. Any license could be very expensive to obtain or may not be available at all. Similarly, changing our products or processes to avoid infringing the rights of others may be costly, time-consuming or impractical. Alternatively, we could also become subject to an injunction or other court order that could prevent us from offering our products. Any of these claims, regardless of their merit, may be time-consuming, result in costly litigation and diversion of technical and management personnel, or require us to cease using infringing technology, develop non-infringing technology or enter into royalty or licensing agreements.

 

Many of our commercial agreements require us to indemnify our end-customers, distributors and resellers for certain third-party intellectual property infringement actions related to our technology, which may require us to defend or otherwise become involved in such infringement claims, and we could incur liabilities in excess of the amounts we have received for the relevant products and/or services from our end-customers, distributors or resellers. These types of claims could harm our relationships with our end-customers, distributors and resellers,

 

16


Table of Contents

may deter future end-customers from purchasing our products or could expose us to litigation for these claims. Even if we are not a party to any litigation between an end-customer, distributor or reseller, on the one hand, and a third party, on the other hand, an adverse outcome in any such litigation could make it more difficult for us to defend our intellectual property rights in any subsequent litigation in which we are a named party.

 

We have in the past been involved in two litigation matters with F5 Networks, Inc., a litigation matter with Allegro Software Development, Inc. and a litigation matter with Brocade, all of which have since settled. We are currently party to two litigation matters. In May 2013, Radware filed suit against us for patent infringement in the United States District Court for the Northern District of California, alleging that our AX and EX Series products infringe three Radware patents. In November 2013, Parallel Networks, LLC, which we believe is a patent holding company, filed a lawsuit against us in the United States District Court for the District of Delaware alleging that our AX and Thunder series products infringe two of their patents. These plaintiffs are seeking injunctive relief, damages, costs and, in the case of the Radware lawsuit, attorneys’ fees. While we intend to defend ourselves vigorously against the allegations in these lawsuits, these litigation matters, regardless of the outcome, could result in significant costs and diversion of our management’s efforts. As an example of how intellectual property litigation could harm our business and results of operations, in the now-settled litigation with Brocade, a jury had rendered a verdict that (1) Brocade had proved non-willful patent infringement claims, non-willful copyright infringement claims and trade secret misappropriation claims against us, and (2) Brocade had proved intentional interference with contract claims against us and against Lee Chen, our founder and Chief Executive Officer. The court determined, subsequent to the jury verdict, that (i) a re-trial was needed with respect to the amount of damages for the patent infringement claims, but that the jury verdict that patent infringement existed should be maintained, (ii) the $60.0 million in damages awarded by the jury for the copyright infringement claims was appropriate, (iii) the one dollar in damages awarded by the jury for the trade secret misappropriation claims was appropriate, (iv) the one dollar in damages awarded by the jury for the intentional interference with contract claims was appropriate, and (v) the punitive damages of $500,000 awarded by the jury with respect to the intentional interference with contract claims against each of the company and Lee Chen were excessive and should be limited to the constitutionally maximum amount. The court also entered permanent injunctions against us as a result of the patent infringement and trade secret determinations, which were subsequently dissolved as a result of the settlement. At the time of the settlement, the appeals to the Court of Appeals for the Federal Circuit were unresolved. As a result of all these circumstances with respect to this litigation with Brocade, we determined that it was in our best interest to settle with Brocade in May 2013, and that settlement included (1) a dismissal of all claims against the individual defendants, including Lee Chen, which was followed by entry of a final judgment in favor of the individual defendants on all claims, (2) a $75.0 million dollar cash payment by us to Brocade, (3) a license by us to Brocade of all of our issued patents, our pending patent applications, and any future patents and patent applications that we may acquire, obtain, apply for or have a right to license to Brocade through May 2025, (4) a covenant by us not to sue Brocade on claims relating to its products and services through May 2025, (5) certain covenants by Brocade not to sue us, which are intended to prevent lawsuits against our Layer 4-7 products by Brocade with respect to thirteen specific Brocade patent families through May 2025 for the life of each such patent and with respect to any other Brocade patents through May 2017 and (6) general releases to all parties. A satisfaction of judgment was entered by the court in October 2013.

 

We may not be able to adequately protect our intellectual property, and if we are unable to do so, our competitive position could be harmed, or we could be required to incur significant expenses to enforce our rights.

 

We rely on a combination of patent, copyright, trademark and trade secret laws, and contractual restrictions on disclosure of confidential and proprietary information, to protect our intellectual property. We cannot be certain that the intellectual property we decide to protect will be desirable or necessary to our competitors or will ultimately have commercial value, or that we will be the first to seek protection for the intellectual property we attempt to protect.

 

17


Table of Contents

We also rely in part on confidentiality and/or assignment agreements with our technology partners, employees, consultants, advisors and others. We did not, however, obtain general employee confidentiality and assignment agreements from certain former employees who worked with us prior to July 2010, although we did receive specific assignments from each of these employees who was an inventor of any technologies that we patented. These protections and agreements may not effectively prevent disclosure of our confidential information and may not provide an adequate remedy in the event of unauthorized disclosure. In addition, others may independently discover our trade secrets and intellectual property information we thought to be proprietary, and in these cases we would not be able to assert any trade secret rights against those parties. Despite our efforts to protect our intellectual property, unauthorized parties may attempt to copy or otherwise obtain and use our intellectual property or technology. Monitoring unauthorized use of our intellectual property is difficult and expensive, we have not made such monitoring a priority to date and will not likely make this a priority in the future. We cannot be certain that the steps we have taken or will take will prevent misappropriation of our technology, particularly in foreign countries where the laws may not protect our proprietary rights as fully as in the United States.

 

If we fail to protect our intellectual property adequately, our competitors might gain access to our technology, and our business might be harmed. In addition, even if we protect our intellectual property, we may need to license it to competitors, which could also be harmful. For example, we have already licensed all of our issued patents, pending applications, and future patents and patent applications that we may acquire, obtain, apply for or have a right to license to Brocade until May 2025, for the life of each such patent. In addition, we might incur significant expenses in defending our intellectual property rights. Any of our patents, copyrights, trademarks or other intellectual property rights could be challenged by others or invalidated through administrative process or litigation.

 

We may in the future initiate claims or litigation against third parties for infringement of our proprietary rights or to establish the validity of our proprietary rights. Any litigation, whether or not resolved in our favor, could result in significant expense to us and divert the efforts of our management and technical personnel, as well as cause other claims to be made against us, which might adversely affect our business, operating results and financial condition.

 

We face intense competition in our market, especially from larger, well-established companies, and we may lack sufficient financial or other resources to maintain or improve our competitive position.

 

The application networking market is intensely competitive, and we expect competition to increase in the future. To the extent that we sell our solutions in adjacent markets, we expect to face intense competition in those markets as well. We believe that our main competitors fall into three categories:

 

   

Companies that sell products in the traditional ADC market. In the ADC market, we compete against other companies that are well established in this market, including F5 Networks, Inc., Brocade, Cisco Systems, Inc., Citrix Systems, Inc., and Radware Ltd.

 

   

Companies that sell CGN products. Our purpose-built CGN solution competes primarily against products originally designed for other networking purposes, such as edge routers and security appliances from vendors such as Alcatel-Lucent USA Inc., Cisco Systems, Inc. and Juniper Networks, Inc., and

 

   

Companies that sell traditional DDoS mitigation products. We are a new entrant into the DDoS market and first publicly launched our DDoS detection and mitigation solution, TPS, in January 2014. We believe our principle competitors in this market are Arbor Networks, Inc., a subsidiary of Danaher Corporation, and Radware.

 

Many of our competitors are substantially larger and have greater financial, technical, research and development, sales and marketing, manufacturing, distribution and other resources and greater name recognition.

 

18


Table of Contents

In addition, some of our larger competitors have broader products offerings and could leverage their customer relationships based on their other products. Potential customers who have purchased products from our competitors in the past may also prefer to continue to purchase from these competitors rather than change to a new supplier regardless of the performance, price or features of the respective products. We could also face competition from new market entrants, which may include our current technology partners. As we continue to expand globally, we may also see new competitors in different geographic regions. Such current and potential competitors may also establish cooperative relationships among themselves or with third parties that may further enhance their resources.

 

Many of our existing and potential competitors enjoy substantial competitive advantages, such as:

 

   

longer operating histories;

 

   

the capacity to leverage their sales efforts and marketing expenditures across a broader portfolio of products and services at a greater range of prices;

 

   

the ability to incorporate functionality into existing products to gain business in a manner that discourages users from purchasing our products, including through selling at zero or negative margins, product bundling or closed technology platforms;

 

   

broader distribution and established relationships with distribution channel partners in a greater number of worldwide locations;

 

   

access to larger end-customer bases;

 

   

the ability to use their greater financial resources to attract our research and development engineers as well as other employees of ours;

 

   

larger intellectual property portfolios; and

 

   

the ability to bundle competitive offerings with other products and services.

 

Our ability to compete will depend upon our ability to provide a better solution than our competitors at a competitive price. We may be required to make substantial additional investments in research and development, marketing and sales in order to respond to competition, and there is no assurance that these investments will achieve any returns for us or that we will be able to compete successfully in the future. We also expect increased competition if our market continues to expand. Moreover, conditions in our market could change rapidly and significantly as a result of technological advancements or other factors.

 

In addition, current or potential competitors may be acquired by third parties that have greater resources available. As a result of these acquisitions, our current or potential competitors might take advantage of the greater resources of the larger organization to compete more vigorously or broadly with us. In addition, continued industry consolidation might adversely impact end-customers’ perceptions of the viability of smaller and even medium-sized networking companies and, consequently, end-customers’ willingness to purchase from companies like us.

 

As a result, increased competition could lead to fewer end-customer orders, price reductions, reduced margins and loss of market share.

 

Some of our large end-customers demand favorable terms and conditions from their vendors and may request price concessions. As we seek to sell more products to these end-customers, we may agree to terms and conditions that may have an adverse effect on our business.

 

Some of our large end-customers have significant purchasing power and, accordingly, have requested from us and received more favorable terms and conditions, including lower prices, than we typically provide. As we seek to sell products to this class of end-customer, we may agree to these terms and conditions, which may include terms that reduce our gross margin and have an adverse effect on our business.

 

19


Table of Contents

If we are unable to attract new end-customers, sell additional products to our existing end-customers or achieve the anticipated benefits from our investment in additional sales personnel and resources, our revenue may decline, and our gross margin will be adversely affected.

 

To maintain and increase our revenue, we must continually add new end-customers and sell additional products to existing end-customers. The rate at which new and existing end-customers purchase solutions depends on a number of factors, including some outside of our control, such as general economic conditions. If our efforts to sell our solutions to new end-customers and additional solutions to our existing end-customers are not successful, our business and operating results will suffer.

 

In recent periods, we have been adding personnel and other resources to our sales and marketing functions, as we focus on growing our business, entering new markets and increasing our market share. We expect to incur significant additional expenses by hiring additional sales personnel and expanding our international operations in order to seek revenue growth. The return on these and future investments may be lower, or may be realized more slowly, than we expect, if realized at all. If we do not achieve the benefits anticipated from these investments, or if the achievement of these benefits is delayed, our growth rates will decline, and our gross margin would likely be adversely affected.

 

Our gross margin may fluctuate from period to period based on the mix of products sold, the geographic location of our customers, price discounts offered, required inventory write downs and current exchange rate fluctuations.

 

Our gross margin may fluctuate from period to period in response to a number of factors, such as the mix of our products sold and the geographic locations of our sales. Our products tend to have varying gross margins in different geographic regions. We also may offer pricing discounts from time to time as part of a targeted sales campaign or as a result of pricing pressure from our competitors. In addition, our larger end-customers may negotiate pricing discounts in connection with large orders they place with us. The sale of our products at discounted prices could have a negative impact on our gross margin. We also must manage our inventory of existing products when we introduce new products. For example, in the fourth quarter of 2013, our gross margin decreased to 74% due primarily to geographical mix and selling some end-of-life product at low margins. If we are unable to sell the remaining inventory of our older products prior to or following the launch of such new product offerings, we may be forced to write down inventory for such older products, which could also negatively affect our gross margin. Our gross margin may also vary based on international currency exchange rates. In general, our sales are denominated in U.S. Dollars; however, in Japan they are denominated in Yen. Changes in the Dollar/Yen exchange rate may therefore affect our actual revenue and gross margin.

 

We generate a significant amount of revenue from sales to distributors, resellers, and end-customers outside of the United States, and we are therefore subject to a number of risks that could adversely affect these international sources of our revenue.

 

A significant portion of our revenue is generated in international markets, including Japan, Western Europe, China, Taiwan and South Korea. During 2012 and 2013, approximately 64% and 52% of our total revenue was generated from customers located outside of the United States. As a result, we must hire and train experienced personnel to staff and manage our foreign operations. To the extent that we experience difficulties in recruiting, training, managing and retaining an international staff, and specifically sales management and sales personnel, we may experience difficulties in sales productivity in foreign markets. We also seek to enter into distributor and reseller relationships with companies in certain international markets where we do not have a local presence. If we are not able to maintain successful distributor relationships internationally or recruit additional companies to enter into distributor relationships, our future success in these international markets could be limited. Business practices in the international markets that we serve may differ from those in the United States and may require us in the future to include terms in customer contracts other than our standard terms. To the extent that we may enter into customer contracts in the future that include non-standard terms, our operating results may be adversely impacted.

 

20


Table of Contents

We have a significant presence in international markets and plan to continue to expand our international operations, which exposes us to a number of risks that could affect our future growth.

 

Our sales team is comprised of field sales and inside sales personnel who are organized by geography and maintain sales presence in 23 countries, including in the following countries and regions: United States, Western Europe, Japan, China, Taiwan and South Korea. We expect to continue to increase our sales headcount in all markets, particularly in markets where we currently do not have a sales presence. As we continue to expand our international sales and operations, we are subject to a number of risks, including the following:

 

   

greater difficulty in enforcing contracts and accounts receivable collection and longer collection periods;

 

   

increased expenses incurred in establishing and maintaining office space and equipment for our international operations;

 

   

fluctuations in exchange rates between the U.S. Dollar and foreign currencies in markets where we do business;

 

   

greater difficulty in recruiting local experienced personnel, and the costs and expenses associated with such activities;

 

   

general economic and political conditions in these foreign markets;

 

   

economic uncertainty around the world, including continued economic uncertainty as a result of sovereign debt issues in Europe;

 

   

management communication and integration problems resulting from cultural and geographic dispersion;

 

   

risks associated with trade restrictions and foreign legal requirements, including the importation, certification, and localization of our products required in foreign countries;

 

   

greater risk of unexpected changes in regulatory practices, tariffs, and tax laws and treaties;

 

   

the uncertainty of protection for intellectual property rights in some countries;

 

   

greater risk of a failure of foreign employees to comply with both U.S. and foreign laws, including antitrust regulations, the U.S. Foreign Corrupt Practices Act, and any trade regulations ensuring fair trade practices; and

 

   

heightened risk of unfair or corrupt business practices in certain geographies and of improper or fraudulent sales arrangements that may impact financial results and result in restatements of, or irregularities in, financial statements.

 

Because of our worldwide operations, we are also subject to risks associated with compliance with applicable anticorruption laws. One such applicable anticorruption law is the U.S. Foreign Corrupt Practices Act, or FCPA, which generally prohibits U.S. companies and their employees and intermediaries from making payments to foreign officials for the purpose of obtaining or keeping business, securing an advantage, or directing business to another, and requires public companies to maintain accurate books and records and a system of internal accounting controls. Under the FCPA, U.S. companies may be held liable for actions taken by directors, officers, employees, agents, or other strategic or local partners or representatives. As such, if we or our intermediaries, such as channel partners and distributors, fail to comply with the requirements of the FCPA or similar legislation, governmental authorities in the United States and elsewhere could seek to impose civil and/or criminal fines and penalties which could have a material adverse effect on our business, operating results and financial conditions.

 

We are exposed to fluctuations in currency exchange rates, which could negatively affect our results of operations.

 

Our consolidated results of operations and cash flows are subject to fluctuations due to changes in foreign currency exchange rates. Historically, the majority of our revenue contracts are denominated in U.S. Dollars,

 

21


Table of Contents

with the most significant exception being Japan, where we invoice primarily in Yen. Our expenses are generally denominated in the currencies in which our operations are located, which is primarily in North America and Japan. Revenue resulting from selling in local currencies and costs incurred in local currencies are exposed to foreign currency exchange rate fluctuations that can affect our operating income. For example, a hypothetical 10% adverse movement in the Dollar/Yen exchange rate would have resulted in a decrease of $2.8 million in our total revenue and operating income for the year ended December 31, 2012, and a hypothetical 10% favorable movement in the Dollar/Yen exchange rate would have resulted in an increase of $3.5 million in our total revenue and operating income for the year ended December 31, 2012. As exchange rates vary, our operating income may differ from expectations. To date, we have not entered into any hedging arrangements with respect to foreign currency risk or other derivative instruments.

 

Our success depends on our key personnel and our ability to hire, retain and motivate qualified product development, sales, marketing and finance personnel.

 

Our success depends to a significant degree upon the continued contributions of our key management, product development, sales, marketing and finance personnel, many of whom may be difficult to replace. The complexity of our products, their integration into existing networks and ongoing support of our products requires us to retain highly trained professional services, customer support and sales personnel with specific expertise related to our business. Competition for qualified professional services, customer support and sales personnel in our industry is intense, because of the limited number of people available with the necessary technical skills and understanding of our products. We may not be successful in attracting, integrating, or retaining qualified personnel to fulfill our current or future needs, nor may we be successful in keeping the qualified personnel we currently have. Our ability to hire and retain these personnel may be adversely affected by volatility or reductions in the price of our common stock, since these employees are generally granted equity-based awards. Also, to the extent we hire personnel from competitors, we may be subject to allegations that they have been improperly solicited, or that they have divulged proprietary or other confidential information, or that their former employers own their inventions or other work product.

 

Our future performance also depends on the continued services and continuing contributions of our senior management to execute on our business plan and to identify and pursue new opportunities and product innovations. In particular, Lee Chen, our founder and Chief Executive Officer, and Rajkumar Jalan, our Chief Technology Officer, are critical to the development of our technology and the future vision and strategic direction of our company. The loss of services of senior management could significantly delay or prevent the achievement of our development and strategic objectives, which could adversely affect our business, financial condition, and operating results.

 

As a result of becoming a public company, we will be obligated to implement and maintain effective internal control over financial reporting. We may not complete our analysis of our internal control over financial reporting in a timely manner, or our internal control over financial reporting may not be determined to be effective, which may adversely affect investor confidence in our company and, as a result, the value of our common stock.

 

We will be required, pursuant to the Exchange Act, to furnish a report by management on, among other things, the effectiveness of our internal control over financial reporting for the first fiscal year beginning after the effective date of this offering. This assessment will need to include disclosure of any material weaknesses identified by our management in our internal control over financial reporting, as well as, for the second year beginning after the date of this offering, a statement that our auditors have issued an attestation report on our management’s assessment of our internal controls.

 

We are currently evaluating our internal controls, identifying and remediating deficiencies in those internal controls and documenting the results of our evaluation, testing and remediation. We may not be able to complete our evaluation, testing and any required remediation in a timely fashion. During the evaluation and testing process, if we identify one or more material weaknesses in our internal control over financial reporting that we

 

22


Table of Contents

are unable to remediate before the end of the same fiscal year in which the material weakness is identified, we will be unable to assert that our internal control over financial reporting is effective. If we are unable to conclude that our internal control over financial reporting is effective, if our auditors are unable to attest to management’s report on the effectiveness of our internal control over financial reporting, or if we are required to restate our financial statements as a result of ineffective internal control over financial reporting, we could lose investor confidence in the accuracy and completeness of our financial reports, which would cause the price of our common stock to decline.

 

As a public company, we will be required to disclose material changes made in our internal control and procedures on a quarterly basis. However, our independent registered public accounting firm will not be required to formally attest to the effectiveness of our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act until the later of the year following our first annual report required to be filed with the SEC or the date we are no longer an emerging growth company as defined in the JOBS Act, if we take advantage of the exemptions contained in the JOBS Act. To comply with the requirements of being a public company, we may need to undertake various actions, such as implementing new internal controls and procedures and hiring accounting or internal audit staff.

 

We currently have significant deficiencies in our internal control over financial reporting. Failure to properly remediate these significant deficiencies could impair our ability to comply with the accounting and reporting requirements applicable to public companies.

 

We currently have significant deficiencies in our internal control over financial reporting relating to our inadequate design of the financial closing and reporting process. We did not maintain financial close process and procedures that were adequately designed, documented and executed to support the accurate and timely reporting of our financial results. Specifically, during 2013, we did not maintain effective controls in relation to reviews of account reconciliations and the tax provision. Although we are taking steps to strengthen our accounting staff and internal controls and plan to take additional measures to remediate the underlying causes of these significant deficiencies, we cannot at this time estimate how long it will take, and our initiatives may not prove to be successful in remediating these significant deficiencies. If we are unable to successfully remediate these significant deficiencies, it could harm our operating results, cause us to fail to meet our SEC reporting obligations or applicable stock exchange listing requirements on a timely basis, cause our stock price to be adversely affected or result in inaccurate financial reporting or material misstatements in our annual or interim financial statements.

 

If we are not able to maintain and enhance our brand and reputation, our business and operating results may be harmed in tangible or intangible ways.

 

We believe that maintaining and enhancing our brand and reputation are critical to our relationships with, and our ability to attract, new end-customers, technology partners and employees. The successful promotion of our brand will depend largely upon our ability to continue to develop, offer and maintain high-quality products and services, our marketing and public relations efforts, and our ability to differentiate our products and services successfully from those of our competitors. Our brand promotion activities may not be successful and may not yield increased revenue. In addition, extension of our brand to products and uses different from our traditional products and services may dilute our brand, particularly if we fail to maintain the quality of products and services in these new areas. We have in the past, and may in the future, become involved in litigation that could negatively affect our brand. If we do not successfully maintain and enhance our brand and reputation, our growth rate may decline, we may have reduced pricing power relative to competitors with stronger brands or reputations, and we could lose end-customers or technology partners, all of which would harm our business, operating results and financial condition.

 

Adverse general economic conditions or reduced information technology spending may adversely impact our business.

 

A substantial portion of our business depends on the demand for information technology by large enterprises and service providers, the overall economic health of our current and prospective end-customers and the

 

23


Table of Contents

continued growth and evolution of the Internet. The timing of the purchase of our products is often discretionary and may involve a significant commitment of capital and other resources. The recent financial recession resulted in a significant weakening of the economy in the United States and Europe and of the global economy, more limited availability of credit, a reduction in business confidence and activity, deficit-driven austerity measures that continue to affect governments and educational institutions, and other difficulties that may affect one or more of the industries to which we sell our products and services. If economic conditions in the United States, Europe and other key markets for our products continue to remain uncertain or deteriorate further, many end-customers may delay or reduce their IT spending. This could result in reductions in sales of our products and services, longer sales cycles, slower adoption of new technologies and increased price competition. Any of these events would likely harm our business, operating results and financial condition. In addition, there can be no assurance that IT spending levels will increase following any recovery.

 

We are dependent on third-party manufacturers, and changes to those relationships, expected or unexpected, may result in delays or disruptions that could harm our business.

 

We outsource the manufacturing of our hardware components to third-party original design manufacturers who assemble these hardware components to our specifications. Our primary manufacturers are Lanner Electronics, Inc. and AEWIN Technologies Co., Ltd., each of which is located in Taiwan. Our reliance on these third-party manufacturers reduces our control over the manufacturing process and exposes us to risks, including reduced control over quality assurance, product costs, and product supply and timing. Any manufacturing disruption at these manufacturers could severely impair our ability to fulfill orders. Our reliance on outsourced manufacturers also may create the potential for infringement or misappropriation of our intellectual property rights or confidential information. If we are unable to manage our relationships with these manufacturers effectively, or if these manufacturers suffer delays or disruptions for any reason, experience increased manufacturing lead-times, experience capacity constraints or quality control problems in their manufacturing operations, or fail to meet our future requirements for timely delivery, our ability to ship products to our end-customers would be severely impaired, and our business and operating results would be seriously harmed.

 

These manufacturers typically fulfill our supply requirements on the basis of individual orders. We do not have long-term contracts with our manufacturers that guarantee capacity, the continuation of particular pricing terms, or the extension of credit limits. Accordingly, they are not obligated to continue to fulfill our supply requirements, which could result in supply shortages, and the prices we are charged for manufacturing services could be increased on short notice. In addition, our orders may represent a relatively small percentage of the overall orders received by our manufacturers from their customers. As a result, fulfilling our orders may not be considered a priority by one or more of our manufacturers in the event the manufacturer is constrained in its ability to fulfill all of its customer obligations in a timely manner.

 

Although the services required to manufacture our hardware components may be readily available from a number of established manufacturers, it is time-consuming and costly to qualify and implement such relationships. If we are required to change manufacturers, whether due to an interruption in one of our manufacturers’ businesses, quality control problems or otherwise, or if we are required to engage additional manufacturers, our ability to meet our scheduled product deliveries to our customers could be adversely affected, which could cause the loss of sales to existing or potential customers, delayed revenue or an increase in our costs that could adversely affect our gross margin.

 

Because some of the key components in our products come from limited sources of supply, we are susceptible to supply shortages or supply changes, which could disrupt or delay our scheduled product deliveries to our end-customers and may result in the loss of sales and end-customers.

 

Our products incorporate key components, including certain integrated circuits, that our third-party manufacturers purchase on our behalf from a limited number of suppliers, including some sole-source providers. In addition, the lead times associated with these and other components of our products can be lengthy and preclude rapid changes in quantities and delivery schedules. Moreover, long-term supply and maintenance

 

24


Table of Contents

obligations to our end-customers increase the duration for which specific components are required, which may further increase the risk we may incur component shortages or the cost of carrying inventory. If we are unable to obtain a sufficient quantity of these components in a timely manner for any reason, sales and/or shipments of our products could be delayed or halted, which would seriously affect present and future sales and cause damage to end-customer relationships, which would, in turn, adversely affect our business, financial condition and results of operations.

 

In addition, our component suppliers change their selling prices frequently in response to market trends, including industry-wide increases in demand, and because we do not necessarily have contracts with these suppliers, we are susceptible to price fluctuations related to raw materials and components. If we are unable to pass component price increases along to our end-customers or maintain stable pricing, our gross margin and operating results could be negatively impacted. Furthermore, poor quality in sole-sourced components or certain other components in our products could also result in lost sales or lost sales opportunities. If the quality of such components does not meet our standards or our end-customers’ requirements, if we are unable to obtain components from our existing suppliers on commercially reasonable terms, or if any of our sole source providers cease to continue to manufacture such components or to remain in business, we could be forced to redesign our products and qualify new components from alternate suppliers. The development of alternate sources for those components can be time-consuming, difficult and costly, and we may not be able to develop alternate or second sources in a timely manner. Even if we are able to locate alternate sources of supply, we could be forced to pay for expedited shipments of such components or our products at dramatically increased costs.

 

If our products fail to protect against malicious attacks and our end-customers experience security breaches, our reputation and business could be harmed, and our operating results could be adversely impacted.

 

Defects may cause our products to be vulnerable to security attacks or cause them to fail to help secure networks. Data thieves are increasingly sophisticated, often affiliated with organized crime and operate large-scale and complex automated attacks. In addition, the techniques they use to access or sabotage networks change frequently and generally are not recognized until launched against a target. As a result, we may be unable to anticipate these techniques and provide a solution in time to protect our end-customers’ networks. If we fail to identify and respond to new and increasingly complex methods of attack and to update our products to detect or prevent such threats in time to protect our end-customers’ critical business data, our business, operating results and reputation could suffer.

 

In addition, an actual or perceived security breach or theft of sensitive data of one of our end-customers, regardless of whether the breach is attributable to the failure of our products or services, could adversely affect the market’s perception of our security products. Despite our best efforts, there is no guarantee that our products will be free of flaws or vulnerabilities, and even if we discover these weaknesses we may not be able to correct them promptly, if at all. Our end-customers may also misuse our products, which could result in a breach or theft of business data.

 

Undetected software or hardware errors may harm our business and results of operations.

 

Our products may contain undetected errors or defects when first introduced or as new versions are released. We have experienced these errors or defects in the past in connection with new products and product upgrades. We expect that these errors or defects will be found from time to time in new or enhanced products after commencement of commercial distribution. These problems may cause us to incur significant warranty and repair costs, divert the attention of our engineering personnel from our product development efforts and cause significant customer relations problems. We may also be subject to liability claims for damages related to product errors or defects. While we carry insurance policies covering this type of liability, these policies may not provide sufficient protection should a claim be asserted. A material product liability claim may harm our business and results of operations.

 

25


Table of Contents

Any errors, defects or vulnerabilities in our products could result in:

 

   

expenditures of significant financial and product development resources in efforts to analyze, correct, eliminate or work around errors and defects or to address and eliminate vulnerabilities;

 

   

loss of existing or potential end-customers or distribution channel partners;

 

   

delayed or lost revenue;

 

   

delay or failure to attain market acceptance;

 

   

indemnification obligations under our agreements with resellers, distributors and/or end-customers;

 

   

an increase in warranty claims compared with our historical experience or an increased cost of servicing warranty claims, either of which would adversely affect our gross margin; and

 

   

litigation, regulatory inquiries, or investigations that may be costly and harm our reputation.

 

Our use of open source software in our products could negatively affect our ability to sell our products and subject us to possible litigation.

 

We incorporate open source software such as the Linux operating system kernel into our products. We recently implemented a formal open source use policy, including written guidelines for use of open source software and business processes for approval of that use. We have developed and implemented our open source policies according to industry practice; however, best practices in this area are subject to change, because there is little reported case law on the interpretation of material terms of many open source licenses. We are in the process of reviewing our open source use and our compliance with open source licenses and implementing remediation and changes necessary to comply with the open source licenses related thereto. We cannot guarantee that our use of open source software has been, and will be, managed effectively for our intended business purposes and/or compliant with applicable open source licenses. We may face legal action by third parties seeking to enforce their intellectual property rights related to our use of such open source software. Failure to adequately manage open source license compliance and our use of open source software may result in unanticipated obligations regarding our products and services, such as a requirement that we license proprietary portions of our products or services on unfavorable terms, that we make available source code for modifications or derivative works we created based upon, incorporating or using open source software, that we license such modifications or derivative works under the terms of the particular open source license and/or that we redesign the affected products or services, which could result, for example, in a loss of intellectual property rights, or delay in providing our products and services. From time to time, there have been claims against companies that distribute or use third-party open source software in their products and services, asserting that the open source software or its combination with the products or services infringes third parties’ patents or copyrights, or that the companies’ distribution or use of the open source software does not comply with the terms of the applicable open source licenses. Use of certain open source software can lead to greater risks than use of warranted third-party commercial software, as open source licensors generally do not provide warranties or controls on the origin of such open source software. From time to time, there have been claims against companies that use open source software in their products, challenging the ownership of rights in such open source software. As a result, we could also be subject to suits by parties claiming ownership of rights in what we believe to be open source software and so challenging our right to use such software in our products. If any such claims were asserted against us, we could be required to incur significant legal expenses defending against such a claim. Further, if our defenses to such a claim were not successful, we could be, for example, subject to significant damages, be required to seek licenses from third parties in order to continue offering our products and services without infringing such third party’s intellectual property rights, be required to re-engineer such products and services, or be required to discontinue making available such products and services if re-engineering cannot be accomplished on a timely or successful basis. The need to engage in these or other remedies could increase our costs or otherwise adversely affect our business, operating results and financial condition.

 

26


Table of Contents

Our products must interoperate with operating systems, software applications and hardware that are developed by others and if we are unable to devote the necessary resources to ensure that our products interoperate with such software and hardware, we may fail to increase, or we may lose market share and we may experience a weakening demand for our products.

 

Our products must interoperate with our end-customers’ existing infrastructure, specifically their networks, servers, software and operating systems, which may be manufactured by a wide variety of vendors and original equipment manufacturers. As a result, when problems occur in a network, it may be difficult to identify the source of the problem. The occurrence of software or hardware problems, whether caused by our products or another vendor’s products, may result in the delay or loss of market acceptance of our products. In addition, when new or updated versions of our end-customers’ software operating systems or applications are introduced, we must sometimes develop updated versions of our software so that our products will interoperate properly. We may not accomplish these development efforts quickly, cost-effectively or at all. These development efforts require capital investment and the devotion of engineering resources. If we fail to maintain compatibility with these applications, our end-customers may not be able to adequately utilize our products, and we may, among other consequences, fail to increase, or we may lose market share and experience a weakening in demand for our products, which would adversely affect our business, operating results and financial condition.

 

We license technology from third parties, and our inability to maintain those licenses could harm our business.

 

Many of our products include proprietary technologies licensed from third parties. In the future, it may be necessary to renew licenses for third party technology or obtain new licenses for other technology. These third- party licenses may not be available to us on acceptable terms, if at all. As a result, we could also face delays or be unable to make changes to our products until equivalent technology can be identified, licensed or developed and integrated with our products. Such delays or an inability to make changes to our products, if it were to occur, could adversely affect our business, operating results and financial condition. The inability to obtain certain licenses to third-party technology, or litigation regarding the interpretation or enforcement of license agreements and related intellectual property issues, could have a material adverse effect on our business, operating results and financial condition.

 

Failure to prevent excess inventories or inventory shortages could result in decreased revenue and gross margin and harm our business.

 

We purchase products from our manufacturers outside of, and in advance of, reseller or end-customer orders, which we hold in inventory and resell. We place orders with our manufacturers based on our forecasts of our end-customers’ requirements and forecasts provided by our distribution channel partners. These forecasts are based on multiple assumptions, each of which might cause our estimates to be inaccurate, affecting our ability to provide products to our customers. There is a risk we may be unable to sell excess products ordered from our manufacturers. Inventory levels in excess of customer demand may result in obsolete inventory and inventory write-downs. For example, we incurred inventory write downs of $2.6 million for 2013 as a result of end-customers’ decisions to purchase our new product offering rather than our existing product offerings as originally expected. The sale of excess inventory at discounted prices could impair our brand image and have an adverse effect on our financial condition and results of operations. Conversely, if we underestimate demand for our products or if our manufacturers fail to supply products we require at the time we need them, we may experience inventory shortages. Inventory shortages might delay shipments to resellers, distributors and customers and cause us to lose sales. These shortages may diminish the loyalty of our distribution channel partners or customers.

 

The difficulty in forecasting demand also makes it difficult to estimate our future financial condition and results of operations from period to period. A failure to accurately predict the level of demand for our products could adversely affect our net revenue and net income, and we are unlikely to forecast such effects with any certainty in advance.

 

27


Table of Contents

Our sales cycles can be long and unpredictable, primarily due to the complexity of our end-customers’ networks and data centers and the length of their budget cycles. As a result, our sales and revenue are difficult to predict and may vary substantially from period to period, which may cause our operating results to fluctuate significantly.

 

The timing of our sales is difficult to predict because of the length and unpredictability of our products’ sales cycles. A sales cycle is the period between initial contact with a prospective end-customer and any sale of our products. Our sales cycle, in particular to our large end-customers, may be lengthy due to the complexity of their networks and data centers. Because of this complexity, prospective end-customers generally consider a number of factors over an extended period of time before committing to purchase our products. End-customers often view the purchase of our products as a significant and strategic decision that can have important implications on their existing networks and data centers and, as a result, require considerable time to evaluate, test and qualify our products prior to making a purchase decision and placing an order to ensure that our products will successfully interoperate with our end-customers’ complex network and data centers. Additionally, the budgetary decisions at these entities can be lengthy and require multiple organization reviews. The length of time that end-customers devote to their evaluation of our products and decision making process varies significantly. The length of our products’ sales cycles typically ranges from three to 12 months but can be longer for our large end-customers.

 

For all of these reasons, it is difficult to predict whether a sale will be completed or the particular fiscal period in which a sale will be completed, both of which contribute to the uncertainty of our future operating results. If our sales cycles lengthen, our revenue could be lower than expected, which would have an adverse impact on our operating results and could cause our stock price to decline.

 

Our ability to sell our products is highly dependent on the quality of our support and services offerings, and our failure to offer high-quality support could have a material adverse effect on our business, revenue and results of operations.

 

We believe that our ability to provide consistent, high quality customer service and technical support is a key factor in attracting and retaining end-customers of all sizes and is critical to the deployment of our products. When support is purchased our end-customers depend on our support organization to provide a broad range of support services, including on-site technical support, 24-hour support and shipment of replacement parts on an expedited basis. If our support organization or our distribution channel partners do not assist our end-customers in deploying our products effectively, succeed in helping our end-customers resolve post-deployment issues quickly, or provide ongoing support, it could adversely affect our ability to sell our products to existing end-customers and could harm our reputation with potential end-customers. We currently have technical support centers in the United States, Japan, China and the Netherlands. As we continue to expand our operations internationally, our support organization will face additional challenges, including those associated with delivering support, training and documentation in languages other than English.

 

We typically sell our products with maintenance and support as part of the initial purchase, and a substantial portion of our support revenue comes from renewals of maintenance and support contracts. Our end-customers have no obligation to renew their maintenance and support contracts after the expiration of the initial period. If we are unable to provide high quality support, our end-customers may elect not to renew their maintenance and support contracts or to reduce the product quantity under their maintenance and support contracts, thereby reducing our future revenue from maintenance and support contracts.

 

Our failure or the failure of our distribution channel partners to maintain high-quality support and services could have a material and adverse effect on our business, revenue and operating results.

 

28


Table of Contents

We depend on growth in markets relating to network security, management and analysis, and lack of growth or contraction in one or more of these markets could have a material adverse effect on our results of operations and financial condition.

 

Demand for our products is linked to, among other things, growth in the size and complexity of network infrastructures and the demand for networking technologies addressing the security, management and analysis of such infrastructures. These markets are dynamic and evolving. Our future financial performance will depend in large part on continued growth in the number of organizations investing in their network infrastructure and the amount they commit to such investments. If this demand declines, our results of operations and financial condition would be materially and adversely affected. Segments of the network infrastructure industry have in the past experienced significant economic downturns. Furthermore, the market for network infrastructure may not continue to grow at historic rates, or at all. The occurrence of any of these factors in the markets relating to network security, management and analysis could materially and adversely affect our results of operations and financial condition.

 

Our revenue growth rate in recent periods may not be indicative of our future performance.

 

You should not consider our revenue growth rate in recent periods as indicative of our future performance. We have recently experienced revenue growth rates of 32% and 18% in 2012 and 2013. We may not achieve similar revenue growth rates in future periods. You should not rely on our revenue for any prior quarterly or annual periods as any indication of our future revenue or revenue growth. If we are unable to maintain consistent revenue or revenue growth, our stock price could be volatile, and it may be difficult to achieve and maintain profitability.

 

Our business and operations have experienced rapid growth in recent periods, and if we do not effectively manage any future growth or are unable to improve our controls, systems and processes, our operating results will be adversely affected.

 

In recent periods, we have significantly increased the number of our employees and independent contractors. As we hire new employees and independent contractors and expand into new locations outside the United States, we are required to comply with varying local laws for each of these new locations. We anticipate that further expansion of our infrastructure and headcount will be required. Our rapid growth has placed, and will continue to place, a significant strain on our administrative and operational infrastructure and financial resources. Our ability to manage our operations and growth across multiple countries will require us to continue to refine our operational, financial and management controls, human resource policies, and reporting systems and processes.

 

We need to continue to improve our internal systems, processes, and controls to effectively manage our operations and growth. We may not be able to successfully implement improvements to these systems, processes and controls in an efficient or timely manner. In addition, our systems and processes may not prevent or detect all errors, omissions, or fraud. We may experience difficulties in managing improvements to our systems, processes, and controls or in connection with third-party software, which could impair our ability to provide products or services to our customers in a timely manner, causing us to lose customers, limit us to smaller deployments of our products, increase our technical support costs, or damage our reputation and brand. Our failure to improve our systems and processes, or their failure to operate in the intended manner, may result in our inability to manage the growth of our business and to accurately forecast our revenue, expenses, and earnings, or to prevent certain losses, any of which may harm our business and results of operations.

 

We may not be able to sustain or develop new distributor and reseller relationships, and a reduction or delay in sales to significant distribution channel partners could hurt our business.

 

We sell our products and services through multiple distribution channels in the United States and internationally. We may not be able to increase our number of distributor or reseller relationships or maintain our existing relationships. Recruiting and retaining qualified distribution channel partners and training them on our

 

29


Table of Contents

technologies requires significant time and resources. These distribution channel partners may also market, sell and support products and services that are competitive with ours and may devote more resources to the marketing, sales and support of such competitive products. Our sales channel structure could subject us to lawsuits, potential liability and reputational harm if, for example, any of our distribution channel partners misrepresent the functionality of our products or services to end-customers or violate laws or our corporate policies. If we are unable to establish or maintain our sales channels or if our distribution channel partners are unable to adapt to our future sales focus and needs, our business and results of operations will be harmed.

 

The terms of our credit facility could restrict our operations, particularly our ability to respond to changes in our business or to take specified actions.

 

Our credit facility contains a number of restrictive covenants that impose operating and financial restrictions on us, including restrictions on our ability to take actions that may be in our best interests. Our credit facility requires us to satisfy specified financial covenants. Our ability to meet those financial covenants can be affected by events beyond our control, and we may not be able to continue to meet those covenants. As of December 31, 2013, we were not in compliance with the total leverage ratio covenant under the credit facility. Although we received a waiver from our lenders with respect to this covenant, we will not be able to borrow additional funds under the credit facility until we can show that we meet the necessary leverage ratio, and our inability to borrow additional funds may negatively affect our operations. We may not be able to obtain waivers of covenant non-compliance in the future, and a breach of any of these covenants or the occurrence of other events specified in the credit facility could result in an event of default under the credit facility. Upon the occurrence of an event of default, our lenders could elect to declare all amounts outstanding under the credit facility to be immediately due and payable and terminate all commitments to extend further credit. If our lenders accelerate the repayment, if any, we may not have sufficient funds to repay our existing debt. If we were unable to repay those amounts, our lenders could proceed against the collateral granted to them to secure such indebtedness. We have pledged substantially all of our assets, including our intellectual property, as collateral under the credit facility.

 

Our sales to governmental organizations are subject to a number of challenges and risks.

 

We sell to governmental organization end-customers. Sales to governmental organizations are subject to a number of challenges and risks. Selling to governmental organizations can be highly competitive, expensive and time consuming, often requiring significant upfront time and expense without any assurance that these efforts will generate a sale. We have not yet received security clearance from the United States government, which prevent us from being able to sell directly for certain governmental uses. There can be no assurance that such clearance will be obtained, and failure to do so may adversely affect our operating results. Governmental organization demand and payment for our products may be impacted by public sector budgetary cycles and funding authorizations, with funding reductions or delays adversely affecting public sector demand for our products. Governmental organizations may have statutory, contractual or other legal rights to terminate contracts with our distributors and resellers for convenience or due to a default, and any such termination may adversely impact our future operating results.

 

Failure to comply with governmental laws and regulations could harm our business.

 

Our business is subject to regulation by various federal, state, local and foreign governmental entities, including agencies responsible for monitoring and enforcing employment and labor laws, workplace safety, product safety, environmental laws, consumer protection laws, anti-bribery laws, import/export controls, federal securities laws, and tax laws and regulations. In certain jurisdictions, these regulatory requirements may be more stringent than those in the United States. Noncompliance with applicable regulations or requirements could subject us to investigations, sanctions, mandatory product recalls, enforcement actions, disgorgement of profits, fines, damages, civil and criminal penalties, or injunctions. If any governmental sanctions are imposed, or if we do not prevail in any possible civil or criminal litigation, our business, operating results, and financial condition could be materially adversely affected. In addition, responding to any action will likely result in a significant diversion of management’s attention and resources and an increase in professional fees. Enforcement actions and sanctions could harm our business, operating results and financial condition.

 

30


Table of Contents

We are subject to governmental export and import controls that could subject us to liability or impair our ability to compete in international markets.

 

Our products are subject to U.S. export controls and may be exported outside the United States only with the required level of export license or through an export license exception because we incorporate encryption technology into our products. In addition, various countries regulate the import of certain encryption technology and have enacted laws that could limit our ability to distribute our products or our end-customers’ ability to implement our products in those countries. Changes in our products or changes in export and import regulations may create delays in the introduction of our products in international markets, prevent our end-customers with international operations from deploying our products throughout their global systems or, in some cases, prevent the export or import of our products to certain countries altogether. Any change in export or import regulations or related legislation, shift in approach to the enforcement or scope of existing regulations or change in the countries, persons or technologies targeted by such regulations, could result in decreased use of our products by, or in our decreased ability to export or sell our products to, existing or potential end-customers with international operations. Any decreased use of our products or limitation on our ability to export or sell our products would likely adversely affect our business, operating results and financial condition.

 

We discovered that we inadvertently reported incorrect information to the U.S. Census Bureau when reporting certain exports, although the underlying exports were authorized under the Export Administration Regulations. We implemented corrective actions and filed a Voluntary Self Disclosure with the U.S. Census Bureau regarding these technical violations. We do not believe the potential imposition of any fines by the Census Bureau would be material to us. However, there can be no assurances that any such fines or penalties would not be material, and if such fine or penalties were material, they could harm our operating results or financial condition.

 

We are subject to various environmental laws and regulations that could impose substantial costs upon us.

 

Our company must comply with local, state, federal, and international environmental laws and regulations in the countries in which we do business. We are also subject to laws, which restrict certain hazardous substances, including lead, used in the construction of our products, such as the European Union Restriction on the Use of Hazardous Substances in electrical and electronic equipment directive. We are also subject to the European Union Directive, known as the Waste Electrical and Electronic Equipment Directive, or WEEE Directive, which requires producers of certain electrical and electronic equipment to properly label products, register as a WEEE producer, and provide for the collection, disposal, and recycling of waste electronic products. Failure to comply with these environmental directives and other environmental laws could result in the imposition of fines and penalties, inability to sell covered products in certain countries, the loss of revenues, or subject us to third-party property damage or personal injury claims, or require us to incur investigation, remediation or engineering costs. Our operations and products will be affected by future environmental laws and regulations, but we cannot predict the ultimate impact of any such future laws and regulations at this time .

 

Our products must conform to industry standards in order to be accepted by end-customers in our markets.

 

Generally, our products comprise only a part of a data center. The servers, network, software and other components and systems of a data center must comply with established industry standards in order to interoperate and function efficiently together. We depend on companies that provide other components of the servers and systems in a data center to support prevailing industry standards. Often, these companies are significantly larger and more influential in driving industry standards than we are. Some industry standards may not be widely adopted or implemented uniformly, and competing standards may emerge that may be preferred by our end-customers. If larger companies do not support the same industry standards that we do, or if competing standards emerge, market acceptance of our products could be adversely affected and we may need to incur substantial costs to conform our products to such standards, which could harm our business, operating results and financial condition.

 

31


Table of Contents

We are dependent on various information technology systems, and failures of or interruptions to those systems could harm our business.

 

Many of our business processes depend upon our information technology systems, the systems and processes of third parties, and on interfaces with the systems of third parties. If those systems fail or are interrupted, or if our ability to connect to or interact with one or more networks is interrupted, our processes may function at a diminished level or not at all. This would harm our ability to ship products, and our financial results may be harmed.

 

In addition, reconfiguring or upgrading our information technology systems or other business processes in response to changing business needs may be time-consuming and costly and is subject to risks of delay or failed deployment. To the extent this impacts our ability to react timely to specific market or business opportunities, our financial results may be harmed.

 

Future acquisitions we may undertake may not result in the financial and strategic goals that are contemplated at the time of the transaction.

 

We may make acquisitions of complementary companies, products or technologies. With respect to any other future acquisitions we may undertake, we may find that the acquired businesses, products or technologies do not further our business strategy as expected, that we paid more than what the assets are later worth or that economic conditions change, all of which may generate future impairment charges. Any future acquisitions may be viewed negatively by customers, financial markets or investors. There may be difficulty integrating the operations and personnel of an acquired business, and we may have difficulty retaining the key personnel of an acquired business. We may have difficulty in integrating acquired technologies or products with our existing product lines. Any integration process may require significant time and resources, and we may not be able to manage the process successfully. Our ongoing business and management’s attention may be disrupted or diverted by transition or integration issues and the complexity of managing geographically and culturally diverse locations. We may have difficulty maintaining uniform standards, controls, procedures and policies across locations. We may experience significant problems or liabilities associated with product quality, technology and other matters.

 

Our inability to successfully operate and integrate future acquisitions appropriately, effectively and in a timely manner, or to retain key personnel of any acquired business, could have a material adverse effect on our revenue, gross margin and expenses.

 

Our ability to use our net operating loss carryforwards may be subject to limitation and may result in increased future tax liability to us.

 

Generally, a change of more than 50% in the ownership of a corporation’s stock, by value, over a three-year period constitutes an ownership change for U.S. federal income tax purposes. An ownership change may limit a company’s ability to use its net operating loss carryforwards attributable to the period prior to such change. In the event we have undergone an ownership change under Section 382 of the Internal Revenue Code, if we earn net taxable income, our ability to use our pre-change net operating loss carryforwards to offset U.S. federal taxable income may become subject to limitations, which could potentially result in increased future tax liability to us.

 

Our business is subject to the risks of warranty claims, product returns, product liability, and product defects.

 

Real or perceived errors, failures or bugs in our products could result in claims by end-customers for losses that they sustain. If end-customers make these types of claims, we may be required, or may choose, for customer relations or other reasons, to expend additional resources in order to help correct the problem. Historically, the amount of warranty claims has not been significant, but there are no assurances that the amount of such claims will not be material in the future. Liability provisions in our standard terms and conditions of sale, and those of our resellers and distributors, may not be enforceable under some circumstances or may not fully or effectively protect us from customer claims and related liabilities and costs, including indemnification obligations under our

 

32


Table of Contents

agreements with resellers, distributors or end-customers. The sale and support of our products also entail the risk of product liability claims. We maintain insurance to protect against certain types of claims associated with the use of our products, but our insurance coverage may not adequately cover any such claims. In addition, even claims that ultimately are unsuccessful could result in expenditures of funds in connection with litigation and divert management’s time and other resources.

 

We are exposed to the credit risk of our distribution channel partners and end-customers, which could result in material losses and negatively impact our operating results.

 

Most of our sales are on an open credit basis, with typical payment terms ranging from 30 to 90 days depending on local customs or conditions that exist in the sale location. If any of the distribution channel partners or end-customers responsible for a significant portion of our revenue becomes insolvent or suffers a deterioration in its financial or business condition and is unable to pay for our products, our results of operations could be harmed.

 

Concentration of ownership among our existing executive officers, a small number of stockholders, directors and their affiliates may prevent new investors from influencing significant corporate decisions.

 

Our executive officers and directors, together with entities affiliated with these individuals and stockholders who own greater than 5% of our outstanding common stock, will hold 46.7% of our outstanding common stock after this offering, based on the number of shares outstanding as of December 31, 2013. Accordingly, these stockholders, acting together, can elect a majority of our directors, have the voting power to approve or not approve all matters requiring stockholder approval and have significant influence over our affairs. The interests of these stockholders could conflict with your interests. These stockholders may also have an interest in pursuing acquisitions, divestitures, financings or other transactions that, in their judgment, could enhance their investments, even though such transactions might involve risks to you. In addition, this concentration of ownership could have the effect of delaying or preventing a liquidity event such as a merger or liquidation of our company.

 

We may need to raise additional funds in future private or public offerings, and such funds may not be available on acceptable terms, if at all. If we do raise additional funds, existing stockholders will suffer dilution.

 

We may need to raise additional funds in private or public offerings, and these funds may not be available to us when we need them or on acceptable terms, if at all. If we raise additional funds through further issuances of equity or convertible debt securities, you could suffer significant dilution, and any new equity securities we issue could have rights, preferences and privileges superior to those of our then-existing capital stock. Any debt financing secured by us in the future could involve restrictive covenants relating to our capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business opportunities. If we cannot raise additional funds when we need them, our business and prospects could fail or be materially and adversely affected.

 

The price of our common stock may be volatile, and the value of your investment could decline.

 

Technology stocks have historically experienced high levels of volatility. The trading price of our common stock following this offering may fluctuate substantially. Following the completion of this offering, the market price of our common stock may be higher or lower than the price you pay in the offering, depending on many factors, some of which are beyond our control and may not be related to our operating performance. These fluctuations could cause you to lose all or part of your investment in our common stock. Factors that could cause fluctuations in the trading price of our common stock include the following:

 

   

announcements of new products, services or technologies, commercial relationships, acquisitions or other events by us or our competitors;

 

   

price and volume fluctuations in the overall stock market from time to time;

 

33


Table of Contents
   

significant volatility in the market price and trading volume of technology companies in general and of companies in our industry;

 

   

fluctuations in the trading volume of our shares or the size of our public float;

 

   

actual or anticipated changes or fluctuations in our results of operations;

 

   

whether our results of operations meet the expectations of securities analysts or investors;

 

   

actual or anticipated changes in the expectations of investors or securities analysts;

 

   

litigation or investigations involving us, our industry, or both;

 

   

regulatory developments in the United States, foreign countries or both;

 

   

general economic conditions and trends;

 

   

major catastrophic events;

 

   

sales of large blocks of our common stock; or

 

   

departures of key personnel.

 

In addition, if the market for technology stocks or the stock market in general experiences a loss of investor confidence, the trading price of our common stock could decline for reasons unrelated to our business, results of operations or financial condition. The trading price of our common stock might also decline in reaction to events that affect other companies in our industry even if these events do not directly affect us. In the past, following periods of volatility in the market price of a company’s securities, securities class action litigation has often been brought against that company. If our stock price is volatile, we may become the target of securities litigation. Securities litigation could result in substantial costs and divert our management’s attention and resources from our business. This could have a material adverse effect on our business, results of operations and financial condition.

 

Sales of substantial amounts of our common stock in the public markets, or the perception that such sales might occur, could reduce the price that our common stock might otherwise attain and may dilute your voting power and your ownership interest in us.

 

Sales of a substantial number of shares of our common stock in the public market after this offering, or the perception that such sales could occur, could adversely affect the market price of our common stock and may make it more difficult for you to sell your common stock at a time and price that you deem appropriate. Based on the total number of outstanding shares of our common stock as of December 31, 2013, upon completion of this offering, we will have 59,029,124 shares of common stock outstanding. All of the shares of common stock sold in this offering will be freely tradable without restrictions or further registration under the Securities Act of 1933, as amended, or the Securities Act, except for any shares held by our “affiliates” as defined in Rule 144 under the Securities Act.

 

Subject to certain exceptions described under the caption “Underwriters,” we and all of our directors and executive officers and substantially all of our equity holders have agreed not to offer, sell or agree to sell, directly or indirectly, any shares of common stock without the permission of the representatives of the underwriters for a period of 180 days from the date of this prospectus. When the lockup period expires, we and our locked-up security holders will be able to sell our shares in the public market. In addition, Morgan Stanley & Co. LLC may, in its sole discretion, release all or some portion of the shares subject to lock-up agreements prior to the expiration of the lock-up period. See the section of this prospectus captioned “Shares Eligible for Future Sale” for more information. Sales of a substantial number of such shares upon expiration, or the perception that such sales may occur, or early release of the lock-up, could cause our share price to fall or make it more difficult for you to sell your common stock at a time and price that you deem appropriate.

 

Based on shares outstanding as of December 31, 2013, holders of up to approximately 36,497,114 shares, or 62%, of our common stock will have rights, subject to certain conditions, to require us to file registration

 

34


Table of Contents

statements covering the sale of their shares or to include their shares in registration statements that we may file for ourselves or other stockholders. We also intend to register the offer and sale of all shares of common stock that we may issue under our equity compensation plans.

 

We are an emerging growth company, and any decision on our part to comply only with certain reduced disclosure requirements applicable to emerging growth companies could make our common stock less attractive to investors.

 

We are an emerging growth company, and, for as long as we continue to be an emerging growth company, we may choose to take advantage of exemptions from various reporting requirement applicable to other public companies but not to “emerging growth companies,” including, but not limited to, not being required to have our independent registered public accounting firm audit our internal control over financial reporting under Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. We could be an emerging growth company for up to five years following the completion of this offering. We will remain an emerging growth company until the earliest of: (a) the last day of the year (i) following the fifth anniversary of the completion of this offering, (ii) in which we have total annual gross revenue of at least $1.0 billion, or (iii) in which we qualify as a large accelerated filer, which means the market value of our common stock that is held by non-affiliates exceeds $700 million as of the prior June 30, or (b) the date on which we have issued more than $1.0 billion in non-convertible debt securities during the prior three-year period. We cannot predict if investors will find our common stock less attractive if we choose to rely on these exemptions. If some investors find our common stock less attractive as a result of any choices to reduce future disclosure, there may be a less active trading market for our common stock and the price of our common stock may be more volatile.

 

Under the JOBS Act, emerging growth companies can also delay adopting new or revised accounting standards until such time as those standards apply to private companies. We have irrevocably elected not to avail ourselves of this accommodation allowing for delayed adoption of new or revised accounting standards, and, therefore, we will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.

 

The requirements of being a public company will increase costs and may divert management attention.

 

As a reporting company, we will incur increased legal, accounting and other expenses, including costs associated with SEC reporting and corporate governance requirements. These requirements include compliance with Section 404 and other provisions of the Sarbanes-Oxley Act, as well as rules implemented by the SEC. In addition, our management team will also have to adapt to the requirements of being a reporting company. The expenses incurred for reporting and corporate governance purposes are significant. We expect these rules and regulations to substantially increase our legal and financial compliance costs and to make some activities more time-consuming and costly.

 

In addition, changing laws, regulations and standards relating to corporate governance and public disclosure are creating uncertainty for public companies, increasing legal and financial compliance costs, and making some activities more time consuming. Additionally, implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or the Dodd-Frank Act, may also cause us to incur additional costs and subject us to risks if we are unable to fully comply. For instance, the SEC adopted new disclosure requirements in 2012 as part of implementation of the Dodd-Frank Act regarding the use of conflict minerals mined from the Democratic Republic of Congo and adjoining countries and procedures regarding a manufacturer’s efforts to prevent the sourcing of such conflict minerals. The implementation of these requirements could adversely affect our costs and our relationships with customers and suppliers. These laws, regulations and standards are subject to varying interpretations, in many cases due to their lack of specificity, and, as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies. This could result in

 

35


Table of Contents

continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. We intend to invest resources to comply with evolving laws, regulations, and standards, and this investment may result in increased general and administrative expense and a diversion of management’s time and attention from revenue-generating activities to compliance activities. If our efforts to comply with new laws, regulations, and standards differ from the activities intended by regulatory or governing bodies, regulatory authorities may initiate legal proceedings against us and our business may be harmed.

 

The increased costs associated with operating as a reporting company will decrease our net income or increase our net loss, and may require us to reduce costs in other areas of our business or increase the prices of our products or services. Additionally, if these requirements divert our management’s attention from other business concerns, they could have a material adverse effect on our business, financial condition and results of operations.

 

Because the initial public offering price of our common stock will be substantially higher than the pro forma net tangible book value per share of our outstanding common stock following this offering, new investors will experience immediate and substantial dilution.

 

The initial public offering price of our common stock will be substantially higher than the pro forma net tangible book value per share of our common stock immediately following this offering based on the total value of our tangible assets less our total liabilities. Therefore, if you purchase shares of our common stock in this offering, you will experience immediate dilution of $12.26 per share, the difference between the price per share you pay (based on the midpoint of the price range on the cover of this prospectus) for our common stock and the pro forma net tangible book value per share of our common stock as of December 31, 2013, after giving effect to the issuance of shares of our common stock in this offering. See “Dilution” below.

 

If securities or industry analysts do not publish research or reports about our business, or publish inaccurate or unfavorable research reports about our business, our share price and trading volume could decline .

 

The market for our common stock will, to some extent, depend on the research and reports that securities or industry analysts publish about us or our business. We do not have any control over these analysts. If one or more of the analysts who cover us should downgrade our shares or change their opinion of our shares, our share price would likely decline. If one or more of these analysts should cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which would cause our share price or trading volume to decline.

 

Our charter documents and Delaware law could discourage takeover attempts and lead to management entrenchment.

 

Our restated certificate of incorporation and bylaws that will be in effect upon completion of this offering contain provisions that could delay or prevent a change in control of our company. These provisions could also make it difficult for stockholders to elect directors that are not nominated by the current members of our board of directors or take other corporate actions, including effecting changes in our management. These provisions include:

 

   

a classified board of directors with three-year staggered terms, which could delay the ability of stockholders to change the membership of a majority of our board of directors;

 

   

the ability of our board of directors to issue shares of preferred stock and to determine the price and other terms of those shares, including preference and voting rights, without stockholder approval, which could be used to significantly dilute the ownership of a hostile acquirer;

 

   

the exclusive right of our board of directors to elect a director to fill a vacancy created by the expansion of our board of directors or the resignation, death or removal of a director, which prevents stockholders from being able to fill vacancies on our board of directors;

 

   

a prohibition on stockholder action by written consent, which forces stockholder action to be taken at an annual or special meeting of our stockholders;

 

36


Table of Contents
   

the requirement that a special meeting of stockholders may be called only by the chairman of our board of directors, our Chief Executive Officer, our secretary, or a majority vote of our board of directors, which could delay the ability of our stockholders to force consideration of a proposal or to take action, including the removal of directors;

 

   

the requirement for the affirmative vote of holders of at least 66-2/3% of the voting power of all of the then-outstanding shares of the voting stock, voting together as a single class, to amend the provisions of our restated certificate of incorporation relating to the issuance of preferred stock and management of our business or our bylaws, which may inhibit the ability of an acquirer to effect such amendments to facilitate an unsolicited takeover attempt;

 

   

the ability of our board of directors, by majority vote, to amend the bylaws, which may allow our board of directors to take additional actions to prevent an unsolicited takeover and inhibit the ability of an acquirer to amend the bylaws to facilitate an unsolicited takeover attempt; and

 

   

advance notice procedures with which stockholders must comply to nominate candidates to our board of directors or not to propose matters to be acted upon at a stockholders’ meeting, which may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquiror’s own slate of directors or otherwise attempting to obtain control of us.

 

In addition, as a Delaware corporation, we are subject to Section 203 of the Delaware General Corporation Law. These provisions may prohibit large stockholders, in particular those owning 15% or more of our outstanding voting stock, from merging or combining with us for a certain period of time.

 

Proceeds received from the sale of our capital stock may be used for general corporate purposes, and we may not use such proceeds effectively.

 

The principal purposes of this offering are to raise additional capital, to create a public market for our common stock and to facilitate our future access to the public equity markets. We have not yet determined the specific allocation of the net proceeds that we receive in this offering. Rather, we intend to use the net proceeds that we receive in this offering primarily for general corporate purposes, including working capital, sales and marketing activities, research and development activities, general and administrative matters and capital expenditures, and we may use a portion of the net proceeds for the acquisition of, or investment in, business products, services or technologies that complement our business. Accordingly, our management will have broad discretion over the specific use of the net proceeds that we receive in this offering and might not be able to obtain a significant return, if any, on investment of these net proceeds. Investors in this offering will need to rely upon the judgment of our management with respect to the use of proceeds. We cannot assure you that we will use such proceeds effectively. If we do not use the net proceeds that we receive in this offering effectively, our business, results of operations and financial condition could be harmed.

 

Our business is subject to the risks of earthquakes, fire, power outages, floods, and other catastrophic events, and to interruption by man-made problems such as acts of war and terrorism.

 

A significant natural disaster, such as an earthquake, fire, a flood, or significant power outage could have a material adverse impact on our business, operating results, and financial condition. Our corporate headquarters are located in the San Francisco Bay Area, a region known for seismic activity. In addition, our two primary manufacturers are located in Taiwan, which is near major earthquake fault lines and subject to typhoons during certain times of the year. In the event of a major earthquake or typhoon, or other natural or man-made disaster, our manufacturers in Taiwan may face business interruptions, which may impact quality assurance, product costs, and product supply and timing. In the event our or our service providers’ information technology systems or manufacturing or logistics abilities are hindered by any of the events discussed above, shipments could be delayed, resulting in missed financial targets, such as revenue and shipment targets, and our operations could be disrupted, for the affected quarter or quarters. In addition, cyber security attacks, acts of war or terrorism, or other geo-political unrest could cause disruptions in our business or the business of our supply chain,

 

37


Table of Contents

manufacturers, logistics providers, partners, or end-customers or the economy as a whole. Any disruption in the business of our supply chain, manufacturers, logistics providers, partners or end-customers that impacts sales at the end of a quarter could have a significant adverse impact on our quarterly results. All of the aforementioned risks may be further increased if the disaster recovery plans for us and our suppliers prove to be inadequate. To the extent that any of the above should result in delays or cancellations of customer orders, or the delay in the manufacture, deployment or shipment of our products, our business, financial condition and operating results would be adversely affected.

 

We do not intend to pay dividends for the foreseeable future.

 

We intend to retain any earnings to finance the operation and expansion of our business, and we do not anticipate paying any cash dividends in the future. In addition, our various credit facilities currently restrict our ability to pay dividends while these facilities remain outstanding. As a result, you may only receive a return on your investment in our common stock if the value of our common stock increases.

 

If our initial public offering price is less than $12.73 per share, we will have to pay a preference payment to holders of our Series D redeemable convertible preferred stock, which may be paid, at our option, in cash, shares of our common stock or a combination thereof.

 

Holders of our Series D redeemable convertible preferred stock are entitled to receive a preference payment in the event our initial public offering price is less than $12.73 per share, assuming that this offering is completed by June 27, 2014. The maximum aggregate preference payment is approximately $20.5 million, and the preference payment is payable, at our option, in cash, shares of our common stock valued at our initial public offering price, or a combination of cash and shares of common stock. The preference payment for each of the 80,000 Series D shares will be determined by multiplying the number of shares issuable upon conversion of such Series D share, currently approximately 117.85, by the difference between (i) the product of the Series D conversion price, currently $8.4855, and a multiple, currently 1.5 (if this offering is completed by June 27, 2014 and ranging up to 2.0 if this offering is completed after that date), and (ii) the price per share to the public in this offering. If our initial public offering price is $12.00 per share, then the aggregate preference payment for all Series D shares will be approximately $6.9 million or approximately 572,000 shares of common stock, if paid fully in shares of common stock. If our initial public offering price is $11.00 per share, then the aggregate preference payment will be approximately $16.3 million or approximately 1.5 million shares of common stock, if paid fully in shares of common stock. If our initial public offering price is less than or equal to $10.56 per share, the aggregate preference payment will be the maximum preference payment of approximately $20.5 million, in which case the maximum number of shares that we may pay is equal to that approximately $20.5 million amount divided by the initial public offering price.

 

38


Table of Contents

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This prospectus, including the sections entitled “Prospectus Summary,” “Risk Factors,” “Use of Proceeds,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business,” and “Compensation Discussion and Analysis” contains forward-looking statements. The words “believe,” “may,” “will,” “potentially,” “estimate,” “continue,” “anticipate,” “intend,” “could,” “would,” “project,” “plan” “expect,” and similar expressions that convey uncertainty of future events or outcomes are intended to identify forward-looking statements.

 

These forward-looking statements include, but are not limited to, statements concerning the following:

 

   

our ability to maintain an adequate rate of revenue growth;

 

   

our business plan and our ability to effectively manage our growth;

 

   

costs associated with defending intellectual property infringement and other claims, such as those claims discussed in “Business—Legal Proceedings”;

 

   

our ability to attract and retain end-customers;

 

   

our ability to further penetrate our existing customer base;

 

   

our ability to displace existing products in established markets;

 

   

our ability to expand our leadership position in next-generation application delivery and server load balancing solutions;

 

   

our ability to timely and effectively scale and adapt our existing technology;

 

   

our ability to innovate new products and bring them to market in a timely manner;

 

   

our ability to expand internationally;

 

   

the effects of increased competition in our market and our ability to compete effectively;

 

   

the effects of seasonal trends on our results of operations;

 

   

our expectations concerning relationships with third parties;

 

   

the attraction and retention of qualified employees and key personnel;

 

   

our ability to maintain, protect, and enhance our brand and intellectual property; and

 

   

future acquisitions of or investments in complementary companies, products, services or technologies.

 

These forward-looking statements are subject to a number of risks, uncertainties, and assumptions, including those described in “Risk Factors” and elsewhere in this prospectus. Moreover, we operate in a very competitive and rapidly changing environment, and new risks emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. In light of these risks, uncertainties, and assumptions, the forward-looking events and circumstances discussed in this prospectus may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements.

 

You should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee that the future results, levels of activity, performance or events and circumstances reflected in the forward-looking statements will be achieved or occur. Moreover, neither we nor any other person assumes responsibility for the accuracy and completeness of the forward-looking statements. We undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus to conform these statements to actual results or to changes in our expectations, except as required by law.

 

39


Table of Contents

You should read this prospectus and the documents that we reference in this prospectus and have filed with the SEC as exhibits to the registration statement of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance, and events and circumstances may be materially different from what we expect.

 

MARKET AND INDUSTRY DATA

 

Unless otherwise indicated, information contained in this prospectus concerning our industry and the markets in which we operate, including our general expectations and market position, market opportunity, and market size, is based on information from various sources, including Forrester Research, Gartner and Cisco’s Global Cloud Index, on assumptions that we have made that are based on those data and other similar sources and on our knowledge of the markets for our products and services. This information involves a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates. While we believe the market position, market opportunity and market size information included in this prospectus is generally reliable, such information is inherently imprecise. In addition, projections, assumptions and estimates of our future performance and the future performance of the industry in which we operate is necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described in “Risk Factors” and elsewhere in this prospectus. These and other factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.

 

The Gartner Reports described herein, (the “Gartner Reports”) represent data, research opinion or viewpoints published, as part of a syndicated subscription service, by Gartner, Inc. (“Gartner”), and are not representations of fact. Each Gartner Report speaks as of its original publication date (and not as of the date of this filing) and the opinions expressed in the Gartner Reports are subject to change without notice. The Gartner Reports consist of:

 

   

Forecast Overview: Information Security, WW, 2011-2017 4Q13 Update Gartner Jan 2014.

 

   

Forecast: Enterprise Network Equipment by Market Segment, WW, 2010-2017, 4Q13 Gartner Dec 2013.

 

   

Gartner Press Release dated October 7, 2013: “Gartner Says It’s the Beginning of a New Era: The Digital Industrial Economy.”

 

40


Table of Contents

USE OF PROCEEDS

 

We estimate that the net proceeds from the sale of the shares of our common stock that we are selling in this offering will be approximately $112.7 million, based on an assumed initial public offering price of $14.00 per share, which is the midpoint of the estimated offering price range reflected on the cover page of this prospectus, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. We will not receive any proceeds from the sale of shares of our common stock by the selling stockholders.

 

A $1.00 increase or decrease in the assumed initial public offering price of $14.00 per share would increase or decrease the net proceeds that we receive from this offering by approximately $8.4 million, assuming that the number of shares offered by us, as reflected on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions payable by us. Similarly, each one million share increase or decrease in the number of shares of common stock offered by us would increase or decrease the net proceeds that we receive from this offering by approximately $13.0 million, assuming the assumed initial public offering price, as set forth on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions payable by us.

 

The principal purposes of this offering are to create a public market for our stock, increase our visibility in our marketplace, obtain additional capital and increase our capitalization and financial flexibility. We currently intend to use the net proceeds we receive from this offering primarily for general corporate purposes, including working capital, sales and marketing activities, research and development activities, general and administrative matters and capital expenditures although we do not currently have any specific or preliminary plans with respect to the use of proceeds for such purposes. Additionally, based on our current operating assumptions, we estimate that we will use between $20.0 million and $30.0 million of our net proceeds from this offering to fully implement our growth strategies described in this prospectus. The exact amount of net proceeds we use to fund our growth plans, however, will depend on the amount of cash generated from our operations and any strategic decisions we may make that could alter our expansion plans and the amount of cash necessary to fund these plans. We may also, in our discretion, use a portion of the net proceeds for the acquisition of, or investment in, businesses, products, services, or technologies that complement our business, although we have no current commitments or agreements to enter into any acquisitions or investments. We may also, in our discretion, use a portion of the net proceeds to pay down certain existing debt obligations. Our credit facilities do not contain any restrictions on the amount of offering proceeds we may use for such purpose. As of December 31, 2013, we had outstanding borrowings of $20.0 million under our credit facility which bore an interest rate of 3.85% per annum. The credit facility matures on September 30, 2016. To the extent we are required to make a preference payment under the terms of our Series D redeemable convertible preferred stock as described on page 38 of the section entitled “Risk Factors” and choose to do so using cash, we would make such payment out of the proceeds from the offering.

 

We will have broad discretion over the uses of the net proceeds of this offering. Pending the above uses, we intend to invest the net proceeds from this offering in short-term, interest-bearing obligations, investment-grade instruments, certificates of deposit or direct or guaranteed obligations of the U.S. government. We cannot predict whether the invested proceeds will yield a favorable return.

 

DIVIDEND POLICY

 

We have never declared or paid any cash dividends on our common stock. We currently intend to retain any future earnings and do not expect to pay any cash dividends on our common stock for the foreseeable future. Any determination to pay dividends in the future will be at the discretion of our board of directors and will be dependent on a number of factors, including our earnings, capital requirements and overall financial conditions. Currently, the agreement for our revolving credit facility contains restrictions on our ability to pay dividends.

 

41


Table of Contents

CAPITALIZATION

 

The following table sets forth our cash and cash equivalents and our capitalization as of December 31, 2013 on:

 

   

An actual basis.

 

   

A pro forma basis, giving effect to (i) the automatic conversion of all outstanding shares of our convertible preferred stock and redeemable convertible preferred stock into 39,997,114 shares of our common stock upon completion of this offering, as if such conversion had happened on December 31, 2013; (ii) the increase in accrued liabilities and accumulated deficit of $0.3 million to pay a contingent payment to a lender upon completion of this offering, as if such payment was due December 31, 2013; and (iii) the effectiveness of amendments to our certificate of incorporation upon completion of this offering, as if such amendments had also become effective on December 31, 2013.

 

   

A pro forma as adjusted basis to give further effect to (i) the sale of shares of common stock by us in this offering at an assumed initial public offering price of $14.00 per share, the midpoint of the estimated offering price range set forth on the cover page of this prospectus, and after deducting the estimated underwriting discounts and commissions and estimated offering expenses and (ii) the application of the net proceeds from this offering to repay the outstanding borrowings under our credit facility, which were $20.0 million as of December 31, 2013.

 

The information below is illustrative only, and our capitalization following completion of this offering will be adjusted based on the actual initial public offering price and other terms of the offering determined at the pricing of this offering. You should read this table together with “Selected Consolidated Financial Data,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and our consolidated financial statements and related notes, each included elsewhere in this prospectus.

 

     As of
December 31, 2013
 
     Actual     Pro Forma     Pro Forma
as  Adjusted
 
     (In thousands, except share and
per share data)
 
     (Unaudited)  

Cash and cash equivalents

   $ 20,793      $ 20,793      $ 113,473   
  

 

 

   

 

 

   

 

 

 

Total debt

   $ 20,000      $ 20,000      $   

Redeemable convertible preferred stock, no par value per share—115,000 shares authorized; 80,000 shares issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma or pro forma as adjusted

     81,426                 

Convertible preferred stock, no par value per share—30,569,325 shares authorized; 30,569,268 issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma or pro forma as adjusted

     44,749                 

Stockholders’ deficit:

      

Preferred stock, $0.00001 par value per share—no shares authorized, issued or outstanding, actual; 100,000,000 shares authorized, no shares issued or outstanding, pro forma and pro forma as adjusted

                     

Common stock, $0.00001 par value per share—65,600,000 shares authorized, 10,032,010 shares issued and outstanding, actual; 500,000,000 shares authorized, 50,029,124 shares issued and outstanding, pro forma; 59,029,124 shares issued and outstanding, pro forma as adjusted

            1        1   

Additional paid-in capital

     12,185        138,359        251,039   

Accumulated deficit

     (147,065     (147,365     (147,365
  

 

 

   

 

 

   

 

 

 

Total stockholders’ deficit

     (134,880     (9,005     103,675   
  

 

 

   

 

 

   

 

 

 

Total capitalization

   $ 11,295      $ 10,995      $ 103,675   
  

 

 

   

 

 

   

 

 

 

 

42


Table of Contents

A $1.00 increase or decrease in the assumed initial public offering price of $14.00 per share, which is the midpoint of the estimated offering price range set forth on the cover page of this prospectus, would increase or decrease our pro forma as adjusted cash and cash equivalents, additional paid-in capital, total stockholders’ deficit and total capitalization by approximately $8.4 million, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting estimated underwriting discounts and commissions payable by us. Similarly, each one million share increase or decrease in the number of shares of common stock offered by us would increase or decrease the net proceeds that we receive from this offering by approximately $13.0 million, assuming the assumed initial public offering price of $14.00 per share, the midpoint of the estimated offering price range set forth on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions payable by us.

 

The information in the table above assumes that we will not, under the terms of our Series D redeemable convertible preferred stock, make a preference payment in connection with this offering, as described on page 38 of the section entitled “Risk Factors.”

 

The number of shares of common stock issued and outstanding actual, pro forma and pro forma as adjusted in the table above does not include the following shares:

 

   

9,971,381 shares of our common stock issuable upon the exercise of stock options outstanding as of December 31, 2013, with a weighted-average exercise price of $4.14 per share; and

 

   

10,735,029 shares of common stock reserved for future issuances and grants under our stock-based compensation plans, consisting of (i) 1,435,029 shares of common stock reserved for future awards under our 2008 Stock Option Plan as of December 31, 2013, (ii) 7,700,000 shares of common stock reserved for future issuance under our 2014 Equity Incentive Plan, which will become effective on the date of this prospectus, and (iii) 1,600,000 shares of common stock reserved for future issuance under our 2014 Employee Stock Purchase Plan, which will become effective on the date of this prospectus. Upon completion of this offering, any remaining shares available for future awards under our 2008 Stock Option Plan will be added to the shares reserved under our 2014 Equity Incentive Plan, and we will cease granting awards under our 2008 Option Plan. Our 2014 Equity Incentive Plan and 2014 Employee Stock Purchase Plan also provide for automatic annual increases in the number of shares reserved under the plans, as more fully described in “Executive Compensation—Employee Benefit and Stock Plans.”

 

43


Table of Contents

DILUTION

 

If you invest in our common stock, your interest will be diluted to the extent of the difference between the initial public offering price per share and the pro forma as adjusted net tangible book value per share of our common stock immediately after this offering. Our pro forma net tangible book value as of December 31, 2013 was $(10.1) million, or $(0.20) per share of common stock. Net tangible book value per share represents the amount of our total tangible assets less our total liabilities, divided by the number of shares of common stock outstanding as of December 31, 2013, after giving effect to (i) the conversion of all outstanding shares of our convertible preferred stock and redeemable convertible preferred stock into shares of common stock upon completion of this offering and (ii) the reduction in working capital and increase in accumulated deficit of $0.3 million to pay a contingent payment to a lender.

 

After giving effect to the sale by us of shares of common stock in this offering at an assumed initial public offering price of $14.00 per share, which is the midpoint of the estimated offering price range set forth on the cover page of this prospectus, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us, our pro forma as adjusted net tangible book value as of December 31, 2013 would have been approximately $102.6 million, or approximately $1.74 per share. This amount represents an immediate increase in pro forma net tangible book value of $1.94 per share to our existing stockholders and an immediate dilution in pro forma net tangible book value of approximately $12.26 per share to new investors purchasing shares of common stock in this offering at the assumed initial public offering price.

 

The following table illustrates this dilution:

 

Assumed initial public offering price per share

     $ 14.00   

Pro forma net tangible book value per share as of December 31, 2013

   $ (0.20  

Increase in pro forma net tangible book value per share attributable to new investors

     1.94     
  

 

 

   

Pro forma as adjusted net tangible book value per share after this offering

       1.74   
    

 

 

 

Dilution per share to investors in this offering

     $ 12.26   
    

 

 

 

 

A $1.00 increase or decrease in the assumed initial public offering price of $14.00 per share, which is the midpoint of the estimated offering price range set forth on the cover page of this prospectus, would increase or decrease our pro forma as adjusted net tangible book value per share to new investors by approximately $0.14 and would increase or decrease dilution per share to new investors by approximately $0.86, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting estimated underwriting discounts and commissions payable by us. In addition, to the extent any outstanding options are exercised, you will experience further dilution.

 

The following table presents on a pro forma as adjusted basis as of December 31, 2013, after giving effect to the conversion of all outstanding shares of convertible preferred stock and redeemable convertible preferred stock into common stock upon completion of this offering, the differences between the existing stockholders and the new investors purchasing shares of our common stock in this offering, with respect to the number of shares purchased from us, the total consideration paid or to be paid to us, which includes net proceeds received from the issuance of common stock, convertible preferred stock and redeemable convertible preferred stock, cash received from the exercise of stock options and the amount to be paid to us by new investors at an assumed offering price of $14.00 per share, which is the midpoint of the estimated offering price range set forth on the cover page of this prospectus.

 

     Shares Purchased     Total Consideration     Average
Price
per Share
 
     Number      Percent     Amount      Percent    

Existing stockholders

     50,029,124         84.8   $ 127,107,907         50.2   $ 2.54   

New investors

     9,000,000         15.2        126,000,000         49.8      $ 14.00   
  

 

 

    

 

 

   

 

 

    

 

 

   

Totals

     59,029,124         100.0   $ 253,107,907         100.0  
  

 

 

    

 

 

   

 

 

    

 

 

   

 

44


Table of Contents

A $1.00 increase or decrease in the assumed initial public offering price of $14.00 per share, which is the midpoint of the estimated offering price range set forth on the cover page of this prospectus, would increase or decrease the total consideration paid by new investors by $9.0 million and increase or decrease the percent of total consideration paid by new investors by approximately 1.8%, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting estimated underwriting discounts and commissions payable by us.

 

Sales of shares of common stock by the selling stockholders in this offering will reduce the number of shares of common stock held by existing stockholders to 46,529,124, or approximately 78.8% of the total shares of common stock outstanding after this offering, and will increase the number of shares held by new investors to 12,500,000, or approximately 21.2% of the total shares of common stock outstanding after this offering.

 

After giving effect to the sale of shares in this offering by us and the selling stockholders, if the underwriters exercise their over-allotment option in full, our existing stockholders would own approximately 75.6% and our new investors would own approximately 24.4% of the total number of shares of our common stock outstanding after this offering.

 

The information in the tables above assumes that we will not, under the terms of our Series D redeemable convertible preferred stock, make a preference payment in connection with this offering, as described on page 38 of the section entitled “Risk Factors.”

 

The number of shares of our common stock to be outstanding after this offering is based upon the number of shares of our common stock outstanding as of December 31, 2013 and excludes:

 

   

9,971,381 shares of our common stock issuable upon the exercise of stock options outstanding as of December 31, 2013, with a weighted-average exercise price of $4.14 per share; and

 

   

10,735,029 shares of common stock reserved for future issuances and grants under our stock-based compensation plans, consisting of (i) 1,435,029 shares of common stock reserved for future awards under our 2008 Stock Option Plan as of December 31, 2013, (ii) 1,600,000 shares of common stock reserved for future issuance under our 2014 Equity Incentive Plan, which will become effective on the date of this prospectus, and (iii) 7,700,000 shares of common stock reserved for future issuance under our 2014 Employee Stock Purchase Plan, which will become effective on the date of this prospectus. Upon completion of this offering, any remaining shares available for future awards under our 2008 Stock Option Plan will be added to the shares reserved under our 2014 Equity Incentive Plan, and we will cease granting awards under our 2008 Option Plan. Our 2014 Equity Incentive Plan and 2014 Employee Stock Purchase Plan also provide for automatic annual increases in the number of shares reserved under the plans, as more fully described in “Executive Compensation—Employee Benefit and Stock Plans.”

 

45


Table of Contents

SELECTED CONSOLIDATED FINANCIAL DATA

 

The following tables summarize our selected consolidated statements of operations data. You should read the following tables in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements, related notes and other financial information included elsewhere in this prospectus. We derived the selected consolidated statements of operations data for the years ended December 31, 2011, 2012 and 2013 and the consolidated balance sheet data as of December 31, 2012 and 2013 from our audited consolidated financial statements included elsewhere in this prospectus. We derived the selected consolidated statements of operations data for the year ended December 31, 2010 and the consolidated balance sheet data as of December 31, 2011 from our audited consolidated financial statements which are not included in this prospectus. Our historical results are not necessarily indicative of results to be expected in the future.

 

     Year Ended
December 31,
 
     2010     2011     2012     2013  
     (In thousands, except per share data)  

Consolidated Statements of Operations Data:

  

Revenue:

        

Products

   $ 50,288      $ 79,763      $ 99,891      $ 112,045   

Services

     5,014        11,515        20,175        29,693   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total revenue

     55,302        91,278        120,066        141,738   

Cost of revenue (1) :

        

Products

     11,206        16,442        18,619        25,284   

Services

     1,050        2,033        5,891        8,112   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total cost of revenue

     12,256        18,475        24,510        33,396   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     43,046        72,803        95,556        108,342   

Operating expenses (1) :

        

Sales and marketing

     21,597        34,504        51,323        70,756   

Research and development

     9,016        16,652        25,513        33,348   

General and administrative

     2,351        3,110        10,225        15,556   

Litigation

     3,410        9,524        95,515        11,525   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     36,374        63,790        182,576        131,185   
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from operations

     6,672        9,013        (87,020     (22,843

Other income (expense), net:

        

Interest expense

     (609     (241     (135     (1,495

Interest income and other income (expense), net

     (567     (618     (2,237     (2,118
  

 

 

   

 

 

   

 

 

   

 

 

 

Total other income (expense), net

     (1,176     (859     (2,372     (3,613
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) before provision for income taxes

     5,496        8,154        (89,392     (26,456

Provision for income taxes

     285        850        758        640   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

     5,211        7,304        (90,150     (27,096

Accretion of redeemable convertible preferred stock dividend (2)

                          (1,982
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income available (loss attributable) to common stockholders

   $ 5,211      $ 7,304      $ (90,150   $ (29,078
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income available (loss attributable) to common stockholders, basic

   $ 479      $ 943      $ (90,150   $ (29,078
  

 

 

   

 

 

   

 

 

   

 

 

 

 

46


Table of Contents
     Year Ended December 31,  
     2010      2011      2012     2013  
     (In thousands, except per share data)  

Net income per share available (loss attributable) to common stockholders (3) :

          

Basic

   $ 0.07       $ 0.13       $ (10.80   $ (3.14
  

 

 

    

 

 

    

 

 

   

 

 

 

Diluted

   $ 0.07       $ 0.12       $ (10.80   $ (3.14
  

 

 

    

 

 

    

 

 

   

 

 

 

Weighted-average shares used in computing net income per share available (loss attributable) to common stockholders (3) :

          

Basic

     6,494         7,397         8,344        9,262   
  

 

 

    

 

 

    

 

 

   

 

 

 

Diluted

     9,178         10,403         8,344        9,262   
  

 

 

    

 

 

    

 

 

   

 

 

 

Pro forma net loss per share attributable to common stockholders (unaudited) (3) :

          

Basic

           $ (0.62
          

 

 

 

Diluted

           $ (0.62
          

 

 

 

Weighted-average shares used in computing pro forma net loss attributable to common stockholders (unaudited) (3) :

          

Basic

             43,723   
          

 

 

 

Diluted

             43,723   
          

 

 

 

Supplemental pro forma net loss per share attributable to common stockholders (unaudited) (4) :

          

Basic

           $ (0.61
          

 

 

 

Diluted

           $ (0.61
          

 

 

 

Supplemental pro forma weighted-average common shares outstanding used in computing supplemental pro forma net loss attributable to common stockholders (unaudited) (4) :

          

Basic

             44,087   
          

 

 

 

Diluted

             44,087   
          

 

 

 

Other Financial Data:

          

Adjusted EBITDA (loss) (5)

   $ 10,866       $ 20,227       $ 15,110      $ (4,164
  

 

 

    

 

 

    

 

 

   

 

 

 

 

(1)   Results above include stock-based compensation expense as follows:

 

     Year Ended
December 31,
 
     2010      2011      2012      2013  
     (In thousands)  

Cost of revenue

   $ 17       $ 49       $ 87       $ 162   

Sales and marketing

     265         696         1,316         2,228   

Research and development

        249         551         776         1,356   

General and administrative

     90         168         361         536   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total stock-based compensation expense

   $ 621       $ 1,464       $ 2,540       $ 4,282   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

(2)   The redemption price of our Series D redeemable convertible preferred stock accretes at the rate of 6.0% per annum, compounding annually. In the event of a qualified initial public offering, the Series D redeemable convertible preferred stock will automatically convert into common stock. See Note 8 to our consolidated financial statements appearing elsewhere in this prospectus.
(3)   See Notes 1 and 11 to our consolidated financial statements appearing elsewhere in this prospectus for an explanation of the calculations of basic and diluted net income per share available (loss attributable) to common stockholders.

 

47


Table of Contents
(4)   See Notes 1 and 11 to our consolidated financial statements appearing elsewhere in this prospectus for an explanation of the calculation of supplemental basic and diluted pro forma net loss per share attributable to common stockholders.
(5)   See “Adjusted EBITDA” below for more information and for a reconciliation of net income (loss) to Adjusted EBITDA (loss).

 

     As of December 31,  
     2010     2011     2012     2013  
     (In thousands)  

Consolidated Balance Sheet Data:

        

Cash and cash equivalents

   $ 6,877      $ 19,048      $ 23,867      $ 20,793   

Working capital (deficit)

     8,437        19,064        (61,460     15,122   

Total assets

     36,198        55,433        76,794        93,794   

Total debt

     4,159        1,654        5,631        20,000   

Deferred revenue, net—current and long-term

     14,463        18,050        27,707        41,232   

Redeemable convertible preferred stock

                          81,426   

Convertible preferred stock

     41,648        41,665        41,737        44,749   

Total stockholders’ deficit

     (34,829     (25,590     (111,892     (134,880

 

Other Financial Data

 

Adjusted EBITDA

 

Adjusted EBITDA (loss) is an important measure used by our management and board of directors to evaluate our operating performance, develop future operating plans, make strategic decisions for the allocation of capital and determine our compliance with debt covenants. In particular, the exclusion of certain expenses, primarily the amounts paid in settlement of, and other expenses associated with, litigation between ourselves and Brocade Communications Systems, Inc., in calculating Adjusted EBITDA facilitates comparisons of our operating performance on a period-to-period basis. Accordingly, we believe that Adjusted EBITDA also may provide useful information to investors and others in understanding and evaluating our operating results in the same manner as our management and board of directors. We define Adjusted EBITDA as our net income (loss) minus: (i) amounts paid in settlement of, and expenses associated with, the Brocade litigation, (ii) interest expense, (iii) interest income and other (income) expense, net, which primarily includes changes in the fair value of convertible preferred stock warrant liabilities and foreign exchange gains and losses, (iv) stock-based compensation, (v) depreciation and amortization and (vi) our provision for income taxes.

 

Reconciliation of Net Income (Loss) to Adjusted EBITDA (Loss)

 

     Year Ended
December 31,
 
     2010      2011      2012     2013  
     (In thousands)  

Net income (loss)

   $ 5,211       $ 7,304       $ (90,150   $ (27,096

Brocade litigation

     1,462         6,333         94,296        7,317   

Interest expense

     609         241         135        1,495   

Interest income and other (income) expense, net

     567         618         2,237        2,118   

Stock-based compensation

     621         1,464         2,540        4,282   

Depreciation and amortization

     2,111         3,417         5,294        7,080   

Provision for income taxes

     285         850         758        640   
  

 

 

    

 

 

    

 

 

   

 

 

 

Adjusted EBITDA (loss)

   $ 10,866       $ 20,227       $ 15,110      $ (4,164
  

 

 

    

 

 

    

 

 

   

 

 

 

 

Adjusted EBITDA (loss) is a supplemental measure of financial performance that is not required by, or presented in accordance with, U.S. generally accepted accounting principles, or GAAP. Our use of Adjusted EBITDA has limitations as an analytical tool, however, and you should not consider it in isolation or as a substitute for net income or any of our other operating results reported under GAAP. Adjusted EBITDA excludes

 

48


Table of Contents

some costs, namely, non-cash stock-based compensation and depreciation and amortization expense, that are recurring, and therefore it does not reflect the non-cash impact of such expenses or working capital needs even though they will continue for the foreseeable future. Moreover, other companies may calculate Adjusted EBITDA differently or may use other measures to evaluate their performance, both of which could reduce the usefulness of our Adjusted EBITDA as a tool for comparison. Because of these limitations, you should consider Adjusted EBITDA alongside other financial performance measures, including net income (loss), various cash flow metrics, and other financial results presented in accordance with GAAP.

 

49


Table of Contents

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION

AND RESULTS OF OPERATIONS

 

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our “Selected Consolidated Financial Data” and our consolidated financial statements and related notes included elsewhere in this prospectus.

 

Overview

 

We are a leading provider of application networking technologies. Our solutions enable enterprises, service providers, Web giants and government organizations to accelerate, secure and optimize the performance of their data center applications and networks. Our products are built on our Advanced Core Operating System, or ACOS, platform of advanced network technologies, which is designed to enable our products to deliver substantially greater performance and security relative to prior generation application networking products. Our software based ACOS architecture also provides the flexibility that enables us to expand our business to offer additional products to solve a growing array of networking and security challenges arising from increased Internet cloud and mobile computing.

 

We currently offer three software based advanced application networking solutions. These are Application Delivery Controllers, or ADCs, to optimize data center performance, Carrier Grade Network Address Translation, or CGN, to provide address and protocol translation services for service provider networks, and a Distributed Denial of Service Threat Protection System, or TPS, for network-wide security protection. We deliver these solutions both on optimized hardware appliances and as virtual appliances across our Thunder Series and AX Series product families.

 

Our company was founded in 2004 to create efficient, application-aware application networking performance and security solutions. Through development of the ACOS platform, accompanied by a sustained high level of innovation and continued feature development, we have produced a growing portfolio of application networking products. In 2005, we released our first product, and in 2007, we introduced our AX Series of ADCs to optimize data center performance. In 2009, we added security capabilities to our AX Series. In 2010, we further expanded our AX Series products to provide our CGN solution that extends the life of increasingly scarce IPv4 address blocks and their associated infrastructure, and provides migration solutions to the IPv6 addressing standard. In May 2013, we released our Thunder Series, a family of physical and virtual appliances that integrate an application delivery controller with security, network control and management tools. Thunder Series products can provide both ADC and CGN solutions, as well as network-wide security protection through our TPS solution. We deliver these solutions both on optimized hardware appliances and as virtual appliances across our Thunder Series and AX Series product families.

 

We derive revenue from sales of products and related support services. Products revenue is generated primarily by sales of hardware appliances with perpetual licenses to our software solutions. We generate services revenue primarily from sales of maintenance and support. End-customers predominantly purchase maintenance and support in conjunction with purchases of our products.

 

We sell our products globally to service providers and enterprises that depend on data center applications and networks to generate revenue and manage operations efficiently. Our end-customers operate in a variety of industries, including telecommunications, technology, industrial, retail, financial and education. Since inception, our customer base has grown rapidly. As of December 31, 2013, we had sold products to more than 2,900 customers across 65 countries, including three of the top four United States wireless carriers, seven of the top ten United States cable service providers, and the top three wireless carriers in Japan, in addition to other global enterprises, Web giants and governmental organizations. Our end-customers often follow an initial purchase with subsequent additional purchases. For example, our top 25 end-customers, as measured by revenue generated in 2012 and 2013, have, on average, made follow-on purchases in 81% of the quarters following their initial purchase.

 

50


Table of Contents

We sell substantially all of our solutions through our high-touch sales organization as well as distribution channel partners, including distributors, value added resellers and system integrators, and fulfill nearly all orders globally through such partners. We believe this sales approach allows us to obtain the benefits of channel distribution, such as expanding our market coverage, while still maintaining face-to-face relationships with our end-customers. We outsource the manufacturing of our hardware products to original design manufacturers. We perform quality assurance and testing at our San Jose, California facilities, as well as at our manufacturers’ locations. We warehouse and deliver our products out of our San Jose warehouse. We also outsource warehousing and delivery to a third-party logistics provider in some regions.

 

During the year ended December 31, 2012, 36% of our total revenue was generated from the United States, 49% from Japan, 9% from the Asia Pacific region, excluding Japan, 5% from EMEA, and 1% from other geographical regions. During the year ended December 31, 2013, 48% of our total revenue was generated from the United States, 28% from Japan, 11% from the Asia Pacific region, excluding Japan, 8% from EMEA, and 5% from other geographical regions.

 

As a result of the nature of our target market and the current stage of our development, a substantial portion of our revenue comes from a limited number of large end-customers, including service providers, in any period. For example, sales to NTT DoCoMo, Inc., through a reseller, accounted for approximately 32% of our total revenue during the year ended December 31, 2012 and approximately 13% of our total revenue during the year ended December 31, 2013. In addition, during the years ended December 31, 2012 and 2013, purchases from our ten largest end-customers accounted for approximately 49% and 43% of our total revenue. The composition of the group of these ten largest end-customers changes from period to period, but often includes service providers, who accounted for approximately 53% and 47% of our total revenue during the years ended December 31, 2012 and 2013. Sales to these large end-customers have typically been characterized by large but irregular purchases with long initial sales cycles. After initial deployment, subsequent purchases of our products typically have a more compressed sales cycle. The timing of these purchases and the delivery of the purchased product is difficult to predict. As a consequence, any acceleration or delay in anticipated product purchases by or deliveries to our largest end-customers could materially impact our revenue and operating results in any quarterly period and cause our quarterly revenue and operating results to fluctuate from quarter to quarter and also be difficult to predict.

 

In recent years, our financial performance was affected by a protracted, but now settled, intellectual property litigation with Brocade Communications Systems, Inc. Since the litigation commenced in August 2010, we incurred substantial legal expenses in each financial period, as shown in our results of operations. In addition, the agreement to settle the litigation in May 2013 resulted in the cash payment by us of an aggregate of $75.0 million in the second and third quarters of 2013, plus interest. We also believe that the presence of such litigation, and the uncertainty it created in our market, affected our revenue during these periods, especially following the issuance of injunctions in the litigation in the first quarter of 2013. Although such injunctions did not prevent us from selling our redesigned products, certain customers informed us that they would not purchase any of our products until we settled the dispute. In particular, total revenue for the quarters ended March 31 and June 30, 2013 grew 12% and 7% year over year, as compared to growth of 27% and 23% in the quarters ended September 30 and December 31, 2013, year over year. We chose to invest in product development and sales and marketing during the period of the Brocade litigation in order to best position our portfolio and presence in the market in anticipation of the time that the litigation was over. To calculate Adjusted EBITDA we exclude the Brocade litigation settlement and associated litigation fees and expenses. This facilitates comparisons of our operating performance on a period-to-period basis.

 

We intend to continue to invest for long-term growth. We have invested and expect to continue to invest heavily in our product development efforts to deliver new products and additional features in our current products to address customer needs. In addition, we expect to continue to expand our global sales and marketing organizations, expand our distribution channel partner programs and increase awareness of our solutions on a global basis. Additionally we will be investing in general and administration resources to meet the requirements to operate as a public company. Our investments in growth in these areas may affect short-term profitability.

 

51


Table of Contents

For the years ended December 31, 2010, 2011, 2012 and 2013, our total revenue was $55.3 million, $91.3 million, $120.1 million and $141.7 million, representing a compound annual growth rate of approximately 37% from 2010 to 2013. Our total revenue grew 32% from 2011 to 2012 and 18% from 2012 to 2013. We expect our overall revenue to increase as a result of the investments described above, coupled with the impact of the resolution of our litigation with Brocade. Internationally we anticipate revenue to increase on an absolute basis, primarily in EMEA and China. The majority of the revenue increase is expected to be from repeat customer purchases, however, we also expect to increase revenue expansion of both our direct sales force and distribution channel partner programs. However, our expectations regarding increases in revenue in future periods are subject to numerous risks and uncertainties and our revenue may not increase as we expect. Please see “Risk Factors” beginning on page 12.

 

For our years ended December 31, 2010, 2011, 2012 and 2013 our gross margin was 78%, 80%, 80% and 76%. We generated net income (loss) of $5.2 million, $7.3 million, $(90.2) million and $(27.1) million for our years ended December 31, 2010, 2011, 2012 and 2013. Our net income in these periods was affected by the settlement and legal expenses related to our litigation with Brocade.

 

Adjusted EBITDA

 

Adjusted EBITDA (loss) is an important measure used by our management and board of directors to evaluate our operating performance, develop future operating plans, make strategic decisions for the allocation of capital and determine our compliance with debt covenants. In particular, the exclusion of certain expenses, primarily the amounts paid in settlement of, and other expenses associated with, litigation between ourselves and Brocade, in calculating Adjusted EBITDA facilitates comparisons of our operating performance on a period-to-period basis. Accordingly, we believe that Adjusted EBITDA also may provide useful information to investors and others in understanding and evaluating our operating results in the same manner as our management and board of directors. We define Adjusted EBITDA as our net income (loss) minus: (i) amounts paid in settlement of, and other expenses associated with, the Brocade litigation, (ii) interest expense, (iii) interest income and other (income) expense, net, which primarily includes changes in the fair value of convertible preferred stock warrant liabilities and foreign exchange gains and losses, (iv) stock-based compensation, (v) depreciation and amortization and (vi) our provision for income taxes.

 

     Year Ended
December 31,
 
     2011      2012      2013  
     (In thousands)  

Adjusted EBITDA (loss)

   $ 20,227       $ 15,110       $ (4,164

 

Adjusted EBITDA decreased from $20.2 million in 2011 to $15.1 million in 2012 to a loss of $(4.2) million in 2013. The decrease in Adjusted EBITDA from 2011 to 2012 was primarily a result of a 31.5% increase in revenue, while operating expenses excluding the Brocade litigation increased by 53.6%, as we continued to invest in research and development of new products and product enhancements, sales and marketing, and general and administrative infrastructure to support our growth. The decrease in Adjusted EBITDA in 2012 to 2013 was primarily a result of a 18.1% increase in revenue, while operating expenses excluding the Brocade litigation increased by 40.3%. We believe the Brocade litigation affected our revenue during the first half of 2013 due to the uncertainty created by the injunctions outstanding during the first half of 2013. In addition, we continued to invest in our research and development for our products and product enhancements, sales and marketing, and general and administrative infrastructure to support our planned growth.

 

52


Table of Contents

Basis of Presentation

 

Revenue

 

Our total revenue consists of the following:

 

Products Revenue

 

Our products revenue consists of revenue from sales of our hardware appliances upon which our software is installed. Such software includes our ACOS software, as well as one of our ADC, CGN and TPS solutions. Purchase of a hardware appliance includes a perpetual license to the included software. We recognize product revenue at the time of shipment, provided that all other revenue recognition criteria have been met. As a percentage of revenue, our products revenue may vary from quarter to quarter based on, among other things, the timing of orders and delivery of products, cyclicality and seasonality, changes in currency exchange rates and the impact of significant transactions with unique terms and conditions.

 

Services Revenue

 

We generate services revenue from sales of post contract support, or PCS, which is bundled with sales of products and professional services. We offer tiered PCS services under renewable, fee-based PCS contracts, primarily including technical support, hardware repair and replacement parts, and software upgrades on a when-and-if-released basis. We recognize services revenue ratably over the term of the PCS contract, which is typically one year, but can be up to five years. In absolute dollars, we expect our services revenue to increase as we expand our installed base.

 

Cost of Revenue

 

Our cost of revenue consists of the following:

 

Cost of Products Revenue

 

Cost of products revenue is comprised primarily of the cost of third-party manufacturing services and cost of component inventory, each for the hardware component of our products. Cost of products revenue also includes personnel costs, shipping costs, inventory write-downs, certain allocated facilities and information technology infrastructure costs, and expenses associated with logistics and quality control.

 

Cost of Services Revenue

 

Cost of services revenue is comprised primarily of personnel costs for our technical support, training and professional service teams. Cost of services revenue also includes the costs of inventory used to provide hardware replacements to end-customers under PCS contracts and certain allocated facilities and information technology infrastructure costs.

 

Gross Margin

 

Gross margin may vary and be unpredictable from quarter to quarter based on a variety of factors. These may include the mix of revenue from each of our regions, the mix of our products sold within a period, discounts provided to customers, discounts on early sales of new products to gain market penetration, write-downs of obsolete inventory and international currency exchange rates. As to currency, in general our sales are denominated in U.S. Dollars, however in Japan they are denominated in Yen. Changes in the Dollar/Yen exchange rate will therefore affect the dollar value received and gross margin. Any of the factors noted above can generate either a positive or negative impact on gross margin as compared to another period.

 

Operating Expenses

 

Our operating expenses consist of sales and marketing, research and development, general and administrative and litigation. The largest component of our operating expenses, excluding litigation, is personnel costs. Personnel costs consist of wages, benefits, bonuses, and, with respect to sales and marketing expenses,

 

53


Table of Contents

sales commissions. Personnel costs also include stock-based compensation and travel expenses. We expect personnel costs to continue to increase in absolute dollars as we hire new employees to continue to grow our business.

 

Sales and Marketing

 

Sales and marketing expenses are our largest functional category of total operating expense. These expenses primarily consist of personnel costs related to our employees engaged in sales and marketing activities. Sales and marketing expenses also include the cost of marketing programs, trade shows, consulting services, promotional materials, demonstration equipment, depreciation and certain allocated facilities and information technology infrastructure costs. We expect our sales and marketing expenses to continue to increase in absolute dollars as we increase the size of our sales and marketing organization and expand into new countries.

 

Research and Development

 

Research and development efforts are focused on new product development and on developing additional functionality for our existing products. These expenses consist of personnel costs, and to a lesser extent, prototype materials, depreciation and certain allocated facilities and information technology infrastructure costs. We expense research and development costs as incurred. We expect our research and development expenses to increase in absolute dollars as we continue to develop new products and enhance our existing products.

 

General and Administrative

 

General and administrative expenses consist primarily of personnel costs, professional fees and facility costs. General and administrative personnel costs include executive, finance, human resources, information technology, facility and legal (excluding litigation) related expenses. Professional fees consist primarily of fees for outside accounting, tax, legal, recruiting and other administrative services. We expect our general and administrative expenses to increase in absolute dollars following the completion of this offering due to the additional legal, accounting, insurance, investor relations and other costs that we will incur as a public company, as well as other costs associated with growing our business.

 

Litigation

 

Litigation is comprised of legal expenses and changes in our litigation reserve, primarily relating to our litigation with Brocade Communications Systems, Inc. Legal expenses consist of professional fees incurred in defending ourselves against litigation matters and are expensed as incurred when professional services are provided. The litigation reserve consists of accruals we make for estimated losses in pending legal proceedings. Changes in the reserve are made as we change our estimates or make payments in damages or settlement. In May 2013, we entered into a settlement agreement with Brocade for $75.0 million, which we recognized in our consolidated statement of operations in the first quarter of 2012. The settlement of the litigation provided additional evidence about conditions that existed at the date of the December 31, 2012 financial statements. As the December 31, 2012 financial statements had not been issued at the time of the settlement, in accordance with ASC 855-10, Subsequent Events, the entire settlement amount was recorded in the first quarter of 2012. With this settlement, we expect our litigation expenses to decrease in absolute dollars going forward; however, we cannot predict with certainty that this will occur.

 

Other Income (Expense), Net

 

Other income (expense), net is comprised of the following items:

 

Interest Expense

 

Interest expense consists primarily of interest expense on our debt obligations. We expect our interest expense to increase on an absolute basis in the near term due to outstanding amounts under the credit agreement we entered into in September 2013.

 

54


Table of Contents

Interest Income and Other Income (Expense), Net

 

Interest income consists primarily of interest income earned on our cash and cash equivalents balances. Other income (expense) consists primarily of foreign currency exchange gains and losses and, through February 2013, fair value adjustments related to then-outstanding warrants to purchase our convertible preferred stock. Foreign currency exchange gains and losses relate to transactions and asset and liability balances denominated in currencies other than the U.S. Dollar. We expect our foreign currency gains and losses to continue to fluctuate in the future due to changes in foreign currency exchange rates.

 

Provision for Income Taxes

 

Provision for income taxes consists of federal and state income taxes in the United States and in certain foreign jurisdictions. Earnings from our non-U.S. activities are subject to local country income taxes and may be subject to U.S. income taxes. We record a valuation allowance to reduce our U.S. deferred tax assets to the amount that we believe we are more likely than not to realize. As a result, provision for income taxes primarily relates only to foreign and state taxes at this time, as we have recorded a full valuation allowance for federal income taxes.

 

Results of Operations

 

The following tables provide consolidated statements of operations data in dollars and as a percentage of our revenue. We have derived the data for the years ended December 31, 2011, 2012 and 2013 from our audited consolidated financial statements included elsewhere in this prospectus.

 

     Year Ended
December 31,
 
     2011     2012     2013  
     (In thousands, except percentages)  

Consolidated Statements of Operations Data:

    

Revenue:

      

Products

   $ 79,763      $ 99,891      $ 112,045   

Services

     11,515        20,175        29,693   
  

 

 

   

 

 

   

 

 

 

Total revenue

     91,278        120,066        141,738   

Cost of revenue (1)

      

Products

      16,442        18,619        25,284   

Services

     2,033        5,891        8,112   
  

 

 

   

 

 

   

 

 

 

Total cost of revenue

     18,475        24,510        33,396   
  

 

 

   

 

 

   

 

 

 

Gross profit

     72,803        95,556        108,342   

Operating expenses (1)

      

Sales and marketing

     34,504        51,323        70,756   

Research and development

     16,652        25,513        33,348   

General and administrative

     3,110        10,225        15,556   

Litigation

     9,524        95,515        11,525   
  

 

 

   

 

 

   

 

 

 

Total operating expenses

     63,790        182,576        131,185   
  

 

 

   

 

 

   

 

 

 

Income (loss) from operations

     9,013        (87,020     (22,843

Other income (expense), net:

      

Interest expense

     (241     (135     (1,495

Interest income and other income (expense), net

     (618     (2,237     (2,118
  

 

 

   

 

 

   

 

 

 

Total other income (expense), net

     (859     (2,372     (3,613
  

 

 

   

 

 

   

 

 

 

Income (loss) before provision for income taxes

     8,154        (89,392     (26,456

Provision for income taxes

     850        758        640   
  

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 7,304      $ (90,150   $ (27,096
  

 

 

   

 

 

   

 

 

 

 

55


Table of Contents
     Year Ended
December 31,
 
     2011     2012     2013  

Revenue:

      

Products

     87.4  %      83.2  %      79.1  % 

Services

     12.6  %      16.8  %      20.9  % 
  

 

 

   

 

 

   

 

 

 

Total revenue

     100.0  %      100.0  %      100.0  % 

Cost of revenue:

      

Products

        18.0  %         15.5  %         17.9  % 

Services

     2.2  %      4.9  %      5.7  % 
  

 

 

   

 

 

   

 

 

 

Total cost of revenue

     20.2  %      20.4  %      23.6  % 
  

 

 

   

 

 

   

 

 

 

Gross profit

     79.8  %      79.6  %      76.4  % 

Operating expenses:

      

Sales and marketing

     37.8  %      42.7  %      49.9  % 

Research and development

     18.2  %      21.3  %      23.5  % 

General and administrative

     3.5  %      8.5  %      11.0  % 

Litigation

     10.4  %      79.6  %      8.1  % 
  

 

 

   

 

 

   

 

 

 

Total operating expenses

     69.9  %      152.1  %      92.5  % 
  

 

 

   

 

 

   

 

 

 

Income (loss) from operations

     9.9  %      (72.5 )%      (16.1 )% 

Other income (expense), net:

      

Interest expense

     (0.3 )%      (0.1 )%      (1.1 )% 

Interest income and other income (expense), net

     (0.7 )%      (1.9 )%      (1.4 )% 
  

 

 

   

 

 

   

 

 

 

Total other income (expense), net

     (1.0 )%      (2.0 )%      (2.5 )% 
  

 

 

   

 

 

   

 

 

 

Income (loss) before provision for income taxes

     8.9  %      (74.5 )%      (18.6 )% 

Provision for income taxes

     0.9  %      0.6  %      0.5
  

 

 

   

 

 

   

 

 

 

Net income (loss)

     8.0  %      (75.1 )%      (19.1 )% 
  

 

 

   

 

 

   

 

 

 

 

(1)   Results above include stock-based compensation expense as follows:

 

     Year Ended
December 31,
 
     2011      2012      2013  
     (In thousands)  

Cost of revenue

   $ 49       $ 87       $ 162   

Sales and marketing

     696         1,316         2,228   

Research and development

     551         776         1,356   

General and administrative

     168         361         536   
  

 

 

    

 

 

    

 

 

 

Total stock-based compensation expense

   $ 1,464       $ 2,540       $ 4,282   
  

 

 

    

 

 

    

 

 

 

 

56


Table of Contents

Comparison of the Years Ended December 31, 2012 and 2013

 

Revenue

 

     Year Ended
December 31,
     Change  
     2012      2013      Amount     %  
     (In thousands, except percentages)  

Revenue:

          

Products

   $ 99,891       $ 112,045       $ 12,154        12.2

Services

     20,175         29,693         9,518        47.2
  

 

 

    

 

 

    

 

 

   

Total revenue

   $ 120,066       $ 141,738       $ 21,672        18.1
  

 

 

    

 

 

    

 

 

   

Revenue by geographic location:

          

United States

   $ 43,389       $ 68,127       $ 24,738        57.0

Japan

      58,653          39,581         (19,072     (32.5 )% 

Asia Pacific, excluding Japan

     10,315         15,052         4,737        45.9

EMEA

     6,469         12,087         5,618        86.8

Other

     1,240         6,891         5,651        N.M.   
  

 

 

    

 

 

    

 

 

   

Total revenue

   $ 120,066       $ 141,738       $ 21,672        18.1
  

 

 

    

 

 

    

 

 

   

 

Revenue growth from the year ended December 31, 2012 to 2013 reflects increased demand for our products and related support and services. The increase in products revenue was driven by increased sales of our products primarily to existing customers. The increase in services revenue was related to the increase in PCS sales in connection with the increased unit sales of our hardware products, and the resulting increase in our installed base and the renewals of PCS on our installed customer base. The percentage increase in service revenue exceeds that of product revenue because service revenue is directly related to the installed base of product rather than the current year’s sales of product. Current year sales of product generate service revenue only after the date the unit is received by the customer. Services revenue in 2013, excluding revenue from new 2013 service contracts, as compared to services revenue in 2012, excluding revenue from new 2012 service contracts, grew by 58.9%. Services revenue related to new product orders during 2013 accounted for 21.6% of total services revenue during the year.

 

We believe the Brocade litigation affected our revenues during both these periods, but we believe this effect was particularly evident in the year ended December 31, 2013, due to the uncertainty created by injunctions issued in the matter in the six months ended June 30, 2013. Although such injunctions did not prevent us from selling our redesigned products, certain customers informed us that they would not purchase any of our products until we settled the dispute. The settlement of the Brocade litigation did not result in any material restrictions to our business.

 

In the year ended December 31, 2013, U.S. revenue was positively affected by a few large orders from existing customers purchasing our products for significant new project deployments within their organizations. These few large orders from existing customers accounted for 10% of revenue for 2013. We cannot be certain that similar orders will be received from these customers, or from other customers in the future. Similarly, we experienced a decrease in revenue in Japan primarily due to certain end-customers deploying and absorbing products in 2013 that were purchased in 2012 to accommodate anticipated growth in data traffic. As a result, 2013 revenues generated from our Japan region on a constant Dollar/Yen exchange rate declined by approximately 25% as compared to 2012. Even though we continue to communicate with our customers on their purchasing requirements, we cannot be certain of the timing of their future product purchases for specific projects from period to period. Revenue growth in other geographic locations was primarily due to our continued investment in increasing the size of our sales force and the number of distribution channel partners in those regions.

 

57


Table of Contents

Cost of Revenue, Gross Profit and Gross Margin

 

     Year Ended
December 31,
     Change  
     2012      2013      Amount      %  
     (In thousands, except percentages)  

Cost of revenue:

           

Products

   $ 18,619       $ 25,284       $ 6,665         35.8

Services

     5,891         8,112           2,221         37.7
  

 

 

    

 

 

    

 

 

    

Total cost of revenue

   $ 24,510       $ 33,396       $ 8,886         36.3
  

 

 

    

 

 

    

 

 

    

 

     Year Ended December 31,        
     2012     2013     Change  
     Amount      Gross
Margin
    Amount      Gross
Margin
    Amount      Gross
Margin
 
     (In thousands, except percentages)  

Gross profit:

               

Products

   $ 81,272         81.4   $ 86,761         77.4   $ 5,489         (4.0

Services

     14,284         70.8     21,581         72.7       7,297         1.9   
  

 

 

      

 

 

      

 

 

    

Total gross profit

   $ 95,556         79.6   $ 108,342         76.4   $ 12,786         (3.2
  

 

 

      

 

 

      

 

 

    

 

The decrease of 4.0 percentage points in product gross margin from the year ended December 31, 2012 to the year ended December 31, 2013 was primarily due to a higher than historical gross margin in the year ended December 31, 2012, related to higher than historical volumes coming from geographic regions with generally higher gross margins. In the year ended December 31, 2013, the geographical revenue mix returned to historical levels, as did gross margins. Additionally, in 2013 there was a modest negative impact to gross margin due to changes to the Dollar/Yen exchange rate. The increase of 1.9 percentage points in service gross margin was primarily a result of a 47.2% growth in services revenue, while cost of services revenue increased by only 37.7% due to increased operating efficiencies in our service and support group.

 

Operating Expenses

 

     Year Ended
December 31,
     Change  
     2012      2013      Amount     %  
     (In thousands, except percentages)  

Operating expenses:

          

Sales and marketing

   $ 51,323       $ 70,756       $ 19,433        37.9

Research and development

     25,513         33,348         7,835        30.7

General and administrative

     10,225         15,556         5,331        52.1
  

 

 

    

 

 

    

 

 

   

Non-GAAP operating expenses excluding litigation

     87,061         119,660         32,599        37.4

Litigation

     95,515         11,525         (83,990     (87.9 )% 
  

 

 

    

 

 

    

 

 

   

Total operating expenses

   $ 182,576       $ 131,185       $ (51,391     (28.1 )% 
  

 

 

    

 

 

    

 

 

   

 

Non-GAAP operating expenses, excluding litigation, is an important measure used by our management to evaluate our operating performance, develop future operating plans, and make strategic decisions related to the allocation of resources. In particular, the exclusion of litigation expenses facilitates comparison of our operating expenses on a period to period basis and with other companies. Accordingly, we believe the Non-GAAP operating expenses excluding litigation also may provide useful information to investors and others in understanding and evaluating our operating expenses in the same manner as our management.

 

58


Table of Contents

Sales and Marketing

 

The increase in sales and marketing expenses was primarily attributable to a $15.4 million increase in personnel and related costs, which includes a $7.3 million increase in employee compensation, a $6.1 million increase in commission and bonus expenses, a $0.9 million increase in stock-based compensation and a $1.1 million increase in travel costs, as a result of an increase in sales and marketing headcount from 205 as of December 31, 2012 to 262 as of December 31, 2013. The increase was also attributable to a $1.5 million increase in marketing and promotion costs associated with advertising and trade shows, as we increased our sales and marketing efforts to grow our revenue.

 

Research and Development

 

The increase in research and development expenses was primarily attributable to a $7.2 million increase in personnel and related costs, which includes a $5.8 million increase in employee compensation, a $0.5 million increase in bonuses and a $0.6 million increase in stock-based compensation, as a result of an increase in research and development headcount from 176 as of December 31, 2012 to 210 as of December 31, 2013, as we continued our efforts to develop new products and additional functionality for our existing products. The increase also reflected a $1.6 million increase in depreciation and allocated facilities and information technology infrastructure costs.

 

General and Administrative

 

The increase in general and administrative expenses was primarily attributable to higher professional services costs of $2.5 million, which related to increased general legal fees, audit fees, finance and accounting consulting fees, human resources and IT implementation services, in connection with scaling our organization to support increased business activity and preparing for an initial public offering. The increase was also attributable to a $1.8 million increase in personnel and related costs, including bonuses and stock-based compensation, and a $0.4 million increase in bad debt expense. Our general and administrative headcount increased from 36 as of December 31, 2012 to 46 as of December 31, 2013.

 

Litigation

 

The decrease in litigation expenses was primarily attributable to the $75.0 million legal settlement with Brocade in May 2013, which we recognized in the three months ended March 31, 2012. See the subsection titled “Basis of Presentation” for an explanation of why this expense was booked in the three months ended March 31, 2012. The decrease was offset by $3.4 million of legal expenses incurred in connection with the Radware litigation. The remaining change was primarily attributable to a decrease in professional legal service fees related to the Brocade litigation as a result of the settlement.

 

Interest Expense

 

     Year Ended
December 31,
 
         2012             2013      
     (In thousands)  

Interest expense

   $ (135   $ (1,495

 

Interest expense increased by $1.4 million due primarily to the $1.1 million in interest expense we incurred on an unsecured convertible promissory note we issued to Brocade in July 2013 in accordance with the terms of the settlement of the Brocade litigation. We repaid the note in full in September 2013. The increase was also attributable to interest expense and amortization of debt issuance cost totaling $0.3 million related to the draw down of $25.0 million of our revolving credit facility in September 2013, $5.0 million of which we repaid in December 2013.

 

59


Table of Contents

Interest Income and Other Income (Expense), Net

 

     Year Ended
December 31,
 
         2012             2013      
     (In thousands)  

Interest income and other income (expense), net

   $ (2,237   $ (2,118

 

Interest income and other income (expense), net changed by $0.1 million due primarily to an increase of $0.7 million in foreign currency exchange losses as a result of the Japanese Yen weakening against the U.S. Dollar offset by a decrease of $0.8 million non-cash expense related to a change in the value of convertible preferred stock warrants outstanding through their exercise or expiration in February 2013.

 

Provision for Income Taxes

 

     Year Ended
December 31,
 
         2012              2013      
     (In thousands)  

Provision for income taxes

   $ 758       $ 640   

 

The $0.1 million decrease in our provision for income taxes was attributable to a decrease in our provision for foreign income taxes.

 

Comparison of the Years Ended December 31, 2011 and 2012

 

Revenue

 

     Year Ended
December 31,
     Change  
     2011      2012      Amount     %  
     (In thousands, except percentages)  

Revenue:

          

Products

   $ 79,763       $ 99,891       $ 20,128        25.2

Services

     11,515         20,175         8,660        75.2
  

 

 

    

 

 

    

 

 

   

Total revenue

   $ 91,278       $ 120,066       $ 28,788        31.5
  

 

 

    

 

 

    

 

 

   

Revenue by geographic location:

          

United States

   $ 38,674       $ 43,389       $ 4,715        12.2

Japan

       37,504         58,653           21,149        56.4

Asia Pacific, excluding Japan

     8,679         10,315         1,636        18.9

EMEA

     4,812         6,469         1,657        34.4

Other

     1,609         1,240         (369     (22.9 )% 
  

 

 

    

 

 

    

 

 

   

Total revenue

   $ 91,278       $ 120,066       $ 28,788        31.5
  

 

 

    

 

 

    

 

 

   

 

Revenue growth from the year ended December 31, 2011 to the year ended December 31, 2012 reflects increased demand for our products and related services. The increase in products revenue was driven by increased sales of our products to existing and new customers. Japan contributed the largest portion of the revenue increase from 2011 to 2012, primarily due to a significant increase in sales by our distribution channel partners to large service providers, as they expanded their mobile network capacity to address current and anticipated growth in data traffic. The revenue growth in other geographic locations was primarily due to our continued investment in increasing the size of our sales force which increased by 30% during 2012, and the number of distribution channel partners in those regions. The increase in services revenue was related to the increase in PCS sales in connection with the increased unit sales of our hardware products, and the renewals of

 

60


Table of Contents

PCS on our installed customer base. The percentage increase in service revenue exceeds that of product revenue because service revenue is directly related to the installed base of product rather than the current year’s sales of product. Current year sales of product generate service revenue only after the date the unit is received by the customer.

 

Cost of Revenue, Gross Profit and Gross Margin

 

     Year Ended
December 31,
     Change  
     2011      2012      Amount      %  
     (In thousands, except percentages)  

Cost of revenue:

           

Products

   $ 16,442       $ 18,619       $   2,177         13.2%   

Services

     2,033         5,891           3,858         189.8%   
  

 

 

    

 

 

    

 

 

    

Total cost of revenue

   $ 18,475       $ 24,510       $ 6,035         32.7%   
  

 

 

    

 

 

    

 

 

    

 

     Year Ended
December 31,
       
     2011     2012     Change  
     Amount      Gross
Margin
    Amount      Gross
Margin
    Amount      Gross
Margin
 
     (In thousands, except percentages)  

Gross profit:

               

Products

   $ 63,321         79.4   $ 81,272         81.4   $ 17,951         2.0   

Services

     9,482         82.3     14,284         70.8     4,802         (11.5
  

 

 

      

 

 

      

 

 

    

Total gross profit

   $ 72,803         79.8   $ 95,556         79.6   $ 22,753         (0.2
  

 

 

      

 

 

      

 

 

    

 

The increase of 2.0 percentage points in products gross margin from the year ended December 31, 2011 to the year ended December 31, 2012 was primarily due to higher than historical gross margin in the six months ended December 31, 2012, related to higher than historical volumes coming from geographic regions with generally higher gross margins. The decrease of 11.5 percentage points in services gross margin was primarily a result of higher personnel and related costs for our service and support team, as we grew the team in anticipation of future growth.

 

Operating Expenses

 

     Year Ended
December  31,
     Change  
           2011                  2012            Amount      %  
     (In thousands, except percentages)  

Operating expenses:

           

Sales and marketing

   $   34,504       $ 51,323       $ 16,819         48.7

Research and development

     16,652         25,513         8,861         53.2

General and administrative

     3,110         10,225         7,115         228.8
  

 

 

    

 

 

    

 

 

    

Non-GAAP operating expenses excluding litigation

     54,266         87,061         32,795         60.4

Litigation

     9,524         95,515         85,991         N.M.   
  

 

 

    

 

 

    

 

 

    

Total operating expenses

   $ 63,790       $ 182,576       $ 118,786         186.2
  

 

 

    

 

 

    

 

 

    

 

Non-GAAP operating expenses, excluding litigation, is an important measure used by our management to evaluate our operating performance, develop future operating plans, and make strategic decisions related to the allocation of resources. In particular, the exclusion of litigation expenses facilitates comparison of our operating

 

61


Table of Contents

expenses on a period to period basis and with other companies. Accordingly, we believe the Non-GAAP operating expenses excluding litigation also may provide useful information to investors and others in understanding and evaluating our operating expenses in the same manner as our management.

 

Sales and Marketing

 

The increase in sales and marketing expenses was primarily attributable to a $13.0 million increase in personnel and related costs, which includes an $8.6 million increase in employee compensation, a $2.2 million increase in commission and bonus expenses, a $1.5 million increase in travel costs and a $0.6 million increase in stock-based compensation, as a result of an increase in sales and marketing headcount from 158 as of December 31, 2011 to 205 as of December 31, 2012. The change was also due to a $1.1 million increase in marketing and promotion costs related to trade shows and marketing development efforts, a $1.1 million increase in contractor expense and a $0.8 million increase in depreciation and allocated facilities and information technology infrastructure costs.

 

Research and Development

 

The increase in research and development expenses was primarily attributable to a $6.4 million increase in personnel and related costs, which includes a $5.7 million increase in employee compensation, a $0.4 million increase in bonuses and a $0.3 million increase in stock-based compensation, as a result of an increase in research and development headcount from 134 as of December 31, 2011 to 176 as of December 31, 2012 as we continued our efforts to develop new product and additional functionality for our existing products. The change was also due to a $1.3 million increase in depreciation and allocated facilities and information technology infrastructure expense.

 

General and Administrative

 

The increase in general and administrative expenses was primarily attributable to a $2.5 million increase in professional service fees related to outside audit, finance and accounting consulting, human resources and IT implementation services to support increased business activity. The change was also due to a $2.2 million increase in personnel and related costs, including bonuses and stock-based compensation, $0.9 million increase in depreciation and allocated facilities and information technology infrastructure expense, and a $0.6 million lease expense on the early termination of the lease on our former headquarters building. Our general and administrative headcount increased from 15 as of December 31, 2011 to 36 as of December 31, 2012.

 

Litigation

 

The increase of $86.0 million in litigation expenses was primarily attributable to litigation settlement expenses, including $75.0 million related to the Brocade litigation settlement, and a $10.1 million increase in professional legal service fees related to litigation defense costs primarily for the Brocade litigation. See the subsection titled “Basis of Presentation” for an explanation of why this expense was booked in the first quarter of 2012.

 

Interest Expense

 

     Year Ended
December 31,
 
         2011             2012      
     (In thousands)  

Interest expense

   $ (241   $ (135

 

Interest expense decreased by $0.1 million as a result of a $1.0 million decrease in the outstanding balance of a term loan between December 31, 2011 and 2012 due to scheduled principal repayments. This loan was paid in full in July 2013. During 2012, we drew down on a revolving line of credit periodically for short-term cash needs, but repaid each draw within a short period of time, thus incurring minimal interest expense.

 

62


Table of Contents

Interest Income and Other Income (Expense), Net

 

     Year Ended
December 31,
 
         2011             2012      
     (In thousands)  

Interest income and other income (expense), net

   $ (618   $ (2,237

 

Interest income and other income (expense), net changed by $1.6 million from 2011 to 2012 due to a $1.4 million increase in foreign currency exchange losses as a result of the weakening of the Japanese Yen against the U.S. Dollar and a $0.3 million increase in the non-cash expense related to a change in the value of then-outstanding convertible preferred stock warrants.

 

Provision for Income Taxes

 

     Year Ended
December 31,
 
         2011              2012      
     (In thousands)  

Provision for income taxes

   $ 850       $ 758   

 

The $0.1 million decrease in our provision for income taxes was primarily due to a lower provision for foreign income taxes.

 

63


Table of Contents

Quarterly Results of Operations

 

The following tables set forth our unaudited quarterly consolidated statement of operations data in dollars and as a percentage of our revenue for each of the last eight quarters in the period ended December 31, 2013. The unaudited quarterly consolidated statement of operations data below have been prepared on the same basis as the audited consolidated financial statements included elsewhere in this prospectus and, in our opinion, reflect all necessary adjustments, consisting only of normal recurring adjustments, necessary for a fair statement of this information. The results of historical quarters are not necessarily indicative of the results of operations for a full year or any future period.

 

     Three Months Ended  
     Mar. 31,
2012
    Jun. 30,
2012
    Sep. 30,
2012
    Dec. 31,
2012
    Mar. 31,
2013
    Jun. 30,
2013
    Sep. 30,
2013
    Dec. 31,
2013
 
     (In thousands)  

Revenue:

                

Products

   $ 22,241      $ 23,143      $ 26,070      $ 28,437      $ 23,269      $ 23,064      $ 32,263      $ 33,449   

Services

     4,089        4,937        5,248        5,901        6,312        7,067        7,563        8,751   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total revenue

     26,330        28,080        31,318        34,338        29,581        30,131        39,826        42,200   

Cost of revenue (1) :

                

Products

     4,616        4,655        4,715        4,633        4,906        4,894        6,669        8,815   

Services

     1,057        1,525        1,646        1,663        1,698        2,020        2,065        2,329   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total cost of revenue

     5,673        6,180        6,361        6,296        6,604        6,914        8,734        11,144   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     20,657        21,900        24,957        28,042        22,977        23,217        31,092        31,056   

Operating expenses (1) :

                

Sales and marketing

     10,743        12,908        12,634        15,038        15,589        15,723        18,276        21,168   

Research and development

     5,256        6,254        6,772        7,231        7,772        8,336        8,517        8,723   

General and administrative

     1,332        3,030        2,379        3,484        3,830        3,697        3,686        4,343   

Litigation

     80,463        6,602        6,040        2,410        3,404        4,800        1,683        1,638   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     97,794        28,794        27,825        28,163        30,595        32,556        32,162        35,872   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Loss from operations

     (77,137     (6,894     (2,868     (121     (7,618     (9,339     (1,070     (4,816

Other income (expense), net:

                

Interest expense

     (68     (23     (25     (19     (13     (33     (1,399     (50

Interest income and other income (expense), net

     (537     91        160        (1,951     (681     (683     (73     (681
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total other income (expense), net

     (605     68        135        (1,970     (694     (716     (1,472     (731
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Loss before provision for income taxes

     (77,742     (6,826     (2,733     (2,091     (8,312     (10,055     (2,542     (5,547

Provision for income taxes

     41        172        210        335        221        158        207        54   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net loss

   $ (77,783   $ (6,998   $ (2,943   $ (2,426   $ (8,533   $ (10,213   $ (2,749   $ (5,601
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Other Financial Data :

                

Adjusted EBITDA (loss)

   $ 3,746      $ 1,727      $ 5,255      $ 4,382      $ (2,425   $ (2,412   $ 1,963      $ (1,290
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

64


Table of Contents
     Three Months Ended  
     Mar. 31,
2012
    Jun. 30,
2012
    Sep. 30,
2012
    Dec. 31,
2012
    Mar. 31,
2013
    Jun. 30,
2013
    Sep. 30,
2013
    Dec. 31,
2013
 
     (As a % of total revenue)  

Revenue:

                

Products

     84.5  %      82.4  %      83.2  %      82.8  %      78.7  %      76.5  %      81.0  %      79.3 

Services

     15.5  %      17.6  %      16.8  %      17.2  %      21.3  %      23.5  %      19.0  %      20.7 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total revenue

     100.0  %      100.0  %      100.0  %      100.0  %      100.0  %      100.0  %      100.0  %      100.0 

Cost of revenue (1) :

                

Products

     17.5  %      16.6  %      15.0  %      13.5  %      16.6  %      16.2  %      16.7  %      20.9 

Services

     4.0  %      5.4  %      5.3  %      4.8  %      5.7  %      6.7  %      5.2  %      5.5 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total cost of revenue

     21.5  %      22.0  %      20.3  %      18.3  %      22.3  %      22.9  %      21.9  %      26.4 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     78.5  %      78.0  %      79.7  %      81.7  %      77.7  %      77.1  %      78.1  %      73.6 

Operating expenses (1) :

                

Sales and marketing

     40.8  %      46.0  %      40.3  %      43.8  %      52.7  %      52.2  %      45.9  %      50.2 

Research and development

     20.0  %      22.3  %      21.6  %      21.1  %      26.4  %      27.7  %      21.5  %      20.7 

General and administrative

     5.1  %      10.8  %      7.6  %      10.1  %      12.9  %      12.3  %      9.3  %      10.3 

Litigation

     305.5  %      23.4  %      19.3  %      7.0  %      11.5  %      15.9  %      4.2  %      3.9 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     371.4  %      102.5  %      88.8  %      82.0  %      103.5  %      108.1  %      80.9  %      85.1 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Loss from operations

     (292.9 )%      (24.5 )%      (9.1 )%      (0.3 )%      (25.8 )%      (31.0 )%      (2.8 )%      (11.5 )% 

Other income (expense), net:

                

Interest expense

     (0.3 )%      (0.1 )%      (0.1 )%      (0.1 )%             (0.1 )%      (3.4 )%      (0.1 )% 

Interest income and other income (expense), net

     (2.0 )%      0.3  %      0.5  %      (5.7 )%      (2.3 )%      (2.3 )%      (0.2 )%      (1.6 )% 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total other income (expense), net

     (2.3 )%      0.2  %      0.4  %      (5.8 )%      (2.3 )%      (2.4 )%      (3.6 )%      (1.7 )% 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Loss before provision for income taxes

     (295.2 )%      (24.3 )%      (8.7 )%      (6.1 )%      (28.1 )%      (33.4 )%      (6.4 )%      (13.2 )% 

Provision for income taxes

     0.2  %      0.6  %      0.7  %      1.0  %      0.7  %      0.5  %      0.5  %      0.1
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net loss

     (295.4 )%      (24.9 )%      (9.4 )%      (7.1 )%      (28.8 )%      (33.9 )%      (6.9 )%      (13.3 )% 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1)   Results above include stock-based compensation expense as follows:

 

     Three Months Ended  
     Mar. 31,
2012
     Jun. 30,
2012
     Sep. 30,
2012
     Dec. 31,
2012
     Mar. 31,
2013
     Jun. 30,
2013
     Sep. 30,
2013
     Dec. 31,
2013
 
     (In thousands)  

Cost of revenue

   $ 17       $ 21       $ 23       $ 26       $ 32       $ 32       $ 47       $ 51   

Sales and marketing

     272         353         346         345         474         470         598         686   

Research and development

     169         181         217         209         261         268         374         453   

General and administrative

     78         112         91         80         96         94         134         212   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total stock-based compensation expense

   $ 536       $ 667       $ 677       $ 660       $ 863       $ 864       $ 1,153       $ 1,402   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

65


Table of Contents

Quarterly Trends

 

Quarterly Revenue Trends

 

Quarterly products revenue increased year-over-year for 2013 compared to 2012, except for the second quarter. For the three months ended June 30, 2013, our products revenue decreased slightly compared to the three months ended June 30, 2012. As discussed above, we believe the uncertainty created in our market by the Brocade litigation, and the injunctions outstanding during the first two quarters of 2013 affected our customers’ buying behavior. We entered into a settlement agreement regarding the Brocade matter in May 2013. The year-over-year and sequential growth in services revenue was primarily driven by higher product sales and the resulting expansion of our customer base.

 

Quarterly Gross Profit and Gross Margin Trends

 

Total gross profit increased year over year for each quarter presented. Total gross margin percent has remained relatively consistent over most periods presented, ranging from 77% to 78%, with the exception of the third and fourth quarters of 2012 where gross margin was 80% and 82% due to higher than normal historical volumes coming from geographic regions with generally higher gross margins and the fourth quarter of 2013 where gross margin was 74% due primarily to geographical mix and selling some end-of-life product at low margins. In addition, demand for certain new Thunder models exceeded our expectations and inventory levels on these new Thunder models were constrained. In one transaction, in order to satisfy a customer’s need, a high-end model with a higher cost per unit was substituted for an out-of-stock new Thunder model at a lower than typical price resulting in a lower gross margin on the transaction. We do not expect these specific factors to negatively impact future quarters to the same degree although there can be no assurances that similar occurrences may not happen in the future.

 

Quarterly Operating Expense Trends

 

Our quarterly operating expenses increased sequentially for all periods presented, primarily due to the addition of personnel in connection with the growth of our business ahead of current needs. Research and development expenses increased due to new product development and the development of additional functionality for our existing products. Sequential growth in sales and marketing expenses has been primarily due to increased personnel and related costs related to the expansion of our worldwide sales teams and increased marketing expenses. General and administrative expenses increased due to higher personnel and related costs and, in recent quarters, an increase in professional service fees related to preparing to be a public company. Litigation expenses increased in the three months ended March 31, 2012 due to the $75.0 million legal settlement with Brocade in May 2013, which we recognized in the three months ended March 31, 2012. We also incurred significant defense costs for the Brocade litigation from the first quarter of 2012 through the second quarter of 2013.

 

66


Table of Contents

Quarterly Reconciliation of Net Loss to Adjusted EBITDA (Loss)

 

The following table sets forth a reconciliation of net loss to Adjusted EBITDA (loss) for each of the eight quarters ended December 31, 2013. Please see “Selected Consolidated Financial Data—Adjusted EBITDA” for more information.

 

     Three Months Ended  
     Mar. 31,
2012
    Jun. 30,
2012
    Sep. 30,
2012
    Dec. 31,
2012
    Mar. 31,
2013
    Jun. 30,
2013
    Sep. 30,
2013
    Dec. 31,
2013
 
     (In thousands)  

Reconciliation of Adjusted EBITDA:

                

Net loss

   $ (77,783   $ (6,998   $ (2,943   $ (2,426   $ (8,533   $ (10,213   $ (2,749   $ (5,601

Brocade litigation

     79,358        6,523        6,033        2,382        2,954        4,311        8        44   

Interest expense

     68        23        25        19        13        33        1,399        50   

Interest income and other (income) expense, net

     537        (91     (160     1,951        681        683        73        681   

Stock-based compensation

     536        667        677        660        863        864        1,153        1,402   

Depreciation and amortization

     989        1,431        1,413        1,461        1,376        1,752        1,872        2,080   

Provision for income taxes

     41        172        210        335        221        158        207        54   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Adjusted EBITDA (loss)

   $ 3,746      $ 1,727      $ 5,255      $ 4,382      $ (2,425   $ (2,412   $ 1,963      $ (1,290
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

The exclusion of certain expenses, primarily the Brocade litigation settlement and associated litigation fees and expenses, in calculating Adjusted EBITDA facilitates operating performance comparisons on a period-to-period basis. Accordingly, we believe that Adjusted EBITDA provides useful information to investors and others in understanding and evaluating our operating results in the same manner as our management and board of directors.

 

Liquidity and Capital Resources

 

Since our inception, we have financed our operations primarily through private placements of our convertible preferred stock, debt financings and cash flows derived from the sale of our products and PCS contracts. As of December 31, 2013, cash and cash equivalents were $20.8 million, including $1.0 million held outside the United States in our foreign subsidiaries. We currently do not have any plans to repatriate our earnings from our foreign operations.

 

As of December 31, 2013, we had working capital of $15.1 million, an accumulated deficit of $147.1 million and a total stockholders’ deficit of $134.9 million.

 

As of December 31, 2013, we had outstanding borrowings of $20.0 million under our credit facility.

 

In June and September 2013, we raised aggregate gross proceeds of $80.0 million through the sale of our Series D redeemable convertible preferred stock.

 

One of the principal purposes of this offering is to obtain additional capital to fund the growth of our business. However, we believe that our current cash and cash equivalents, and the amounts available under our credit facility and our cash flows derived from operations will be sufficient to meet our anticipated cash needs for working capital, capital expenditures, and our growth strategies for at least the next 12 months. Based on our

 

67


Table of Contents

current operating assumptions, we estimate that we will use between $20.0 million and $30.0 million of our net proceeds from this offering to fully implement our growth strategies described in this prospectus. The exact amount of net proceeds we use to fund our growth plans, however, will depend on the amount of cash generated from our operations and any strategic decisions we may make that could alter our expansion plans and the amount of cash necessary to fund these plans. Our future capital requirements will depend on many factors, including our results of operations, possible acquisitions and the expansion of our research and development, sales and marketing and general and administrative functions. In the event that we require additional financing from outside sources, we may not be able to raise it on terms acceptable to us or at all. If we are unable to raise additional capital when we need it, our business, operating results and financial condition would be adversely affected. The sale of additional equity could result in additional dilution to our stockholders. If we raise additional funds by obtaining loans from third parties, the terms of those financing arrangements may include negative covenants or other restrictions on our business that could impair our operating flexibility, and would also require us to incur interest expense. We can provide no assurance that additional financing will be available at all or, if available, that we would be able to obtain financing on terms favorable to us.

 

As we invest in the growth of our business, we expect to incur a total of $10.0 million in capital expenditures over the next 12 months due to recurring investments in computer hardware and software. In addition, as described in the section “Business—Litigation,” we are currently involved in ongoing litigation related to our intellectual property. Any adverse settlements or judgments in any of this litigation could have a material adverse impact on our results of operations, cash balances and cash flows in the period in which such events occur.

 

Credit Agreement

 

In September 2013, we entered into a credit agreement with Royal Bank of Canada, acting as administrative agent and lender, and JPMorgan Chase Bank, N.A. and Bank of America, N.A. as lenders. The credit agreement provides a three year $35.0 million revolving credit facility, which includes a maximum $10.0 million letter of credit facility. As of December 31, 2013, we had outstanding borrowings under the revolving credit facility of $20.0 million. The revolving credit facility matures on September 30, 2016.

 

The revolving credit facility bears interest at a rate per annum based on either, at our election, (i) an alternate base rate plus a margin ranging from 1.75% to 2.50% depending on our total leverage ratio, or (ii) the London interbank offered rate, or LIBOR, based on one, two, three or six month interest periods plus a margin ranging from 2.75% to 3.50% depending on our total leverage ratio. The alternate base rate is equal to the greatest of (i) the Royal Bank of Canada’s prime rate, (ii) the federal funds rate plus a margin equal to 0.50% and (iii) the Eurodollar rate for a one month interest period plus a margin equal to 1.00%. Our interest rate as of December 31, 2013 was 3.85% per annum. Interest expense is paid quarterly. We are also required to pay quarterly facility fees of 0.45% per annum on the average daily unused portion of the revolving credit facility. We may prepay the loans or terminate or reduce the commitments at any time, without premium or penalty.

 

Our obligations under the credit agreement are secured by a security interest on substantially all of our assets, including our intellectual property. The credit agreement contains customary non-financial covenants, and also requires us to comply with financial covenants. One financial covenant requires us to maintain a total leverage ratio, which is defined as total consolidated debt to trailing Adjusted EBITDA (defined as earnings before interest expense, tax expense, depreciation, amortization and stock-based compensation, adjusted for certain other non-cash or non-recurring income or expenses such as specified litigation settlement payments and litigation expenses). In addition, we must maintain a minimum amount of liquidity based on our unrestricted cash and availability under the revolving credit facility. The covenant requires us to maintain a minimum liquidity of $25.0 million provided that at least $10 million of liquidity comprises of unrestricted cash. The credit agreement includes customary events of default which, if triggered, could result in the acceleration of our obligations under the revolving credit facility, the termination of any obligation by the lenders to extend further credit and a process for the lenders to obtain title to collateral granted to them as security under the credit agreement; however, we also have the ability, in certain instances, to cure non-compliance with the financial covenants

 

68


Table of Contents

through qualified equity contributions by certain holders of our equity. As of December 31, 2013, we were not in compliance with the total leverage ratio covenant under the credit agreement, which resulted in us receiving a waiver from the lenders, however we will not be able to borrow additional funds under the credit facility until we are back in compliance with this covenant.

 

Cash Flows

 

The following table summarizes our cash flows for the periods presented:

 

     Year Ended
December  31,
 
     2011     2012     2013  
     (In thousands)  

Net cash provided by (used in) operating activities

   $ 18,506      $ 3,213      $ (25,133

Net cash used in investing activities

     (4,731     (4,241     (2,993

Net cash provided by (used in) financing activities

     (1,604     5,847        25,052   
  

 

 

   

 

 

   

 

 

 

Net increase (decrease) in cash and cash equivalents

   $ 12,171      $ 4,819      $ (3,074
  

 

 

   

 

 

   

 

 

 

 

Cash Flows from Operating Activities

 

Our cash provided by operating activities is driven primarily by sales of our products and, to a lesser extent, by up-front payments from end-customers under PCS contracts. Our primary uses of cash from operating activities have been for personnel-related expenditures, litigation expenses, manufacturing costs, marketing and promotional expenses and costs related to our facilities. Our cash flows from operating activities will continue to be affected principally by the extent to which we increase spending on personnel and sales and marketing activities, our working capital requirements, and litigation expenses.

 

During the year ended December 31, 2013, cash used in operating activities was $25.1 million, consisting of a net loss of $27.1 million and a $11.1 million decrease in net operating assets and liabilities offset by non-cash charges of $13.1 million. Our non-cash charges consisted of depreciation and amortization of $7.1 million, stock-based compensation of $4.3 million, and provision for doubtful accounts and sales returns of $1.8 million. The change in our net operating assets and liabilities was due primarily to a $15.5 million increase in accounts receivable and a $8.5 million increase in inventory associated with the growth in our business combined with a $6.8 million decrease in accrued litigation expenses due to the payment of the legal fees as a result of settling the Brocade litigation. These changes were offset by a $13.5 million increase in deferred revenue due to increased sales of our PCS contracts, a $2.1 million increase in accrued liabilities attributable to higher accrued personnel costs due to growth in headcount and accrued tax liabilities, a $2.5 million increase in accounts payable due to the growth in our business activities, and a $1.6 million decrease in prepaid expenses and other assets due to a decrease in prepaid state income taxes receivable.

 

During the year ended December 31, 2012, cash provided by operating activities was $3.2 million, consisting of a net loss of $90.2 million offset by non-cash charges of $10.2 million and an $83.0 million increase in our net operating assets and liabilities. Our non-cash charges consisted of depreciation and amortization of $5.3 million, stock-based compensation of $2.5 million, provision for doubtful accounts and sales returns of $1.3 million and the change in fair value of our convertible preferred stock warrant liability of $0.8 million. The change in our net operating assets and liabilities was due primarily to the $83.6 million increase in accrued litigation expenses attributable to the $75.0 million Brocade settlement, a $9.7 million increase in deferred revenue due to increased sales of our PCS contracts and a $6.5 million increase in accrued liabilities attributable to higher accrued personnel costs due to growth in headcount and accrued tax liabilities. These changes were offset by a $9.1 million increase in inventory and a $7.3 million increase in accounts receivable associated with the growth in our business along with a $2.6 million increase in prepaid expenses and other assets due to an increase in VAT and state income taxes receivable.

 

During the year ended December 31, 2011, cash provided by operating activities was $18.5 million, consisting of net income of $7.3 million, aggregate non-cash charges of $6.3 million and a net change in our net

 

69


Table of Contents

operating assets and liabilities of $4.9 million. Our non-cash charges consisted of depreciation and amortization of $3.4 million, stock-based compensation of $1.5 million, provision for doubtful accounts and sales returns of $1.1 million, and the change in fair value of our convertible preferred stock warrant liability of $0.5 million. The change in our net operating assets and liabilities was the result of an increase of $4.8 million in accrued legal expenses due to professional legal services related to ongoing litigation, a $2.2 million increase in accrued liabilities attributable to higher accrued personnel costs due to growth in headcount and an increase in accrued tax liabilities and a $3.6 million increase in deferred revenue due to increased sales of our PCS contracts. These changes were offset by a $5.9 million increase in inventory due to the growth in our business.

 

Cash Flows from Investing Activities

 

During the year ended December 31, 2013, cash used in investing activities was $3.0 million primarily for purchases of equipment.

 

During the year ended December 31, 2012, cash used in investing activities was $4.2 million for purchases of equipment and software.

 

During the year ended December 31, 2011, cash used in investing activities was $4.7 million, consisting of $3.3 million in purchases of equipment and leasehold improvements and $1.4 million for the purchase of certain patents to complement our existing network solutions and technology patents.

 

Cash Flows from Financing Activities

 

During the year ended December 31, 2013, cash provided by financing activities was $25.1 million, consisting of $79.4 million in aggregate net proceeds from the issuance of our Series D redeemable convertible preferred stock to outside investors, a net $14.0 million in borrowings from our revolving credit facility, $0.8 million in proceeds from the exercise of our Series C convertible preferred stock warrants and $2.4 million in proceeds from the exercise of stock options, net of repurchases of common stock, offset by a $70.0 million repayment of a promissory note. During 2013, we drew down on our revolving credit facility with Silicon Valley Bank, or SVB, periodically for short-term cash needs, repaying within a short period of time. The outstanding borrowings of $5.0 million on our revolving credit facility and $0.6 million on our term loan with SVB were repaid when the loan and security agreement matured. We also made $0.3 million in repayments on our capital lease obligations. In July 2013, in conjunction with our litigation settlement with Brocade, we entered into a convertible promissory note with Brocade for $70.0 million, which we repaid in September 2013. In addition, we entered into a credit agreement with other lenders in September 2013. We drew down $25.0 million on the credit agreement in September 2013 and repaid $5.0 million in December 2013.

 

During the year ended December 31, 2012, cash provided by financing activities was $5.8 million, consisting of $15.0 million in proceeds from our revolving credit facility offset by $10.0 million and $1.0 million in repayments on outstanding borrowings on our revolving credit facility and term loan with SVB. We also received $0.8 million in proceeds from borrowings under a capital lease for equipment, on which we made $0.2 million in repayments on it during 2012. We also received $1.3 million in proceeds from the exercise of stock options, net of repurchases of common stock.

 

During the year ended December 31, 2011, cash used in financing activities was $1.6 million, consisting of $2.1 million and $1.0 million in repayments on our outstanding borrowings on our revolving credit facility and term loan with SVB offset by $0.5 million in proceeds from our revolving credit facility and $0.9 million in proceeds from the exercise of stock options, net of repurchases of common stock.

 

Contractual Obligations

 

Our contractual commitments will have an impact on our future liquidity. Our contractual obligations represent material expected or contractually committed future obligations with terms in excess of one year. We

 

70


Table of Contents

believe that we will be able to fund these obligations through cash generated from operations and from our existing cash balances.

 

The following table summarizes our contractual obligations as of December 31, 2013.

 

     Payments Due by Period  
     Total      Less than
1 Year
     1 to 3
Years
     3 to 5
Years
     More than
5 Years
 
     (In thousands)  

Operating lease obligations

   $ 10,246       $ 2,087       $   3,323       $ 3,001       $ 1,835   

Technology licensing arrangement

     840         140         280         280         140   

Capital lease obligations

     286         286                           

Principal payments on revolving credit facility

     20,000                 20,000                   

Interest and fees on our revolving credit facility (1)

     2,120         771         1,349                   

Redeemable convertible preferred stock (2)

     112,879                                 112,879   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 146,371       $ 3,284       $ 24,952       $ 3,281       $ 114,854   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

The contractual obligation table above excludes tax liabilities of $0.1 million related to uncertain tax positions because we are unable to make a reasonably reliable estimate of the timing of settlement, if any, of these future payments.

 

(1)   Represents our estimated interest expense on our outstanding revolving credit facility as of December 31, 2013 based on the interest rates in effect on December 31, 2013. Upon the completion of this offering, we will be required to pay a contingent payment of $0.3 million to a lender. As we are unable to reliably estimate the timing of future payments related to this contingent obligation, they have been excluded from the preceding table.
(2)   The Series D redeemable convertible preferred stock will automatically convert into common stock upon completion of this offering. See Note 8 to our consolidated financial statements appearing elsewhere in this prospectus.

 

Off-Balance Sheet Arrangements

 

As of December 31, 2013, we did not have any relationships with any unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities that would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes.

 

Quantitative and Qualitative Disclosures About Market Risk

 

We are exposed to market risk in the ordinary course of our business. Market risk represents the risk of loss that may impact our financial position due to adverse changes in financial market prices and rates. Our market risk exposure is primarily a result of fluctuations in foreign currency exchange rates and interest rates. As of December 31, 2013, we do not hold or issue financial instruments for trading purposes.

 

Foreign Currency Risk

 

Our consolidated results of operations and cash flows are subject to fluctuations due to changes in foreign currency exchange rates. Historically, the majority of our revenue contracts are denominated in U.S. Dollars, with the most significant exception being Japan where we invoice primarily in Yen. Our expenses are generally denominated in the currencies in which our operations are located, which is primarily in North America, Japan and to a lesser extent EMEA and the Asia Pacific region. To date, we have not entered into any hedging arrangements with respect to foreign currency risk or other derivative instruments. Revenue resulting from selling in local currencies and costs incurred in local currencies are exposed to foreign currency exchange rate fluctuations which can affect our operating income. As exchange rates vary, operating income may differ from expectations. The effect of a hypothetical 10% change in our exchange rate for the year ended December 31, 2013 would not have a significant impact on our operating loss.

 

71


Table of Contents

Interest Rate Sensitivity

 

Our exposure to market risk for changes in interest rates relates primarily to our cash and cash equivalents and our indebtedness. Our cash and cash equivalents are held in cash deposits, and money market funds with maturities of less than 90 days from the date of purchase. Our primary exposure to market risk is interest income sensitivity, which is affected by changes in the general level of the interest rates in the United States. However, because of the short-term nature of the instruments in our portfolio, a sudden change in market interest rates would not be expected to have a material impact on our consolidated financial statements.

 

Our total outstanding borrowings under the credit agreement were $20.0 million as of December 31, 2013. Our exposure to interest rates relates to the change in the amounts of interest we must pay on our borrowings. The effect of a hypothetical 10% change in our interest rate for the year ended December 31, 2013 would not have a significant impact on our interest expense.

 

JOBS Act Accounting Election

 

We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. Under the JOBS Act, emerging growth companies can delay adopting new or revised accounting standards issued subsequent to the enactment of the JOBS Act until such time as those standards apply to private companies. We have irrevocably elected not to avail ourselves of this exemption from new or revised accounting standards, and, therefore, will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.

 

Critical Accounting Policies and Estimates

 

Our consolidated financial statements are prepared in accordance with generally accepted accounting principles in the United States and include our accounts and the accounts of our wholly-owned subsidiaries. The preparation of these consolidated financial statements requires our management to make estimates, assumptions and judgments that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenue and expenses during the applicable periods. We base our estimates, assumptions and judgments on historical experience and on various other factors that we believe to be reasonable under the circumstances. Different assumptions and judgments would change the estimates used in the preparation of our consolidated financial statements, which, in turn, could change the results from those reported. We evaluate our estimates, assumptions and judgments on an ongoing basis.

 

The critical accounting estimates, assumptions and judgments that we believe have the most significant impact on our consolidated financial statements are described below.

 

Allowance for Doubtful Accounts

 

We maintain an allowance for doubtful accounts for estimated losses in the collection of accounts receivable. We make estimates regarding the future ability of our customers to make required payments based on historical credit experience and expected future trends. If actual customer financial conditions are less favorable than projected by management, additional accounts receivable write offs may be necessary, which could unfavorably affect future operating results.

 

Revenue Recognition

 

We derive revenue from two sources: (i) products revenue, which includes hardware and perpetual software license revenue and (ii) services revenue, which includes post contract support, PCS, professional services and training. Substantially all of our revenues are from sales of our products and services through distribution channel partners, such as resellers and distributors. Revenue is recognized, net of taxes, when all of the following criteria are met: persuasive evidence of an arrangement exists, delivery or performance has occurred, the sales price is fixed or determinable and collection is reasonably assured.

 

72


Table of Contents

We define each of the four criteria above as follows:

 

   

Persuasive evidence of an arrangement exists . Evidence of an arrangement consists of a purchase order issued pursuant to the terms and conditions of a master sales agreement.

 

   

Delivery or performance has occurred . We use shipping documents or written evidence of customer acceptance, when applicable, to verify delivery or performance. We recognize product revenue upon transfer of title and risk of loss, which primarily is upon shipment to customers. We do not have significant obligations for future performance, such as customer acceptance provisions, rights of return, or pricing credits, associated with our sales.

 

   

The sales price is fixed or determinable . We assess whether the sales price is fixed or determinable based on payment terms and whether the sales price is subject to refund or adjustment. Standard payment terms to customers range from 30 to 90 days.

 

   

Collection is reasonably assured . We assess probability of collection on a customer-by-customer basis. Our customers are subjected to a credit review process that evaluates their financial condition and ability to pay for products and services.

 

PCS revenue includes arrangements for software support and technical support for our products. PCS is offered under renewable, fee-based contracts, which include technical support, hardware repair and replacement parts, bug fixes, patches and unspecified upgrades on a when-and-if-available basis. Revenue for PCS services is recognized on a straight-line basis over the service contract term, which is typically one to five years. Unearned PCS revenue is included in deferred revenue.

 

Professional service revenue primarily consists of the fees we earn related to installation and consulting services. We recognize revenue from professional services upon delivery or completion of performance. Professional service arrangements are typically short term in nature and are largely completed within 30 to 90 days from the start of service.

 

Multiple-Element Arrangements

 

Our hardware with the embedded software (which is a proprietary operating system that together with the hardware delivers the functionality desired by our customers), is considered a separate unit of accounting from PCS because they have value to the customer on a standalone basis and our revenue arrangements do not include a right of return for delivered products. For multiple-element arrangements, we allocate revenue to each unit of accounting based on an estimated selling price at the inception of the arrangement. The total arrangement consideration is allocated to each separate unit of accounting using the relative selling price method. We limit the amount of revenue recognized for delivered elements to an amount that is not contingent upon future delivery of additional products or service.

 

When applying the relative selling price method, we determine the selling price for each element using (i) vendor-specific objective evidence, or VSOE, of selling price, if available; (ii) third-party evidence, or TPE, of selling price, if VSOE is not available; and (iii) best estimate of selling price, or BESP, if neither VSOE nor TPE is available.

 

   

VSOE . We determine VSOE based on our historical pricing and discounting practices for the specific products and services when sold separately. In determining VSOE, we require that a substantial majority of the stand-alone selling prices fall within a reasonably narrow pricing range.

 

   

TPE . When VSOE cannot be established for deliverables in multiple-element arrangements, we apply judgment with respect to whether we can establish a selling price based on TPE. TPE is determined based on competitor prices for interchangeable products or services when sold separately to similarly situated customers. However, as our products contain a significant element of proprietary technology and our solutions offer substantially different features and functionality, the comparable pricing of products with similar functionality typically cannot be obtained. Additionally, as we are unable to reliably determine what competitors products’ selling prices are on a stand-alone basis, we are not typically able to determine TPE.

 

73


Table of Contents
   

BESP . When we are unable to establish selling price using VSOE or TPE, we use BESP in our allocation of arrangement consideration. The objective of BESP is to determine the price at which we would transact a sale if the product or service was sold regularly on a stand-alone basis. As we have not been able to establish VSOE or TPE for our products and some of our services, we determine BESP for the purposes of allocating the arrangement, primarily based on historical transaction pricing. Historical transactions are segregated based on our pricing model and go-to-market strategy, which include factors such as the geographies in which our products and services were sold (domestic or international), offering type (product series, and level of support for PCS) and type of sales channel. The determination of BESP is made through consultation with and approval by management.

 

We may occasionally accept returns to address customer satisfaction issues or solution-fit issues even though there is no contractual provision for such returns. We estimate returns for sales to customers based on historical returns rates applied against current-period gross revenues. Specific customer returns and allowances are considered within this estimate. Management also analyzes changes in customer demand and acceptance of products when evaluating the adequacy of returns and sales allowances.

 

Inventory Valuation

 

Inventory consists primarily of finished goods and component parts to be used in the manufacturing process and is stated at lower of average cost or market. A provision is recorded when inventory is determined to be in excess of anticipated demand or obsolete, to adjust inventory to its estimated realizable value. Significant judgment is used in establishing our forecasts of future demand and obsolete material exposures. If the actual component usage and product demand are significantly lower than forecast, which may be caused by factors within and outside of our control, or if there were a higher incidence of inventory obsolescence because of rapidly changing technology and our customer requirements, we may be required to increase our inventory write-downs. We incurred inventory write downs of $2.4 million, $3.3 million and $2.6 million for the years ended December 31, 2011, 2012 and 2013.

 

Legal Proceedings

 

We have been and are currently involved in various legal proceedings, the outcomes of which are not within our complete control or may not be known for prolonged periods of time. Management is required to assess the probability of loss and amount of such loss, if any, in preparing our consolidated financial statements. We evaluate the likelihood of a potential loss from legal proceedings to which we are a party. We record a liability for such claims when a loss is deemed probable and the amount can be reasonably estimated. Significant judgment may be required in the determination of both probability and whether an exposure is reasonably estimable. Our judgments are subjective based on the status of the legal proceedings, the merits of our defenses and consultation with in-house and outside legal counsel. As additional information becomes available, we reassess the potential liability related to pending claims and may revise our estimates. Due to the inherent uncertainties of the legal processes in the multiple jurisdictions in which we operate, our judgments may be materially different than the actual outcomes, which could have material adverse effects on our business, financial conditions and results of operations.

 

Stock-Based Compensation

 

The fair value of the common stock underlying our stock options was determined by our board of directors, which intended all options granted to be exercisable at a price per share not less than the per share fair value of our common stock underlying those options on the date of grant. The valuations of our common stock were determined in accordance with the guidelines outlined in the American Institute of Certified Public Accountants Practice Aid, Valuation of Privately-Held-Company Equity Securities Issued as Compensation. The assumptions we use in the valuation model are based on future expectations combined with management judgment. Under the fair value recognition provisions of this guidance, stock-based compensation is measured at the grant date based on the fair value of the award and is recognized as expense, net of estimated forfeitures, over the requisite service

 

74


Table of Contents

period, which is generally the vesting period of the award. Determining the fair value of stock-based awards at the grant date represent management’s best estimates, but the estimates involve inherent uncertainties and the application of management’s judgment. We use the Black-Scholes option pricing model to determine the fair value of stock options. The determination of the grant date fair value of options using an option pricing model is affected by our estimated common stock fair value as well as assumptions regarding a number of other complex and subjective variables. These variables include the fair value of our common stock, our expected stock price volatility over the expected term of the options, stock option exercise and cancellation behaviors, risk-free interest rates and expected dividends, which are estimated as follows:

 

   

Fair Value of Our Common Stock . Because our stock is not publicly traded, we must estimate the fair value of our common stock, as discussed in “Common Stock Valuations” below.

 

   

Expected Term . The expected term was estimated using the simplified method allowed under SEC guidance.

 

   

Volatility . Since we do not have a trading history of our common stock, the expected volatility was derived from the average historical stock volatilities of several unrelated public companies within our industry that we consider to be comparable to our business over a period equivalent to the expected term of the stock option grants.

 

   

Risk-free Rate . The risk-free interest rate is based on the yields of U.S. Treasury securities with maturities similar to the expected term of the options for each option group.

 

   

Dividend Yield . We have never declared or paid any cash dividends and do not presently plan to pay cash dividends in the foreseeable future. Consequently, we used an expected dividend yield of zero.

 

If any of the assumptions used in the Black-Scholes model change significantly, stock-based compensation for future awards may differ materially compared with the awards granted previously.

 

The estimated grant-date fair value of all our stock-based awards was calculated based on the assumptions given in the table below:

 

     Year Ended
December 31,
 
     2011     2012     2013  

Expected term (in years)

     6.08        6.08        6.02 – 6.08   

Risk-free interest rate

     1.35% – 2.35     0.82% – 1.10     1.12% – 1.76

Expected volatility

     44.0% – 46.0     46.0     45.0% – 47.0

Dividend rate

            

 

We will continue to use judgment in evaluating the expected term, expected volatility and forfeiture rate related to our stock-based compensation calculations on a prospective basis. As we continue to accumulate additional data related to our common stock, we may make refinements to the estimates of our expected terms, expected volatility and forfeiture rates that could materially impact our future stock-based compensation.

 

Significant Factors, Assumptions and Methodologies Used in Determining Fair Value of Common Stock

 

The fair value of the common stock underlying stock options was approved by our board of directors, which intended all options granted to have an exercise price per share equal to the per-share fair value of the common stock underlying those options on the date of grant. In the absence of a public trading market, the board of directors, with input from management, exercised significant judgment and considered numerous objective and subjective factors to determine the fair value of our common stock as of the date of each option grant, including the following factors:

 

   

contemporaneous valuation performed by an unrelated third-party specialist;

 

   

sales by the company of preferred stock to outside investors in arm’s-length transactions;

 

   

the prices, rights, preferences and privileges of the company’s preferred stock relative to the common stock;

 

75


Table of Contents
   

our operating and financial performance and forecasts;

 

   

litigation matters;

 

   

the market performance of comparable publicly traded technology companies;

 

   

the introduction by us of new products or services;

 

   

the likelihood of achieving a liquidity event for the shares of common stock underlying these stock options, such as an initial public offering or sale of our company, given prevailing market conditions;

 

   

adjustments necessary to recognize a lack of marketability for our common stock;

 

   

the U.S. and global capital market conditions; and

 

   

other changes in the company since the last time the board of directors had approved option grants and made a determination of fair value.

 

The independent valuations were just one factor used by our Board to assist with the valuation of the common stock. In determining a fair value for our common stock, we considered two valuation approaches to determine the aggregate enterprise value of our business, an income approach and a market approach.

 

The income approach estimates our enterprise value on the basis of the estimated present value of our projected future cash flows. These future cash flows are discounted to their present values using a discount rate derived from an analysis of the cost of capital of comparable publicly traded companies in our industry or similar lines of business as of each valuation date and this discount rate is adjusted to reflect the risks inherent in our cash flows.

 

The market approach estimates our enterprise value by applying market multiples of our comparable industry peer companies based on key metrics inferred from the enterprise values of our comparable industry peer companies. In applying the market approach, we primarily utilized the revenue multiples of our comparable industry peer companies to derive the aggregate equity value of our company. We believed that using a revenue multiple to estimate our aggregate equity value, as opposed to an earnings or cash flow multiple, was appropriate given our significant focus on investing in and growing our business and because our comparable industry peer companies were in various stages of growth and investment.

 

When considering which companies to include in our comparable industry peer companies, we focused on U.S. based publicly traded companies in the industry in which we operate. The selection of our comparable industry peer companies required us to make judgments regarding the comparability of these companies to us. We considered a number of factors, including business description, business size, business model, revenue model and historical operating results. We then analyzed the business and financial profiles of the selected companies for relative similarity to us, and, based on this assessment, we selected our comparable industry peer companies.

 

The selection of our comparable public company industry peers has changed over time based upon our continuing evaluation of whether we believe the selected companies remained comparable to us. Specifically, the composition of our comparable industry public company peers remained the same from our September 30, 2012 contemporaneous valuation through our June 30, 2013 contemporaneous valuation. Beginning with our September 30, 2013 contemporaneous valuation, we added two newly public companies after their volatility had normalized. We also added one other public company that we believe is comparable to us. Within each valuation report, our peer group used for valuation estimates, including the determination of the discount rate, volatility assumptions and revenue multiples, was comprised of the same comparable public companies. While we believe that this group of comparable public companies was appropriate, there are differences in size or stage of maturity and in offerings of products or services between many of our selected peer public companies and us. Therefore, had a different set of peer companies been used, a different valuation may have resulted.

 

In determining the revenue multiples to be used in the market approach, we first obtained the stock price and market capitalization for each of our comparable industry peer companies. We then calculated an estimated enterprise value for each comparable industry peer company. Next, we obtained prior year actual as well as the

 

76


Table of Contents

next year future revenue estimates for each of the comparable industry peer companies from market or industry information and calculated revenue multiples by dividing each comparable company’s calculated enterprise value by its actual and estimated revenue. We then selected a revenue multiple based on our assessment of the strengths and weaknesses of our company relative to these comparable companies. We then applied the revenue multiple to our projected revenue data to arrive at a valuation of our company.

 

For each valuation, we prepared financial projections to be used in both the income and market approaches. The financial projections took into account our historical financial operating results, our business experiences and our future expectations. We factored the risk associated with achieving our forecast into selecting appropriate multiples and discount rates. There is inherent uncertainty in these estimates, as the assumptions we used were highly subjective and subject to change as a result of new operating data and economic and other conditions that impact our business.

 

For the valuations prepared from September 30, 2012 through June 30, 2013, the outstanding litigation matters primarily with Brocade were factored into the financial projections to be used in both the income and market approaches and our selections of revenue multiples to be used in the market approach. With the settlement of the Brocade litigation in May 2013, the financial projections of next twelve months revenue and Adjusted EBITDA increased for the September 30, 2013 valuation as we saw an improvement in revenue in the third quarter of 2013.

 

The income approach was applied because we believed that the income approach provided an appropriate indicator to determine the aggregate enterprise value of our company based on our discounted projected cash flows, particularly given our current state of development and the growth implied by our financial projections. However, public companies are often valued based on various factors, including valuation multiples, forecast guidance and discounted cash flow analysis. Accordingly, the market approach was applied because we believed that the market approach provided a meaningful indication of value for the company. As a result, we believe that neither valuation technique was more reflective of our aggregate enterprise value than the other, after taking into account the relative strengths and weaknesses of each approach and our continued progress towards an IPO and decreasing time to marketability.

 

For the September 30, 2012 through June 30, 2013 valuation reports, we determined an enterprise value by utilizing the option pricing model, or OPM to allocate the equity value to each of our classes of stock. We valued each equity class by creating a series of call options on our equity value, with exercise prices based on the liquidation preferences, participation rights, and strike prices of derivatives. The common stock per share value was based on the probability weighted average of two possible future liquidity scenarios:

 

   

the completion of an IPO; and

 

   

no completion of an IPO.

 

Beginning with the September 30, 2013 valuation report, due to greater clarity on potential liquidity events such as preliminary meetings with investment bankers, scheduling an organizational meeting to be held in October 2013 and the resolution of the Brocade litigation, we adopted the probability weighted expected return method, or PWERM, valuation model in order to allocate our equity value among the various potential outcomes. Using the PWERM, the value of our common stock is estimated based upon an analysis of varying values for our common stock assuming the completion of an IPO in various time frames and no completion of an IPO or sale of our Company.

 

We applied a percentage probability weighting to each IPO scenario based on our expectations of the likelihood of each event. We then applied the PWERM in order to allocate the derived aggregate enterprise value to our common stock.

 

In addition, we considered an appropriate discount adjustment to recognize the lack of marketability due to being a closely held entity.

 

77


Table of Contents

Information regarding stock-based awards granted since October 1, 2012 is summarized below as follows:

 

Grant Date

   Number of
Stock
Options
Granted
     Exercise
Price
     Fair
Value
Per

Share of
Common
Stock
     Aggregate
Grant Date
Fair Value
(in thousands)
 

October 22, 2012

     446,263       $ 4.46       $ 4.46       $ 906   

February 6, 2013

     1,258,131         5.78         5.78         3,263   

July 23, 2013

     1,652,826         6.19         6.19         4,723   

October 24, 2013

     1,003,093         8.51         8.93         4,292   

November 13, 2013

     444,905         8.51         9.53         2,120   

February 6, 2014

     710,793         12.19         12.19         4,019   

 

The intrinsic value of all options outstanding as of December 31, 2013 was $98.3 million, based on an assumed initial public offering price of $14.00 per share, which is the midpoint of the estimated offering price range set forth on the cover page of this prospectus.

 

No single event caused the valuation of our common stock to increase from October 1, 2012 through June 30, 2013. Rather, a combination of the factors described below in each period led to the changes in the fair value of the underlying common stock. For the September 30, 2013 valuation the most significant event during this period was the settlement of the litigation in May of 2013 which removed the uncertainty surrounding the litigation and increased the probability of an IPO scenario and the resulting increase in revenue and projected revenue in the quarter ended September 30, 2013.

 

September 30, 2012 Contemporaneous Valuation

 

As of September 30, 2012, we determined the fair value of our common stock to be $4.09 per share. The September 30, 2012 contemporaneous valuation was prepared on a minority, non-marketable interest basis. Our aggregate equity value was determined using the income and market approaches. We determined that we had equal confidence in both approaches and, therefore, weighted them equally to determine the aggregate equity value before factoring in any discounts or allocations. For the income approach, we applied a discount rate of 40.2% and a terminal EBITDA growth rate of 9.0x to our projected cash flows. For the market approach, we applied a revenue multiple derived from our comparable industry peer companies which was then applied to our projected next twelve month revenues. The NTM revenue multiple selected was between the bottom quartile and the median of peer group NTM revenue multiples, which ranged from a bottom quartile of 1.4x to a top quartile of 4.4x.

 

We then allocated our aggregate equity value to our common stock utilizing the OPM based on two probable scenarios: (i) the first scenario assumed that we did not have an IPO with an assumed time to liquidity event of 2.0 years and a discount for lack of marketability of 27% and (ii) the second scenario assumed we completed an IPO with an assumed time to liquidity event of 1.5 years and a discount for lack of marketability of 15%. Both scenarios used an expected volatility of 50%. We assigned a weighting of 75% to the first scenario based on the uncertainty regarding our plans to move forward with an IPO due to our outstanding litigation matters with the remaining 25% being assigned to the IPO scenario.

 

Based on this valuation and other factors, we used $4.09 per share for the fair value of the options that we granted on October 22, 2012. We determined that there had been no significant changes to the business and other relevant factors from September 30, 2012 to October 22, 2012, which would indicate a subsequent change in the fair value of the underlying common stock.

 

In connection with the preparation of our common stock valuation as of December 31, 2012, we noted that the fair value of our common stock increased $1.69 per share between our September 30, 2012 and December 31, 2012 valuation dates, which indicated that there was an increase in the fair value of the underlying common stock

 

78


Table of Contents

for our October 22, 2012 grant. Accordingly, for the October grant, we determined on a straight-line basis that the fair value of the underlying common stock should be $4.46 per share, rather than the $4.09 per share as previously determined.

 

December 31, 2012 Contemporaneous Valuation

 

We experienced 9.6% sequential revenue growth in the fourth quarter of 2012 and reduced the loss from operations by $2.7 million primarily driven by a decrease in litigation expense. The Company received a $62.0 million jury verdict against it in the Brocade litigation. Forecasted revenue and EBITDA improvements resulted in the majority of the increase in the valuation. The increase in the fair value of our common stock from the September 30, 2012 valuation was partially due to higher projected cash flows that were used in the income and market approaches combined with the IPO scenario being assigned a higher probability of occurring. As of December 31, 2012, we determined the fair value of our common stock to be $5.78 per share. The December 31, 2012 contemporaneous valuation was prepared on a minority, non-marketable interest basis. Our aggregate equity value was determined using the income and market approaches. We determined that we had equal confidence in both approaches and, therefore, weighted them equally to determine the aggregate equity value before factoring in any discounts or allocations. For the income approach, we applied a discount rate of 40.6% and a terminal EBITDA growth rate of 9.0x to our projected cash flows. For the market approach, we applied a revenue multiple derived from our comparable industry peer companies which was then applied to our projected next twelve month revenues. The NTM revenue multiple selected was between the bottom quartile and the median of peer group NTM revenue multiples, which ranged from a bottom quartile of 1.6x to a top quartile of 3.9x.

 

We then allocated our aggregate equity value to our common stock utilizing the OPM based on two probable scenarios: (i) the first scenario assumed that we did not have an IPO with an assumed time to liquidity event of 2.0 years and a discount for lack of marketability of 27% and (ii) the second scenario assumed we completed an IPO with an assumed time to liquidity event of 1.0 years and a discount for lack of marketability of 10%. Both scenarios used an expected volatility of 50%. We assigned a weighting of 60% to the first scenario with the remaining 40% being assigned to the IPO scenario. Based on the uncertainty regarding our plans to move forward with an IPO due to our outstanding litigation matters, we concluded that we could not reasonably place a probability higher than 40% toward the IPO scenarios occurring at the time of this valuation.

 

Based on this valuation and other factors, we used $5.78 per share for the fair value of the options that we granted on February 6, 2013. We determined that there had been no significant changes to the business and other relevant factors from December 31, 2012 to February 6, 2013 which would indicate a subsequent change in the fair value of the underlying common stock.

 

March 31, 2013 Contemporaneous Valuation

 

We experienced 13.9% sequential revenue decrease in the first quarter of 2013 and our loss from operations increased by $7.5 million primarily driven by decrease in revenue and increased litigation expense. Forecasted revenue and EBITDA decreased from previous quarter as the Brocade verdict had an impact on the forecasted results. As of March 31, 2013, we determined the fair value of our common stock to be $5.40 per share. The March 31, 2013 contemporaneous valuation was prepared on a minority, non-marketable interest basis. Our aggregate equity value was determined using the income and market approaches. We determined that we had equal confidence in both approaches and, therefore, weighted them equally to determine the aggregate equity value before factoring in any discounts or allocations. For the income approach, we applied a discount rate of 35.3% and a terminal EBITDA growth rate of 7.5x to our projected cash flows. For the market approach, we applied a revenue multiple derived from our comparable industry peer companies which was then applied to our projected next twelve month revenues. The NTM revenue multiple selected was between the bottom quartile and the median of peer group NTM revenue multiples, which ranged from a bottom quartile of 1.6x to a top quartile of 3.8x.

 

We then allocated our aggregate equity value to our common stock utilizing the OPM based on two probable scenarios: (i) the first scenario assumed that we did not have an IPO with an assumed time to liquidity

 

79


Table of Contents

event of 2.0 years and a discount for lack of marketability of 27% and (ii) the second scenario assumed we completed an IPO with an assumed time to liquidity event of 1.0 years and a discount for lack of marketability of 10%. Both scenarios used an expected volatility of 50%. We assigned a weighting of 60% to the first scenario with the remaining 40% being assigned to the IPO scenario. Based on volatility in the capital markets generally and in the market for IPOs, in particular, as well as us being in the early IPO stages coupled with the outstanding Brocade litigation matter, we concluded that we could not reasonably place a probability higher than 40% toward the IPO scenarios occurring at the time of this valuation.

 

We did not grant any options from the March 31, 2013 contemporaneous valuation and the date of our next contemporaneous valuation as of June 30, 2013.

 

June 30, 2013 Contemporaneous Valuation

 

We experienced 1.9% sequential increase in revenue in the second quarter of 2013 and our loss from operations increased by $1.7 million primarily driven by increased litigation expense. Forecasted revenue and EBITDA increased from previous quarter as the settlement of the Brocade litigation in May 2013 had a positive impact on the forecasted results, although the full extent of any change was not apparent by June 30, 2013. The increase in the fair value of our common stock from the March 31, 2013 valuation was partially due to higher projected cash flows that were used in the income and market approaches combined with the IPO scenario being assigned a higher probability of occurring. As of June 30, 2013, we determined the fair value of our common stock to be $6.04 per share. The June 30, 2013 contemporaneous valuation was prepared on a minority, non-marketable interest basis.

 

In June 2013, we sold our Series D redeemable convertible preferred stock at a price per share of $1,000 to outside investors for gross proceeds of $50.0 million. We determined that it was appropriate to not use the market approach—prior sales of company stock to determine an aggregate equity value of the company because the proceeds received from the Series D redeemable convertible preferred stock financing were raised to meet the financial terms of the legal settlement with Brocade. If we had used the market approach—prior sales of company stock approach, it would have resulted in a lower valuation. Accordingly, we determined that the aggregate equity value implied by the Series D redeemable convertible preferred stock financing could not be relied upon to determine the fair value of our common stock.

 

Our aggregate equity value was determined using the income and market approaches. We determined that we had equal confidence in both approaches and, therefore, weighted them equally to determine the aggregate equity value before factoring in any discounts or allocations. For the income approach, we applied a discount rate of 34.3% and a terminal EBITDA growth rate of 7.5x to our projected cash flows. For the market approach, we applied a revenue multiple derived from our comparable industry peer companies which was then applied to our projected next twelve month revenues. The NTM revenue multiple selected was between the low and the median of peer group NTM revenue multiples, which ranged from a low of 1.1x to a top quartile of 3.1x.

 

We then allocated our aggregate equity value to our common stock utilizing the OPM based on two probable scenarios: (1) the first scenario assumed that we did not have an IPO with an assumed time to liquidity event of 2.0 years and a discount for lack of marketability of 27% and (2) the second scenario assumed we completed an IPO with an assumed time to liquidity event of 1.0 years and a discount for lack of marketability of 10%. Both scenarios used an expected volatility of 50%. We assigned a weighting of 20% to the first scenario with the remaining 80% being assigned to the IPO scenario. Based on volatility in the capital markets generally and in the market for IPOs, in particular, as well as our continued progress towards the completion of the IPO process and the settlement of the Brocade matter during this quarter, we concluded that assigning an 80% probability toward the IPO scenario was reasonable.

 

Based on this valuation and other factors, we used $6.19 per share for the fair value of the options that we granted on July 23, 2013. We determined that there had been no significant changes to the business and other relevant factors from June 30, 2013 to July 23, 2013, which would indicate a subsequent change in the fair value of the underlying common stock.

 

80


Table of Contents

September 30, 2013 Contemporaneous Valuation

 

We experienced 32.1% sequential increase in revenue in the third quarter of 2013 and our loss from operations decreased by $8.3 million primarily driven by the increase in revenue and a decrease in litigation expense with the conclusion of the Brocade litigation in May 2013. Forecasted revenue and EBITDA increased from the previous quarter as the settlement of the Brocade litigation had a more pronounced positive impact on the forecasted results with a full quarter of the litigation settlement behind us. The increase in the fair value of our common stock from the June 30, 2013 valuation was primarily due to an increase in the aggregate enterprise value as a result of an increase in our actual and forecasted revenue combined with higher revenue multiples being used due to the addition of three new comparable industry peer companies, and to a lesser extent, our continued progress towards an IPO, which resulted in an increase to our aggregate enterprise value. As of September 30, 2013, we determined the fair value of our common stock to be $8.21 per share. The September 30, 2013 contemporaneous valuation was prepared on a minority, non-marketable interest basis.

 

In June and September 2013, we sold our Series D redeemable convertible preferred stock at a price per share of $1,000 to outside investors for gross proceeds of $80.0 million. We determined that it was appropriate to not use the market approach—prior sales of company stock to determine an aggregate equity value of the company because the proceeds received from the Series D redeemable convertible preferred stock financing were raised to meet the financial terms of the legal settlement with Brocade.

 

We allocated our aggregate equity value to our common stock utilizing the PWERM based on three probable scenarios: (i) the first scenario assumed that we completed an IPO with an assumed time to liquidity event of 0.5 years and a discount for lack of marketability of 5%; (ii) the second scenario assumed we completed an IPO with an assumed time to liquidity event of 0.75 years and a discount for lack of marketability of 10% and (iii) the third scenario assumed that we did not have an IPO with an assumed time to liquidity event of 2.0 years and a discount for lack of marketability of 27%. All three scenarios used an expected volatility of 50%.

 

Our aggregate equity value under the first and second scenarios was determined using the market approach. For both scenarios, we applied a revenue multiple derived from our comparable industry peer companies which was then applied to our projected revenues for the year after the deemed timing of our exit event. The NTM revenue multiple selected was between the bottom quartile and the median of peer group NTM revenue multiples, which ranged from a bottom quartile of 1.8x to a top quartile of 3.9x. We assigned a weighting of 40% to each scenario and used the PWERM to allocate our aggregate equity value to arrive at the estimated fair value per share of our common stock. Based on our continued progress towards the completion of the IPO process including preliminary meetings with bankers and scheduling an organizational meeting to be held in October 2013, we concluded that assigning 40% probability towards each IPO scenario was reasonable.

 

Our aggregate equity value under the third scenario was determined using the income and market approaches. We determined that we had equal confidence in both approaches and, therefore, weighted them equally to determine the aggregate equity value before factoring in any discounts or allocations. For the income approach, we applied a discount rate of 34.7% and a terminal EBITDA growth rate of 7.5x to our projected cash flows. For the market approach, we applied a revenue multiple derived from our comparable industry peer companies which was then applied to our projected next twelve month revenues. The NTM revenue multiple selected was between the bottom quartile and the median of peer group NTM revenue multiples, which ranged from a bottom quartile of 1.8x to a top quartile of 3.9x. We assigned a weighting of 20% to allocate our aggregate equity value to arrive at the estimated fair value per share of our common stock.

 

Based on this valuation and other information available to our board of directors such as the completion of our IPO organizational meeting and the progressive steps toward an IPO scenario, we used $8.93 and $9.53 per share for the fair value of the options that we granted on October 24, 2013 and November 13, 2013.

 

81


Table of Contents

November 30, 2013 Contemporaneous Valuation

 

There were no significant changes to the inputs for the November valuation as compared to the September valuation. The increase in the share value of $1.80 from $8.21 at September 30, 2013 to $10.01 at November 30, 2013 was primarily driven by an increased revenue multiple from that used in the September valuation. There were no material changes to the outlook for 2014 and 2015 revenue from the September to November periods. The increase in value from the revenue multiple was partially offset by increases in shares issued and the impact of DLOM on the higher value per share. As of November 30, 2013, we determined the fair value of our common stock to be $10.01 per share. The November 30, 2013 contemporaneous valuation was prepared on a minority, non-marketable interest basis.

 

We allocated our aggregate equity value to our common stock utilizing the PWERM based on three probable scenarios: (i) the first scenario assumed that we completed an IPO with an assumed time to liquidity event of 0.33 years and a discount for lack of marketability of 5%; (ii) the second scenario assumed we completed an IPO with an assumed time to liquidity event of 0.6 years and a discount for lack of marketability of 10% and (iii) the third scenario assumed that we did not have an IPO with an assumed time to liquidity event of 2.0 years and a discount for lack of marketability of 27%. All three scenarios used an expected volatility of 50%.

 

Our aggregate equity value under the first and second scenarios was determined using the market approach. For both scenarios, we applied a revenue multiple derived from our comparable industry peer companies which was then applied to our projected revenues for the year after the deemed timing of our exit event. The NTM revenue multiple selected was between the bottom quartile and the median of peer group NTM revenue multiples, which ranged from a bottom quartile of 1.8x to a top quartile of 3.5x. We assigned a weighting of 40% to each scenario and used the PWERM to allocate our aggregate equity value to arrive at the estimated fair value per share of our common stock. Based on our continued progress towards the completion of the IPO process including preliminary meetings with bankers and holding the organizational meeting in October 2013, we concluded that assigning 40% probability towards each IPO scenario was reasonable.

 

Our aggregate equity value under the third scenario was determined using the income and market approaches. We determined that we had equal confidence in both approaches and, therefore, weighted them equally to determine the aggregate equity value before factoring in any discounts or allocations. For the income approach, we applied a discount rate of 30.1% and a terminal EBITDA growth rate of 8.0x to our projected cash flows. For the market approach, we applied a revenue multiple derived from our comparable industry peer companies which was then applied to our projected next twelve month revenues. The NTM revenue multiple selected was between the bottom quartile and the median of peer group NTM revenue multiples, which ranged from a bottom quartile of 1.8x to a top quartile of 3.5x. We assigned a weighting of 20% to allocate our aggregate equity value to arrive at the estimated fair value per share of our common stock.

 

Based on the previous September 30, 2013 valuation and other information available to our board of directors such as the completion of our IPO organizational meeting and the progressive steps toward an IPO scenario, we used $8.51 per share for the fair value of the options that we granted on October 24, 2013 and November 13, 2013. However, for financial reporting purposes we have determined that the fair value of the underlying common stock for the options granted on October 24, 2013 was $8.93 per share rather than $8.51 per share as previously determined, and the fair value of the underlying common stock for the options granted on November 13, 2013 was $9.53 per share rather than $8.51 per share as previously determined.

 

January 15, 2014 Contemporaneous Valuation

 

There were no significant changes to the inputs for the January valuation as compared to the November valuation. The increase in the share value of $2.18 from $10.01 at November 30, 2013 to $12.19 at January 15, 2014 was primarily driven by eliminating the scenario that assumed no IPO or sale of the company. There were no material changes to the outlook for 2014 and 2015 revenue from November to January valuations. As of January 15, 2014, we determined the fair value of our common stock to be $12.19 per share. The January 15, 2014 contemporaneous valuation was prepared on a minority, non-marketable interest basis.

 

82


Table of Contents

We allocated our aggregate equity value to our common stock utilizing the PWERM based on two probable scenarios: (i) the first scenario assumed that we completed an IPO with an assumed time to liquidity event of 2.5 months and a discount for lack of marketability of 5%; and (ii) the second scenario assumed we completed an IPO with an assumed time to liquidity event of 5.5 months and a discount for lack of marketability of 10%. Both scenarios used an expected volatility of 50%.

 

Our aggregate equity value under the first and second scenarios was determined using the market approach. For both scenarios, we applied a revenue multiple derived from our comparable industry peer companies which was then applied to our projected revenues for the year after the deemed timing of our exit event. The NTM revenue multiple selected was between the bottom quartile and the median of peer group NTM revenue multiples, which ranged from a bottom quartile of 1.8x to a top quartile of 4.1x. We assigned a weighting of 70% to the first scenario and 30% to the second scenario and used the PWERM to allocate our aggregate equity value to arrive at the estimated fair value per share of our common stock. Based on our continued progress towards the completion of the IPO process including preliminary meetings with bankers and completion of an organizational meeting held in October 2013, we concluded that the assigned probability towards each IPO scenario was reasonable.

 

Based on the valuation and other information available to our board of directors such as the completion of our IPO organizational meeting and the progressive steps toward an IPO scenario, we used $12.19 per share for the fair value of the options that we granted on February 6, 2014. We have not granted any options subsequent to February 6, 2014.

 

Our stock-based compensation expense related to stock-based awards is as follows:

 

     Year Ended
December  31,
 
     2011      2012      2013  
     (In thousands)  

Cost of revenue

   $ 49       $ 87       $ 162   

Sales and marketing

     696         1,316         2,228   

Research and development

     551         776         1,356   

General and administrative

     168         361         536   
  

 

 

    

 

 

    

 

 

 

Total stock-based compensation expense

   $ 1,464       $ 2,540       $ 4,282   
  

 

 

    

 

 

    

 

 

 

 

As of December 31, 2013, we have stock-based compensation of $14.2 million related to unvested stock options net of estimated forfeitures that we expect to recognize over a weighted-average period of 2.9 years. In future periods, we expect our stock-based compensation to increase as a result of our existing unrecognized stock-based compensation to be recognized as these awards vest and as we issue additional stock-based awards to attract and retain employees.

 

Recent Accounting Pronouncements

 

In July 2012, the FASB issued ASU No. 2012-02, Testing Indefinite-Lived Intangible Assets for Impairment (Topic 350)—Testing Indefinite-Lived Intangible Assets for Impairment . The objective of ASU No. 2012-02 is to simplify how entities test indefinite-lived intangible assets for impairment. ASU No. 2012-02 permits an entity to first assess qualitative factors to determine whether it is more likely than not that an indefinite-lived intangible asset is impaired. The more-likely-than-not threshold is defined as having a likelihood of more than 50%. If an indefinite-lived asset has qualitative factors that indicate impairment, the entity would then be required to perform the quantitative impairment test. An entity can choose to perform the qualitative assessment on none, some, or all of its indefinite-lived intangible assets. Moreover, an entity can bypass the qualitative assessment and perform the quantitative impairment test for any indefinite-lived intangible asset in any period. The revised standard is effective for annual and interim indefinite-lived impairment tests performed for fiscal years beginning after September 15, 2012, with early adoption permitted. We adopted ASU 2012-02 on January 1, 2013, and the adoption did not have a material impact on our consolidated financial statements as we do not have a material balance of indefinite lived intangible assets.

 

83


Table of Contents

In July 2013, the FASB issued ASU No. 2013-11,  Income Taxes (Topic 740), Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists . ASU 2013-11 provides guidance on the financial statement presentation of an unrecognized tax benefit when a net operating loss carryforward, similar tax loss, or tax credit carryforward exists. This new standard requires the netting of unrecognized tax benefits, or UTBs, against a deferred tax asset for a loss or other carryforward that would apply in settlement of the uncertain tax positions. UTBs will be netted against all available same-jurisdiction loss or other tax carryforwards that would be utilized, rather than only against carryforwards that are created by the UTBs. This new guidance is effective for us beginning January 1, 2014, with early adoption permitted. Since ASU 2013-11 only impacts financial statement disclosure requirements for unrecognized tax benefits, we do not expect its adoption to have an impact on our consolidated financial statements.

 

84


Table of Contents

BUSINESS

 

Overview

 

We are a leading provider of advanced application networking technologies. Our solutions enable enterprises, service providers, Web giants and government organizations to accelerate, secure and optimize the performance of their data center applications and networks. Our products are built on our Advanced Core Operating System, or ACOS, platform of advanced networking technologies, which is designed to enable our products to deliver substantially greater performance and security relative to prior generation application networking products. Our software based ACOS architecture also provides the flexibility that enables us to expand our business to offer additional products to solve a growing array of networking and security challenges arising from increased Internet cloud and mobile computing.

 

We currently offer three software based advanced application networking solutions. These are Application Delivery Controllers, or ADCs, to optimize data center performance; Carrier Grade Network Address Translation, or CGN, to provide address and protocol translation services for service provider networks; and a Distributed Denial of Service Threat Protection System, or TPS, for network-wide security protection. We deliver these solutions both on optimized hardware appliances and as virtual appliances across our Thunder Series and AX Series product families.

 

Our ACOS platform architecture is optimized for modern 64-bit computer processors, or CPUs, which increasingly have multiple parallel processing cores that operate within a single CPU for higher efficiency and performance scalability. In order to maximize the capabilities of these increasingly dense multi-core CPUs, ACOS implements a proprietary shared memory architecture that provides all cores with simultaneous access to common memory. This shared memory architecture enables our products to utilize these multi-core CPUs efficiently and scale performance with increasing CPU cores. As a result, we believe our ACOS application networking platform enables us to provide our end-customers with products that can deliver superior price performance benefits over products that lack these capabilities. We believe our products can process two to five times more web transactions (measured as Layer 4 connections per second) in certain head to head product comparisons per unit of computing and memory resources, power, rack space or list price. ACOS’ high performance design enables our products to address a wide range of today’s performance-driven networking challenges. For example, we have expanded our products’ capabilities to defend against the rising volume of large scale, sophisticated cyber security threats, such as Distributed Denial of Service, or DDoS, and other increasingly sophisticated high volume network attacks. The flexible software design of ACOS enables our end-customers to deploy our products across a number of new models for IT operations, such as managed hosting of their network by a third party provider and Internet cloud-based applications and networks.

 

We are a leading provider of application network technologies, based on our networking solutions’ performance, security and scalability. We believe our products can process two to five times more web transactions (measured as Layer 4 connections per second) in certain head to head product comparisons per unit of computing and memory resources, power, rack space or list price. Furthermore, the flexible software design of ACOS enables our end customers to deploy our products across a number of new models for IT operations, such as managed hosting of their network by a third party provider and Internet cloud-based applications and networks. To maintain and strengthen our leadership position, we will need to continue to innovate and advance our application network technologies and compete effectively with other companies that participate in our markets, including larger and more well-established companies.

 

We sell our products globally to service providers and enterprises that depend on data center applications and networks to generate revenue and manage operations efficiently. Our high-touch sales force engages directly or through indirect distribution channels with our end-customers. We believe that a high-touch, customer-focused selling process is important before, during and after the sale of our products to maximize our sales success. Product fulfillment is generally done through our original equipment manufacturers or distribution channel partners. As of December 31, 2013, we had sold our products to more than 2,900 customers across 65 countries, including three of

 

85


Table of Contents

the top four United States wireless carriers, seven of the top ten United States cable providers, and the top three wireless carriers in Japan, in addition to other global enterprises, Web giants and governmental organizations. Our business is geographically diversified with 48% of our total revenue from the United States, 28% from Japan and 24% from the rest of the world for the year ended December 31, 2013.

 

For the years ended December 31, 2010, 2011, 2012 and 2013, our total revenue was $55.3 million, $91.3 million, $120.1 million and $141.7 million, representing a compound annual growth rate of approximately 37% from 2010 to 2013. Our total revenue grew 32% from 2011 to 2012 and 18% from 2012 to 2013. For the years ended December 31, 2010, 2011, 2012 and 2013, our gross margin was 78%, 80%, 80% and 76%. We generated net income (loss) of $5.2 million, $7.3 million, $(90.2) million and $(27.1) million for the years ended December 31, 2010, 2011, 2012 and 2013. Our net income (loss) in these periods was affected by the settlement of, and legal expenses related to, our litigation with Brocade Communications Systems, Inc.

 

Our Industry

 

Organizations are increasingly dependent on their websites and data center infrastructure for business operations. IT administrators struggle to ensure continuous availability of these business critical resources in the face of escalating performance expectations, demands to migrate to cloud computing and increasingly sophisticated cyber security attacks. IT administrators are therefore seeking new application networking technologies to optimize the performance and security of data center applications and networks.

 

While billions of dollars have been spent to date on software and the underlying compute and networking infrastructure, the challenges of continuous network and application uptime, performance and security continue to increase unabated. Responding to these challenges is the central purpose of application networking: ensuring that data center applications and networks remain performance optimized and secure.

 

Trends Driving Continued Evolution of Application Networking

 

Commercial damage and customer dissatisfaction from poor website, data center application and network performance can have a lasting negative impact well beyond the expenses related directly to the downtime. To optimize data center application and network performance and avoid unforeseen downtime, organizations deploy application networking technology to ensure the performance and security of data center resources. These organizations must simultaneously address significant networking industry trends such as:

 

   

Increased Adoption of Cloud Computing Applications . As organizations move their business critical applications to the cloud, they need application networking solutions optimized for cloud computing that can scale with the performance demands and security expectations of this growth. The compelling economics, functionality and flexibility of these cloud-delivery models are driving rapid growth in their adoption. According to Cisco’s Global Cloud Index, global Internet Protocol, or IP, traffic for cloud-based applications will grow at a 35% compound annual growth rate from 2012 through 2017, while data center traffic generally will grow at a 25% compound annual growth rate over the same period.

 

   

Increased Network Complexity Due to Virtualization and Software Defined Networking Adoption. Application networking technologies need to adapt to software-oriented data center architectures, including virtualization and Software Defined Networking, or SDN. The increasing use of virtual servers and SDNs enable dynamically provisioned data center infrastructure which delivers significantly increased operational efficiency and resource utilization. However, the adoption of these new data center architectures is increasing network complexity and requires application networking solutions that are flexible and dynamic.

 

   

Rapid Growth of Internet-Connected Devices and the Exhaustion of the Existing IP Address Space . The rapid growth of mobile and other Internet-connected devices has overwhelmed the current Internet Protocol addressing scheme, IPv4. Gartner estimates that in 2020 there will be up to 30 billion devices connected with unique IP addresses, most of which will be products. However, IPv4 can only support 4.3 billion IP addresses and will be fully exhausted in major markets such as the United States, Europe

 

86


Table of Contents
 

and Asia by 2015. To support this rapid growth of Internet-connected devices, the industry is transitioning to the next-generation addressing system, IPv6. As this transition unfolds, application networking technology will play an increasingly significant role in managing two Internet connection standards simultaneously, extending the viability of IPv4 and enabling end-customers to move to the IPv6 standard.

 

   

Increasing Risk from Cyber Security Threats. Cybercriminals, foreign military intelligence organizations and amateur hackers are targeting the data centers of organizations of every type. Authentication, application security and encryption are necessary but insufficient defenses against increasingly sophisticated attacks. One particular cyber threat, DDoS, is particularly nefarious and presents a significant threat to any network. In a DDoS attack, the perpetrator attempts to render the target network unavailable for its intended purpose by orchestrating coordinated attacks from massive worldwide networks of compromised computers, called botnets. DDoS attacks have become more frequent and sophisticated and can easily overwhelm an inadequately protected target network. According to Forrester, the number of DDoS attacks has increased five times during the period from 2010 to 2012. Despite this significant increase in the number, only 22% of the organizations in Forrester’s 2012 Security Survey had implemented DDoS protection services. As these and other types of attacks have become more frequent and sophisticated, organizations increasingly rely on application networking technologies for defense.

 

   

Exponential Growth in Data Center Speeds . Organizations are enhancing the performance of their networks by increasing the data traffic speeds of their data center networks from the 1 and 10 Gigabit Ethernet rates in use over the last ten years to 40 Gigabit Ethernet currently and evolving to 100 Gigabit Ethernet as soon as 2015. Organizations require high performance application networking technology to ensure data center application and network performance and security are maintained despite rapidly escalating data rates.

 

Limitations of Alternative Approaches in Addressing These Challenges

 

Conventional networking equipment is built on custom designed semiconductors and is limited to only basic data forwarding and security functions based on a narrow range of address fields within a data packet. Due to these rigid designs and limited capabilities, conventional networking equipment cannot effectively process more advanced application data and thus cannot effectively perform application-layer networking functions.

 

To address these shortcomings, first-generation application networking products were developed that could inspect and take action based upon the specific application or data traffic. This capability is referred to as being application-aware. Thus first generation application networking products were able to improve application performance and security in ways not possible for conventional networking equipment. Examples of these first-generation application networking products include server load balancers and intrusion prevention systems. However, these first-generation products have fundamental limitations, including general purpose computing architectures that do not provide for sharing of memory resources and thus cannot fully utilize the functionality of modern, multi-core processors. These products lack the performance capabilities necessary to rapidly analyze application data at the rates necessary to meet performance and security requirements in modern data centers.

 

Need for Next-Generation High Performance Application Networking

 

In order to address these increasingly complex network challenges, a new generation of application-aware networking solutions is needed in order to look deeply into application content, modify content for performance optimization or security purposes, and forward the traffic at rapidly escalating network data rates. Next-generation application networking solutions require:

 

   

Ability to Scale with High Speed Network Traffic. As the number of Internet-connected devices continues to increase rapidly and the speed of network traffic continues to accelerate, architectural limitations in first-generation application networking approaches prevent them from responding

 

87


Table of Contents
 

effectively due to their inability to scale performance effectively with newer multi-core processor architectures. Next-generation application networking technologies must be able to analyze application data intelligently as they move through faster networks to take full advantage of the increasing computing power of modern multi-core processors.

 

   

Platform to Provide Broad Application Extensibility. First-generation approaches to application networking use rigid system architectures that have been unable to respond effectively to the escalating security threats and the rapidly changing requirements of modern applications and cloud computing. Next-generation application networking technology must be flexible and agile to address the increasing array of networking and application challenges.

 

   

Sophisticated Security Functionality. Next-generation application networking technology should be capable of detecting and mitigating the effects of large-scale sophisticated cyber security threats such as DDoS and other attacks at the application level of the network. In order to defend against the rising volume of these sophisticated cyber-attacks, which circumvent conventional network-based security solutions, application networking solutions must have exceptional application content, inspection capabilities and processing speeds.

 

   

Ability to Accommodate a Variety of IT Delivery Models. Enterprises are increasingly handling their information technology needs in a variety of ways, including operating their own conventional dedicated data centers, and outsourcing to managed IT hosting providers of cloud-based applications to multiple clients often known as Infrastructure-as-a-Service. Some application networking vendors offer products for only a subset of these IT delivery models, or provide inconsistent features and management across these products, which is unacceptable to customers using multiple IT delivery models. Organizations need consistent application networking features and functionality regardless of which IT model, or combination of models they use, and regardless of whether their networks are in virtual or physical forms.

 

   

Predictable Operational Performance. As data center traffic grows, first-generation approaches have limitations that can cause unpredictable performance that cannot consistently meet expected service levels. Next-generation application networking needs to deliver appropriate levels of service at ever-increasing data traffic rates.

 

The Next-Generation Application Networking Market Opportunity

 

We believe that the total worldwide addressable market for next-generation application networking is a combination of discrete markets that represent aggregated expenditures of $12.6 billion in 2013. The next-generation application networking market consists of Application Delivery Controllers, Network Security Equipment and Secure Web Gateways. According to Gartner, these discrete market opportunities represent $1.9 billion, $8.5 billion and $2.2 billion.

 

The A10 Networks Solution

 

We are a leading provider of advanced application networking technologies. Our solutions are designed to enable enterprises, service providers, Web giants and governmental organizations to accelerate, secure and optimize the performance of their data center applications and networks. Our Advanced Core Operating System, or ACOS, platform incorporates our proprietary shared memory architecture, which is designed to utilize multi-core processors efficiently and provide increasing levels of performance with increasing processor density. We offer a range of software based solutions built on top of our ACOS platform that address a variety of performance and security challenges in customer networks. Our products can be deployed in a variety of forms, including physical optimized hardware appliances and as virtual appliances.

 

The customer benefits of our platform include:

 

   

High Performance Architecture Optimized for Efficiency. By taking advantage of the capabilities of multi-core processors through use of our proprietary shared memory architecture, we believe our

 

88


Table of Contents
 

ACOS application networking platform enables us to provide our end-customers with products that can deliver superior price performance benefits over products that lack these capabilities. We believe our products can process two to five times more web transactions (measured as Layer 4 connections per second) in certain head to head product comparisons per unit of computing and memory resources, power, rack space or list price. This superior performance enables data center applications to be reliably accessible even as network speeds and complexity increase.

 

   

Agile and Flexible Platform for a Growing Array of Application Networking Services. Our software based application networking platform is designed to provide flexibility for us to develop new applications to address broadening customer needs. Since inception, we have demonstrated the flexibility of our ACOS platform by delivering new network solutions to our end-customers, such as CGN and TPS solutions. Similarly, we have expanded the number of management and orchestration features to adjust to the evolving migration to cloud computing and SDN. The entirely software based nature of ACOS enables our platform the agility to respond to increasing use of virtual servers, SDNs and other networking industry trends as they arise, helping end-customers integrate new networking models and technologies seamlessly.

 

   

High Performance Network Security Functionality. Our high performance application networking platform delivers a range of security features that decrypt, inspect and authenticate the flow of application content across a network, and then detect and mitigate the effects of sophisticated cyber security attacks that can threaten availability of the largest websites and networks around the world. Due to the scalable, high performance ACOS shared memory architecture, our products have the capacity to support up to hundreds of millions of simultaneous network sessions in a single appliance and are designed to withstand growing threats like DDoS attacks which leverage massive botnet networks to overwhelm network services.

 

   

Support for Diverse IT Delivery Models. We offer a portfolio of solutions that address varying IT delivery models, with a range of product form factors, including physical and virtual appliances for dedicated data centers. We also offer virtualized and partitioned appliances for multi-tenant hosted data centers, and pay-as-you-go licensing models for cloud service providers offering utility computing and networking services. We deliver a consistent set of features and interfaces for management of our products across a variety of IT models, so that enterprises and service providers can be assured of a similar experience regardless of model.

 

   

Predictable Policy Enforcement. Our ACOS platform is designed to ensure that traffic is reliably delivered with the right security and application-specific policies. The proprietary shared memory architecture of our ACOS platform is designed to assist network administrators in ensuring that desired levels of customer service are achieved and policies regarding network security are enforced.

 

   

Customer-Friendly Business Model. We are highly focused on end-customer success. We have organized our product development, product pricing, sales and post-sales technical support efforts to collaborate with our end-customers to identify and satisfy their needs. For example, we offer single all-inclusive pricing for our products, which provides simplicity for end-customers, compared to our competitors who often have more complicated pricing and licensing models. We also staff our customer support organization with highly trained and experienced engineers who have deep product and technical expertise in order to rapidly resolve customer issues.

 

Our Growth Strategy

 

Our goal is to be the global leader in application networking. The key elements of our growth strategy include:

 

   

Extend Product Offerings Using Our ACOS Platform. We believe that our software based platform enables us to innovate quickly to adjust to the dynamics of the application networking market and customer trends. We have historically been able to rapidly build upon the ACOS platform due to this flexibility, leading to the introduction of new products, in addition to incremental features offered

 

89


Table of Contents
 

through software updates for existing products. We intend to take advantage of the ACOS platform to continue to extend our portfolio of products, as we have demonstrated through the release of our CGN and TPS product lines.

 

   

Drive Greater Penetration into Our Customer Base. We believe the strong relationships and high customer satisfaction we maintain with our more than 2,900 customers provide us with the opportunity to drive incremental demand for our products. We intend to continue to expand our penetration into existing customer accounts from an initial deployment of our products to broader deployments across the organization. For example, our 25 largest end-customers, as measured by revenue generated in 2012 and 2013, have, on average, made purchases in 81% of the quarters following their initial purchase. We also intend to sell new products and services to existing end-customers, which provides us with opportunities for additional revenue. With these same 25 largest end-customers, revenue from follow-on sales of our products and services has, on average, been over eight times the revenue we realized from those end-customers in the initial quarter of purchase.

 

   

Expand Our Global Sales Organization to Attract New Customers. We believe that the global market for application networking is large, and that we are well positioned to continue to grow our business with new end-customers. We sell substantially all of our solutions through our high-touch sales organization and global channel partners, and we intend to target new end-customers by continuing to invest in our sales organization, including field sales, inside sales and sales engineers to capitalize on the large and growing application networking opportunity.

 

   

Enhance and Expand Our Distribution Channel Partner Ecosystem . We believe that our distribution channel partners, value added resellers, distributors, OEMs and technology partners, are important in expanding our end-customer reach and improving sales efficiency. We intend to focus on enhancing and expanding in-depth relationships with partners that have strong application networking expertise and a reputation for providing solutions to customers. For example, we have successfully partnered with LM Ericsson Telephone Company, or Ericsson, one of the world’s leading providers of telecommunications equipment technology and services, to deliver our full line of CGN products alongside their solutions and products to service providers. We are also expanding our successful relationship with NEC Corporation, a leader in the integration of IT and network technologies, to develop a go to market plan for public and private cloud environments. We also intend to increase the number of our distribution channel partners, OEMs and technology partners in order to expand our sales reach.

 

   

Invest and Enhance Our Marketing Programs. We intend to increase our investment substantially across all aspects of marketing, including product and solution marketing, branding, generation of leads, and corporate communications, to promote awareness of our ACOS platform. We have recently expanded our marketing team to lead these initiatives.

 

Technology

 

Our Advanced Core Operating System Platform

 

ACOS Scalable Symmetrical Multi Processing Platform . ACOS is a scalable, flexible and agile software based platform for next-generation application networking. Our proprietary ACOS 64-bit shared memory architecture is critical for current and future performance and scalability requirements. Because ACOS is software based, we can use merchant silicon and industry standard x86 processors to increase our product development velocity, decrease our product development costs, and expand into new product markets. All of our products are built on our ACOS platform and leverage its performance optimization and security services.

 

90


Table of Contents

ACOS is a symmetric multiprocessing operating system that was built from the ground up to leverage industry trends toward higher density, multi-core processor architectures. The following diagram illustrates our ACOS architecture:

 

LOGO

 

   

High Performance and Intelligent Network I/O Processing. In order to maximize the efficiency of high density, multi-core processors, we have developed a high performance intelligent network I/O technology that can balance application traffic flows equitably across processor cores. Our Flexible Traffic Accelerator logic can be implemented either as software running within a standard x86 processor or a Field Programmable Gate Array, or FPGA, semiconductor. Our Flexible Traffic Accelerator also performs certain hardware-based security checks for each packet and can discard suspicious traffic before it can impact system performance.

 

   

Scalable and Efficient Memory Usage. To improve the performance of our multi-core processor architecture, we have developed a shared memory technology to allow all processors to share common memory and the state of the system simultaneously. As a result, we avoid the overhead associated with Inter-Processor Communication architectures deployed in first-generation approaches. We optimize memory to be visible to all cores simultaneously, while minimizing communication overhead and contention among processors for allocated memory space. Since all processors share a common memory pool, we can dynamically allocate memory space based upon the application processing requirements without constraints. Because configurations, policies and network databases are efficiently stored within a shared memory architecture, we can achieve greater performance and scalability from memory and processor resources.

 

   

Optimized Application Networking. Once data has been processed and placed into a shared memory, then a processor can begin to apply ACOS common services and function-specific logic. To ensure that every processor can be utilized to perform every function, and thereby achieve greater system utilization, we have designed ACOS to use all processor cores symmetrically for all functions and services. The ACOS common services perform a set of key operational functions, including configuration management, network I/O, aFleX scripting, Virtual Chassis System, or aVCS, aXAPI for management integration, Application Delivery Partitions, or ADP, virtualization to enable multi-tenancy, and common resource management such as buffer, system memory, timer management and other internal system management tasks. ACOS features a modular software design, which improves reliability by ensuring that modifications made to one module will not have unwanted side-effects on other system functions.

 

91


Table of Contents

Other ACOS Technologies . ACOS incorporates a number of other technologies to provide a rich environment for developing Layer 4-7 application networking solutions, including:

 

   

aFleX Scripting. aFleX scripting technology is based on industry-standard Tool Command Language and enables end-customers to write custom scripts to augment the application processing.

 

   

ADP. ADP enables multi-tenancy in the ACOS common services so that multiple departments of an organization or multiple end-customers can share a physical/virtual appliance.

 

   

aVCS. aVCS enables multiple physical/virtual appliances to be managed as a single chassis.

 

   

aXAPI . aXAPI is an industry standard RESTful program interface to enable management integration for achieving automated management.

 

Our Products

 

We offer our end-customers a portfolio of software based solutions that are built upon ACOS. Our premium Thunder Series product family, launched in the second quarter of 2013, has three solutions to address end-customer needs, including ADC to optimize data center performance, CGN to provide network address and protocol translation services for service provider networks, and TPS for network-wide security protection. Our AX Series is our original product family that was launched in 2007 and includes ADC and CGN solutions.

 

Application Networking Solutions

 

We currently offer three software based solutions that are built on top of our software based ACOS application networking platform and are delivered primarily on our optimized hardware appliances:

 

Application Delivery Controller . Our ADC solution provides advanced server load balancing, including global server load balancing, high availability, aFleX scripting, aVCS, ADP virtualization delivery for multi-tenancy, Secure Sockets Layer, or SSL, acceleration, SSL intercept, caching and compression, web application firewall, domain name server application firewall and others. ADC solutions are typically deployed in front of a server farm within a data center, including web, application and database servers.

 

Carrier Grade Network Address Translation . Our CGN solution extends the life of increasingly scarce IPv4 address blocks and their associated infrastructure, and provides migration solutions to the IPv6 addressing standard. Our CGN solution is typically deployed in service provider networks to provide standards-compliant address and protocol translation services between varying types of IP addresses.

 

Threat Protection System . Our TPS solution provides high volume, large scale detection and mitigation services to ensure that networks and server resources remain available even throughout a massive DDoS attack. TPS solutions are typically deployed at the perimeter of customer networks to protect their internal network resources from large-scale, volumetric cyber attacks, protocol attacks and resource attacks from distributed networks of compromised machines, or botnets.

 

Product Families

 

We deliver these solutions as both physical and virtual appliances across our Thunder Series and AX Series product families.

 

Thunder Series . Our ADC, CGN and TPS solutions are available on our Thunder Series product family, including a range of physical appliances with throughput ranges from 5 gigabits per second, or Gbps, to 150 Gbps and a variety of other security and performance options available, as listed in the table below. Our vThunder virtual appliances operate on all major hypervisor platforms, including VMware, Microsoft, Citrix Xen and Linux KVM.

 

       LOGO

 

92


Table of Contents

The following table outlines some of the features of a selection of our Thunder Series physical appliances.

 

Thunder Series    Thunder 930     Thunder 1030S     Thunder 3030S     Thunder 5430S     Thunder 6430     Thunder 6430S 
Throughput   5.0 Gbps   10.0 Gbps   30.0 Gbps   77.0 Gbps   150.0 Gbps   150.0 Gbps
Layer 4 Connections per Second (CPS)   200.0 K   450.0 K   750.0 K   2.8 MM   5.3 MM   5.3 MM
SSL CPS (1024/2048)   1.9 K / 400.0   25.0 K / 7.0 K   47.0 K / 14.0 K   100.0 K / 68.0 K   N/A   134.0 K / 130.0 K
Ethernet Interface                    

1 Gb Copper

  6   6   6   0   0   0

1 Gb Fiber

  2   2   2   0   0   0

10 Gb Fiber

  2   2   4   16   16   16

40 Gb Fiber

  0   0   0   4   4   4
Processor   Intel Xeon
Dual-core
  Intel Xeon
Quad-core
  Intel Xeon
Quad-core
  Intel Xeon
Octo-core
  2 x Intel Xeon
Octo-core
  2 x Intel Xeon
Octo-core
Memory (RAM)   8.0 Gb   8.0 Gb   16.0 Gb   64.0 Gb   128.0 Gb   128.0 Gb

 

AX Series . Our ADC and CGN solutions are available on our AX Series product family, including a range of physical appliances with throughput ranges from 7.5 Gbps to 115 Gbps and a variety of other security and performance options available.

 

LOGO

 

The following table outlines some of the features of a selection of our AX Series physical appliances.

 

AX Series   AX 1030   AX 2500   AX 3030   AX 3000-11-
GCF
  AX 3200-12   AX 3400   AX 3530   AX 5200-11   AX 5630

Throughput

  7.5 Gbps   11.0 Gbps   27.0 Gbps   30.0 Gbps   19.5 Gbps   38.0 Gbps   115.0 Gbps   40.0 Gbps   77.0 Gbps
Layer 4 Connections per Second (CPS)  

 

430.0 K

 

 

300.0 K

 

 

580.0 K

 

 

1.0 MM

 

 

1.1 MM

 

 

2.5 MM

 

 

1.3 MM

 

 

4.8 MM

 

 

6.0 MM

SSL CPS (1024/2048)   5.5 K /
1.2 K
  30.0 K /
5.0 K
  12.0 K /
2.7 K
  51.0 K /
24.0 K
  44.0 K /
24.0 K
  84.0 K /
24.0 K
  120.0 K /
98.0 K
  155.0 K /
130.0 K
  180.0 K /
174.0 K

Ethernet Interface

                   

1 Gb Copper

  6   8   6   8   20   20   4   0   0

1 Gb Fiber

  2   4   2   8   4   4   2   4   4

10 Gb

  0   0   2   4   4   4   12   16   24

40 Gb

  0   0   0   0   0   0   0   0   4

Processor

  Intel Xeon
Quad-core
  Intel Xeon
Quad-core
  Intel Xeon
Quad-core
  Intel Xeon
Hexa-core
  Intel Xeon
Quad-core
  Intel Xeon
Hexa-core
  2 x Intel
Xeon
Octo-core
  2 x Intel
Xeon
Hexa-core
  2 x  Intel
Xeon
Octo-core

Memory (RAM)

  8.0 Gb   6.0 Gb   16.0 Gb   24.0 Gb   12.0 Gb   24.0 Gb   64.0 Gb   48.0 Gb   128.0 Gb

 

Centralized Management Solution

 

Our aGalaxy multi-device network management solution enables a network administrator to manage multiple A10 devices. While full control of our appliances can be achieved effectively out-of-the-box, the benefit of central and automated management increases as more appliances are added. The user interface provides a

 

93


Table of Contents

quick, at-a-glance view of status using a standard web browser. aGalaxy is designed to provide lower operational costs, as staff are freed up from repetitive tasks, while also increasing precision and accuracy with centralized and automated tasks, reducing the potential for human error.

 

Support and Services

 

One of our founding principles is to provide superior customer and technical support. Our global support team is part of our engineering organization and is trained across all products and solutions. Our support team takes complete ownership of customer issues from the beginning to the end to achieve rapid response and a high quality resolution. We believe that our ability to provide consistent, high-quality customer service and technical support is a key factor in attracting and retaining end-customers of all sizes. Accordingly, we offer a broad range of support services that include installation, phone support, repair and replacement, software updates, online tools, consulting and training services.

 

All customers receive warranty support for 90 days and greater than 95% of our end-customers purchase one of our maintenance products which entitles them to the support provided by our global support team. We offer two maintenance product options – Basic Support and Gold Support which are described below. The average maintenance contract term is 18 months. We invoice our channel partners or end-customers directly for maintenance contracts, in advance, up-front at the time of hardware purchase. We generally provide discounts to our end-customers when they commit to longer term contracts. All our maintenance contracts are non-cancellable and are renewed through the same channel as originally purchased. Updates of our software are provided to all end-customers on a when-and-if-available basis with a current maintenance contract. Additionally, we provide on-site technical support as part of certain maintenance contracts. We maintain technical support centers in the United States, Japan, China and the Netherlands.

 

Maintenance Levels

 

Support Plan  

Maintenance/

Warranty
Terms

  Hardware
Repair
(1)
  Advance
Replacement
(1)(2)
  Software
Support
(1)
  Technical
Support
  Web
Support

Standard Warranty

 

90 days from

purchase date

  Yes   Limited   Yes  

8 hr x 5 days/week

  24 x 7

Basic Support

 

1, 2, and 3 year

contract terms

  Yes   Limited   Yes  

8 hr x 5 days/week

  24 x 7

Gold Support (3)

 

1, 2, and 3 year

contract terms

  Yes   Yes   Yes  

24 x 7

  24 x 7

 

(1)   “Yes” indicates that service provided over the course of the contractual term
(2)   “Limited” indicates 30 days from purchase da3te
(3)   Not available in all regions

 

We have a professional services team able to provide a full range of fee-based consulting services, including presale network assessment, comprehensive network analysis and capacity planning, post-sale migration and implementation services, on-site installation and on-going support.

 

Customers

 

We target organizations globally that depend on data center applications and networks to generate revenue and manage operations efficiently. Our end-customers operate in a variety of industries including telecommunications, technology, industrial, retail, financial and education. Since inception, our customer base has grown rapidly. As of December 31, 2013, we had sold our products to more than 2,900 customers across 65 countries. Our end-customers include three of the top four United States wireless carriers, seven of the top ten United States cable providers, and the top three wireless carriers in Japan, in addition to other global

 

94


Table of Contents

enterprises, Web giants and governmental organizations. End-customers that accounted for at least $100,000 in revenue in either 2012 or 2013, through either direct purchases from us or purchases through a reseller, include:

 

Service Providers   Enterprise   Technology and Web

Comcast IP Services

  Caesars Entertainment Corporation   Box.net

Deutsche Telecom

  Department of Energy   CareerBuilder

KDDI Corporation

  Hitachi, Ltd.   Go Daddy

NTT DoCoMo

  Hyundai Motor   Integral Ad Science

Rogers Communications Inc.

  Microsoft   LinkedIn Corporation

Time Warner Cable

  Morgan Stanley   Rocket Fuel

T-Mobile PCS Holdings LLC

  Samsung SDS   Yahoo! Inc.

 

Two end-customers, NTT DoCoMo, Inc., a Japanese wireless provider, and Microsoft Corp., an enterprise customer, both purchasing through resellers, accounted for 13% and 10% of net revenue in the year ended December 31, 2013; no other end-customer accounted for more than 10% of our total revenue during the same period.

 

Customer Case Studies

 

We believe that customers select our solution due to the capabilities of the ACOS platform and our commitment to customer-driven innovation and success. The following case studies highlight the success of our platform and solutions.

 

National Provider of Wireless Voice, Messaging and Data Services: The CGN Solution

 

The Problem: This end-customer is a national provider of wireless voice, messaging and data services and must provide network connectivity to millions of subscribers. In addition, this end-customer has spent billions of dollars to build and maintain a network that uses IPv4 addressing technology to provide Internet services to their subscribers. Due to the growth in inter-connected devices, this end-customer has a limited number of IPv4 addresses. Because the cost to replace IPv4 with IPv6 was prohibitive, our end-customer needed a high performance, highly scalable carrier grade network address translation solution which would allow many subscribers to share a single IP address and thereby extend the life of their IPv4 technology. Previous attempts to address high performance network address translation required this end-customer to devote expensive carrier edge-routers.

 

The A10 Networks Solution: Our end-customer compared our carrier grade network address translation based on ACOS against an edge-router. Our end-customer reported that our CGN solution delivered more than double the overall performance required to fulfill their requirements at a better overall price-performance versus the incumbent edge-router supplier.

 

National Provider of Wireless Voice, Messaging and Data Services: The ADC Solution

 

The Problem: As demand for content-rich mobile web, voice, and video applications and services grew, our end-customer needed to upgrade the networks that serve their data centers to improve application performance and overall utilization. Our end-customer’s incumbent application delivery solution, or ADC, was unable to reliably or economically scale to support this growing set of applications and services.

 

The A10 Networks Solution: Our end-customer selected us through an established competitive process to replace the incumbent ADC solution in 20 data center locations based on our higher performance, our better scalability, our lower total cost of ownership, the significantly smaller footprint of our hardware, our migration services, and our simpler licensing model. In general, our end-customer reported that our ADC solution provided approximately double the price-performance over the incumbent solution enabling our end-customer to support growing customer demand for its rich web, voice and video content.

 

95


Table of Contents

One of the World’s Largest Web Hosting Providers: The ADC and DDoS Solution

 

The Problem: Our end-customer provides more than 12 million subscribers globally with reliable hosting services and solutions at a competitive price, allowing their subscribers to establish and host successful online businesses of many types. To effectively service their subscribers and keep pace with demand, our end-customer elected to replace its site hosting grid with a higher performance, more reliable, scalable and more cost effective data center and networking infrastructure. Our end-customer had several primary objectives in upgrading their network infrastructure: increase network speed, increase the number of subscribers that can be connected to their websites and protect against a growing set of customer threats. As a result, our end-customer required high performance application delivery controller capacity. This end-customer found that it was becoming more susceptible to large botnet attacks that were negatively affecting end-customer hosting performance through distributed denial of service, or DDoS, attacks. Our end-customer required a solution that could provide both ADC and DDoS solutions. When they were considering other solutions in the marketplace, their incumbent vendor exited the ADC market.

 

The A10 Networks Solution: Our end-customer evaluated multiple solutions in the marketplace and selected our ADC and TPS solutions. Our ADC and TPS solutions enabled our end-customer to deploy a higher capacity network that improved operational efficiency and security against DDoS attacks. Our ACOS-based solutions also allowed our end-customer to achieve greater scalability of customer traffic within their updated architecture. In addition, we also demonstrated our commitment to customer service by delivering special priority features quickly and reliably.

 

A Leading Professional Social Networking Website: The ADC Solution

 

The Problem: Our end-customer is a global social networking website for professionals. Due to their success in providing a premier site for professional social networking, their user base has grown rapidly. This growth caused them to expand their data centers and networking capacity to address demands for increased performance. The incumbent application delivery controller solution could not cost-effectively scale performance and had unacceptably low reliability resulting in outages and downtime that affected the customer experience on the end-customer’s mission critical websites. Our end-customer needed a scalable application delivery controller infrastructure to provide high performance to a growing set of users.

 

The A10 Networks Solution: Our ADC solution provided differentiated price performance and enabled our end-customer to connect many online professionals to their websites simultaneously. Our end-customer reported that this solution demonstrated approximately twice the Layer 4 connections per second performance, at higher than 35 Gbps of throughput at approximately half the cost of the incumbent solution. In addition, our simple, all-inclusive licensing approach and ease of migration from the incumbent solution provided a customer-friendly business solution.

 

SaaS Provider Use Case: The ADC Solution

 

The Problem: A top Software-as-a-Service company that provides online file sharing and cloud content management services was growing rapidly and needed to find an application networking solution that would ensure its mission critical applications were available to customers 24 hours a day, every day. To keep its business operational, our end-customer’s network must always run without its network failing or degrading due to spikes in network traffic. To meet this requirement, our end-customer researched application delivery controllers that offered higher performance, while being capital efficient.

 

The A10 Networks Solution: Our ADC solution was selected and deployed because it delivered overall better performance, higher reliability and a lower total cost of ownership. The end-customer selected our ADC solution based on ACOS’s ability to deliver higher feature functionality without performance degradation at a lower total cost than the competitive solution. With uptime as a key metric, our ADC solution enabled our end-customer to remove bottlenecks and to improve service to their end-customers.

 

96


Table of Contents

Backlog

 

As of December 31, 2012, June 30, 2013 and December 31, 2013, we had product backlog of approximately $1.6 million, $1.8 million and $12.0 million. Backlog represents orders confirmed with a purchase order for products to be shipped generally within 90 days to customers with approved credit status. Orders are subject to cancellation, rescheduling by customers and product specification changes by customers. Although we believe that the backlog orders are firm, purchase orders may be cancelled by the customer prior to shipment without significant penalty. For this reason, we believe that our product backlog at any given date is not a reliable indicator of future revenues.

 

Sales and Marketing

 

Sales. We sell our products globally to service providers and enterprises that depend on networks and data centers to generate revenue and manage operations efficiently. Our high-touch sales force engages directly or through indirect distribution channels with service providers and enterprises. Depending on size, geography, and complexity, some end-customer sales are originated and completed by our OEM and distribution channel partners with little or no direct engagement with our sales personnel. We fulfill nearly all orders globally through our distribution channel partners, which include distributors, value added resellers and system integrators. For the year ended December 31, 2013, 85% of our revenue was generated through our distribution channel partners. One distribution channel partner, NEC Corporation, accounted for 23%, 34% and 15% of our revenue in the years ended December 31, 2011, 2012 and 2013. One other distribution channel partner accounted for 11% of our revenue in the year ended December 31, 2011. Another distribution channel partner accounted for 10% of our revenue in the year ended December 31, 2013. We also work closely with OEM partners. For example, we partner with Ericsson in order to increase our reach into the service provider market. We believe that the network engineer or architect is the primary influencer within an organization that purchases our products. As such, we believe that our high-touch sales organization is unique given our deep focus on technology competence and partnership with our end-customers’ network engineers and architects. We believe this sales approach allows us to leverage the benefits of the channel, such as expanding our market coverage, as well as maintain face-to-face relationships with our end-customers.

 

Our sales team is comprised of inside sales and field sales personnel who are organized by geography and maintain sales presence in 23 countries, including in the following countries and regions: United States, Western Europe, Japan, China, Taiwan and South Korea. Our sales organization also includes sales engineers with deep technical domain expertise who are responsible for pre-sales technical support, solutions engineering for our end-customers, proof of concept work and technical training for our distribution channel partners. Our sales team is also comprised of a channel sales organization that is expanding our market reach through partners. We expect to continue to grow our sales headcount, including in geographies where we currently do not have a sales presence.

 

Our sales team objectives are to expand our end-customer base to new end-customers and to increase sales to existing end-customers through adoption of incremental products and services. We leverage our key strengths and attributes to collaborate with end-customers and demonstrate the value of our products in their network. For example, we demonstrate our solution functionality, performance and scale with well executed proof of concepts and evaluations. We believe that our customer support and responsiveness provides a differentiated experience for the end-customer and leads to retaining and expanding our end-customer base.

 

Marketing. Our marketing strategy is focused on building our brand and driving end-customer demand for our application networking products and services through channel marketing, direct marketing and corporate communications campaigns. Marketing activities include product and solution launches, demand generation, advertising, Website development, trade shows and conferences. We are also actively engaged in driving global thought leadership through industry analyst engagement, media out-reach, blogs and social media, and speaking events.

 

97


Table of Contents

Manufacturing

 

We outsource the manufacturing of our hardware products to original design manufacturers. This approach allows us to benefit from the scale and experience of our manufacturing partners to reduce our costs, overhead and inventory while allowing us to adjust more quickly to changing end-customer demand. Our manufacturers are Lanner Electronics Inc., or Lanner, and AEWIN Technologies Co., Ltd., or AEWIN. These companies manufacture and assemble our hardware products using design specifications, quality assurance programs and standards that we establish. Our manufacturers procure components and assemble our products based on our demand forecasts and purchase orders. These forecasts represent our estimates of future demand for our products based upon historical trends and analysis from our sales and product management functions as adjusted for overall market conditions. The component parts incorporated into our products are sourced either by our manufacturing partners or directly by us.

 

We have agreements with both Lanner and AEWIN pursuant to which they manufacture, assemble, and test our products. The Lanner agreement has an initial one year term and automatically renews for successive one-year terms unless either party gives notice that they do not want to renew the agreement. The AEWIN agreement has a three-year term ending July 2014. We do not have any long-term manufacturing contracts that guarantee us any fixed capacity or pricing. We perform quality assurance and testing at our San Jose, California facilities, as well as at our manufacturers’ locations. We warehouse and deliver our products out of our San Jose warehouse. We also outsource warehousing and delivery to a third-party logistics provider in some regions.

 

Research and Development

 

Our research and development effort is focused on developing new products and on enhancing and improving our existing products, leveraging our ACOS platform. Our engineering team works closely with end-customers and technology partners to identify future needs. A majority of our research and development team is focused on software development, with substantial experience in networking, network management, application delivery, performance optimization, security, software quality engineering and automation.

 

We believe that innovation and timely development of new features and products is essential to meeting the needs of our end-customer and improving our competitive position. We supplement our own research and development effort with open source technologies and technologies that we license from third parties. We test our products thoroughly to certify and ensure interoperability with third-party hardware and software products.

 

Our research and development expenses for the years ended December 31, 2011, 2012 and 2013 were $16.7 million, $25.5 million and $33.3 million. We plan to continue to invest in resources to conduct our research and development effort.

 

Competition

 

We operate in the intensely competitive application networking market that is characterized by constant change and innovation. Changes in application delivery needs, cyber security threats, and the technology landscape result in evolving customer requirements to address application performance and security. In addition to server load-balancing and other functions normally associated with application delivery, our solutions have expanded our addressable market into DDoS and CGN, where we compete with a number of companies not included among traditional ADC vendors. The agility and flexibility of the ACOS platform enables us to rapidly innovate and deploy solutions into adjacent markets to ADC. As a result, we believe the traditional definitions of our market do not encompass all of the features, functions and capabilities of our solutions, or accurately represent the addressable market.

 

The ADC, CGN and DDoS markets are characterized by a set of identifiable participants. We do not consider any of these markets to include a single dominant company, nor do we consider the markets to be fragmented.

 

98


Table of Contents

We believe that our main competitors fall into three categories:

 

   

Companies that sell products in the traditional ADC market. In the ADC market, we believe we are well established in this market and we compete against other companies that are well established in this market, including F5 Networks, Inc., Brocade Communications Systems, Inc., Cisco Systems, Inc., Citrix Systems, Inc., and Radware Ltd.

 

   

Companies that sell CGN products. Our purpose-built CGN solution competes primarily against products originally designed for other networking purposes, such as edge routers and security appliances from vendors such as Alcatel-Lucent USA Inc., Cisco Systems, Inc. and Juniper Networks, Inc.

 

   

Companies that sell traditional DDoS mitigation products. We are a new entrant into the DDoS market and first publicly launched our DDoS detection and mitigation solution, TPS, in January 2014. We believe our principle competitors in this market are Arbor Networks, Inc., a subsidiary of Danaher Corporation, and Radware.

 

We believe that the principal competitive factors in our markets include:

 

   

Ability to innovate and respond to customer needs rapidly;

 

   

Breadth and depth of product features and functionality;

 

   

Level of customer satisfaction;

 

   

Price performance and efficiency;

 

   

Ability for products to scale with high speed network traffic;

 

   

Flexible and agile design of products;

 

   

Ability to detect and mitigate large-scale cyber security threats;

 

   

Ability to accommodate any IT delivery model or combination of models, regardless of form factor;

 

   

Brand awareness and reputation; and

 

   

Strength of sales and marketing efforts.

 

We believe we compete favorably with our competitors as a result of the quality of our products, the price performance of our solutions, the rich and comprehensive features and functionalities offered by our platform, our differentiated customer support offerings and our close and on-going relationship with our end-customers. However, many of our competitors have substantially greater financial, technical and other resources, greater name recognition, larger sales and marketing budgets, broader distribution, and larger and more mature intellectual property portfolios.

 

Intellectual Property

 

Our key assets include, among others, our technology and associated intellectual property rights. In particular, as of December 31, 2013, we had 33 issued patents and 41 patent applications pending in the United States relating to our next-generation application delivery controllers and platform. Our issued U.S. patents, excluding an older set of 15 patents that we acquired, expire between 2026 and 2031. We have 17 issued patents and 34 patent applications pending overseas. We license software from third parties for development of or integration into our products, including proprietary and open source software. We pursue registration of our trademarks and domain names in the United States and other jurisdictions.

 

Our success depends in part upon our ability to secure, protect and enforce our intellectual property rights and core technology. We rely on a combination of intellectual property laws and contractual and physical confidentiality and security restrictions to secure and protect our intellectual property rights and to restrict access to, use of, and disclosure of, our technology and confidential information. We endeavor to enter into agreements

 

99


Table of Contents

with our employees, contractors and third parties with whom we do business to limit access to and disclosure of our confidential information and to secure our rights in any technology developed by such parties for us. Despite our efforts to protect our intellectual property rights, unauthorized parties may attempt to copy or otherwise obtain and use our products or technology.

 

Monitoring unauthorized use of our products is difficult, and we cannot be certain that the steps we have taken will prevent misappropriation of our technology, particularly in foreign countries where the laws may not protect our intellectual property rights as fully as in the United States. Our industry is characterized by the existence of a large number of patents and frequent claims and related litigation regarding patent and other intellectual property rights. From time to time, we may be involved in disputes and licensing discussions with others regarding their claimed intellectual property rights and cannot provide assurance that we will always successfully defend ourselves against such claims or license technology on terms that we believe to be acceptable. As we have gained greater visibility, market exposure and competitive success, we face a higher risk of being the subject of intellectual property infringement claims. If we are found to infringe the intellectual property rights of others, or if we otherwise settle such claims, we could be compelled to pay damages or royalties and either obtain a license to those intellectual property rights or alter our products so that they no longer infringe upon such proprietary rights. Any license could be very expensive to obtain or may not be available at all. Similarly, changing our products or processes to avoid infringing upon the rights of others may be costly or impractical. Any of these claims, whether claims that we are infringing the proprietary rights of others, or vice versa, with or without merit, may be time-consuming, result in costly litigation and diversion of technical and management personnel or require us to cease using infringing technology, develop non-infringing technology or enter into royalty or licensing agreements. Further, our commercial agreements typically require us to indemnify our customers, distributors and resellers for infringement actions related to our technology, which could cause us to become involved in infringement claims made against our customers, distributors or resellers.

 

Employees

 

As of December 31, 2013, we had 591 full-time employees, including 263 engaged in research and development and customer support, 262 in sales and marketing and 66 in general and administrative and other activities. None of our employees is represented by a labor union or is a party to any collective bargaining arrangement in connection with his or her employment with us. We have never experienced any work stoppages, and we consider our relations with our employees to be good.

 

Facilities

 

Our corporate headquarters is located in San Jose, California, where we currently lease 79,803 square feet of space under a lease agreement that expires in February 2020. We lease an additional 29,230 square feet of space in San Jose under a lease agreement that expires in January 2016. We also lease space for offices internationally and for sales offices in locations throughout the United States and various international locations, including China, Japan and Taiwan. We believe that our current facilities are adequate to meet our current needs. We intend to expand our facilities or add new facilities as we add employees and enter new geographic markets. We believe that alternative or additional space suitable for our requirements will be available as needed to accommodate ongoing operations and any such growth. We do however expect to incur additional expenses in connection with any such new or expanded facilities.

 

Legal Proceedings

 

In May 2013, Radware filed suit against us for patent infringement in the United States District Court for the Northern District of California. In this lawsuit, Radware accuses our AX and EX products of directly and indirectly infringing three Radware patents related to link load balancing technology. Radware is seeking injunctive relief, damages, and attorneys’ fees and costs. Radware currently asserts we willfully infringe one of the three asserted patents. We have filed an answer to Radware’s claims, as well as counterclaims, in which we

 

100


Table of Contents

deny directly, indirectly or willfully infringing any of Radware’s patents and assert that Radware’s patents are not valid and enforceable.

 

In September 2013, the court issued a pre-claim construction discovery order and tentatively set a date for a hearing to construe the disputed terms of Radware’s asserted patents in February 2014. The claim construction hearing date has now been extended to April 2014. As of the date hereof, no trial date has been set in the matter, and the parties are in the process of conducting discovery. We intend to defend ourselves vigorously against Radware’s allegations.

 

In November 2013, Parallel Networks, LLC, or Parallel Networks, which we believe is a non-practicing patent holding company, filed a lawsuit against us in the United States District Court for the District of Delaware. In the lawsuit, Parallel Networks alleges that our AX and Thunder series products infringe two of their U.S. patents, both titled “Method and System for Uniform Resource Locator Transformation.” Parallel Networks is seeking injunctive relief, damages and costs. On January 13, 2014 we filed an answer to Parallel Networks’ claims, as well as counterclaims, in which we deny directly, indirectly or willfully infringing any of Parallel Networks’ patents and assert that Parallel Networks’ patents are invalid. Parallel Networks has asserted similar claims against numerous other companies, including Array Networks, Inc., Barracuda Networks, Inc., Brocade Communications Systems, Inc., Cisco Systems, Inc., Citrix Systems, Inc., F5 Networks, Inc., Radware, Ltd., Riverbed Technology, Inc. and SAP AG. This matter is in its earliest stages and no case schedule or trial date has been set. We intend to defend ourselves vigorously against Parallel Networks’ allegations.

 

In addition, from time to time, we are a party to litigation and subject to claims incident to the ordinary course of business. Although the results of litigation and claims cannot be predicted with certainty, we currently believe that the final outcome of these ordinary course matters will not have a material adverse effect on our business. Regardless of the outcome, litigation can have an adverse impact on us because of defense and settlement costs, diversion of management resources and other factors.

 

101


Table of Contents

MANAGEMENT

 

Executive Officers and Directors

 

The following table provides information regarding our executive officers and directors, and their ages as of January 31, 2013:

 

Name

   Age   

Position(s)

Lee Chen

   60   

Chief Executive Officer, President and Director

Rajkumar Jalan

   52   

Chief Technology Officer

Greg Straughn

   56   

Chief Financial Officer

Robert Cochran

   56   

Vice President, Legal and Corporate Collaboration and Secretary, and Director

Jason Matlof

   44   

Vice President of Worldwide Marketing

Ray Smets

   50   

Vice President of Worldwide Sales

Peter Y. Chung (1)(2)(3)

   46   

Director

Alan S. Henricks (1)(2)(3)

   63   

Director

Phillip J. Salsbury (1)(2)(3)

   71   

Director

 

(1)   Member of our audit committee
(2)   Member of our compensation committee
(3)   Member of our nominating and governance committee

 

Executive Officers

 

Lee Chen has served as our President, Chief Executive Officer and as a member of our board of directors since July 2004. From 1996 to August 2004, Mr. Chen served in a variety of positions, including as Vice President of Software Engineering and Quality Assurance at Foundry Networks, Inc., a company that designed, manufactured and sold high-end enterprise and service provider switches and routers, as well as wireless, security, and traffic management solutions. Mr. Chen has previously held management and senior technical positions at OTS, Apple Computer, Convergent Technologies, Inc. and InSync Group, and was a co-founder of Centillion Networks, Inc. Mr. Chen has an M.S.E.E. from San Jose State University and a B.S. in Electrophysics from National Chiao-Tung University in Taiwan. Mr. Chen is a technology pioneer, especially in the area of Internet Protocol Multicast and System & System Security and holds numerous patents. Mr. Chen has specific attributes that qualify him to serve as a member of our board of directors, including the perspective and experience he brings as our Chief Executive Officer and President, one of our founders and a significant stockholder.

 

Rajkumar Jalan has served as our Chief Technology Officer since November 2008. From 2005 to 2008, he served as a consultant to the Company. From 1996 to 2002, Mr. Jalan served in various capacities, including as a Director of IP Routing, for Foundry Networks, Inc., a company that designed, manufactured and sold high-end enterprise and service provider switches and routers, as well as wireless, security, and traffic management solutions. Before Foundry, he worked on a wide range of networking technologies from Ethernet, Token-Ring, ATM and Digital Switching Systems. Mr. Jalan’s prior employers included Bay Networks, Inc. and Network Equipment Technologies Inc. Mr. Jalan holds a number of patents related to Layer 2/Layer 3 as well as Layer 4/Layer 7 switching. He has a B.Tech from the Indian Institute of Technology Bombay.

 

Greg Straughn has served as our Chief Financial Officer since July 2011 and brings to us more than 30 years of executive leadership and financial expertise. From September 1998 to June 2010, Mr. Straughn served as the Chief Financial Officer for Kabira Technologies, Inc., a provider of high-performance software

 

102


Table of Contents

products to the telecommunications and financial services market. During his tenure at Kabira, Mr. Straughn was instrumental in helping grow the company from startup through its eventual acquisition by Tibco Software, Inc. Previously, he served as the Chief Financial Officer of AT&T, Inc./Pacific Bell Internet Services, Inc., an Internet company, Principal and General Manager for Meridian Business Systems, and the Chief Financial Officer of PacTel Finance. Mr. Straughn has a B.S. in Finance from the University of California at Berkeley and is the author of two books on financial and general management of small businesses.

 

Robert Cochran has served as our Vice President, Legal and Corporate Collaboration since January 2012 and as a member of our board of directors since April 2012. Mr. Cochran has served as our Secretary since August 2004, and previously served on our board of directors from August 2004 to October 2004. From January 1993 to January 2012, Mr. Cochran was an attorney in private practice in Woodside, California, where he had served as our outside legal counsel since our incorporation. From 2004 to 2010, Mr. Cochran served as a director of Techwell, Inc., a fabless semiconductor public company that was acquired by Intersil Corporation. Mr. Cochran also serves as a director of one privately held company. Mr. Cochran has a J.D. from Harvard Law School and an A.B. from Harvard University. Mr. Cochran has specific attributes that qualify him to serve as a member of our board of directors, including the perspective and experience he has acquired from counseling growth companies over the last thirty years, and his prior service as a director of a public company.

 

Jason Matlof has served as our Vice President of Worldwide Marketing since September 2013. Prior to joining us, from August 2012 to September 2013, Mr. Matlof was Vice President of Marketing at Big Switch Networks, Inc., a software-defined networking company. From January 2005 to August 2012, Mr. Matlof was a partner at Battery Ventures, L.P., a venture capital firm that invests principally in technology markets. From 2001 to 2005, Mr. Matlof served as Vice President of Marketing and Business Development at Neoteris, Inc., a network security company. Mr. Matlof started his career in the mid-1990s at Cisco Systems, Inc., a designer and manufacturer of computer networking devices. Mr. Matlof has an M.B.A. from Harvard Business School and a B.A. with honors from University of California at Los Angeles.

 

Ray Smets has served as our Vice President of Worldwide Sales since July 2013. From December 2011 to July 2013, Mr. Smets was Senior Vice President of Field Operations, Sales and International Development for Metaswitch Networks, Inc, a telecommunications company. From December 2008 to November 2011, he was Vice President and General Manager at Cisco Systems, Inc., a designer and manufacturer of computer networking devices. From September 2007 to August 2008, Mr. Smets was Executive Vice President of Sales and Marketing for Packeteer Inc., an application classification and traffic prioritization systems provider. Mr. Smets has also held executive positions at Netopia Inc., a provider of carrier-class broadband customer premise equipment, McAfee Security, Inc., a security software company, and Bellsouth Telecommunications/AT&T, Inc., a telecommunications company. Mr. Smets has an M.B.A. from Nova-Southeastern University, and a B.S. in Computer Engineering from the University of Florida, and is an alumnus of the Stanford University Executive Program.

 

Non-Employee Directors

 

Peter Y. Chung  has served as a member of our board of directors since June 2013. Mr. Chung is a managing director and member of various entities affiliated with Summit Partners, L.P., where he has been employed since 1994. He is currently a director of M/A-COM Technology Solutions Holdings, Inc., a provider of semiconductor solutions for use in radio frequency, microwave and millimeter wave applications, as well as several privately-held companies. Previously, Mr. Chung served as a director of iPayment, Inc., a payment processing company, NightHawk Radiology Holdings, Inc., a provider of teleradiology services, SeaBright Holdings, Inc., a specialty workers’ compensation insurer, Sirenza Microdevices, Inc., an RF components company and Ubiquiti Networks, Inc., a company that develops networking technology. Mr. Chung has an M.B.A. from the Stanford University Graduate School of Business and a A.B. in Economics from Harvard University. Mr. Chung has specific attributes that qualify him to serve as a member of our board of directors, including his experience in investment banking, private equity and venture capital investing and in the communications technology sector, as well as his prior service on public and private company boards.

 

103


Table of Contents

Alan S. Henricks has served as a member of our board of directors since March 2014. Since April 2010 he has served as a member of the board of directors of Ellie Mae, Inc. (NYSE: ELLI), a SaaS Company, and as its lead independent director since November 2012. Since May 2012 he has served as a member of the board of directors and audit committee chairman of Roku, Inc., a consumer electronics company. From May 2009 to the present, Mr. Henricks has been a board member, advisor and consultant to a variety of private technology companies. His consulting CFO roles included Livescribe Inc., Santur Corporation and AcademixDirect, Inc. From September 2006 to May 2009, Mr. Henricks served as Chief Financial Officer of Pure Digital Technologies, Inc. Prior to September 2006, Mr. Henricks served as Chief Financial Officer of several private and public companies including Traiana Inc., Informix Software, Inc., Documentum, Inc., Borland International, Inc., Cornish & Carey and Maxim Integrated Products, Inc. Mr. Henricks holds a Bachelor of Science in Engineering from the Massachusetts Institute of Technology and a Master of Business Administration from Stanford University. Mr. Henricks has specific attributes that qualify him to serve as a member of our board of directors, including his extensive experience serving as chief financial officer of both public and private companies, as well as his prior service on public and private company boards.

 

Dr. Phillip J. Salsbury has served as a member of our board of directors since May 2013. From 2005 to April 2010, Dr. Salsbury served as a director of Techwell, Inc., a fabless semiconductor public company that was acquired by Intersil Corporation. Dr. Salsbury was a founder, the Chief Technology Officer, and later the president and Chief Executive Officer of SEEQ Technology, Inc., a non-volatile memory and Ethernet communications semiconductor company, from January 1981 until its acquisition by LSI Logic Corporation, a large semiconductor company, in June 1999. He holds a Ph.D and an M.S. in Electrical Engineering from Stanford University and a B.S. in Electrical Engineering from the University of Michigan. Dr. Salsbury has specific attributes that qualify him to serve as a member of our board of directors, including his strong technical background and management experience as chief executive officer of a public company, and his prior service as a director of a public company.

 

Our executive officers are appointed by our board of directors and serve until their successors have been duly elected and qualified.

 

There are no family relationships among any of our directors or executive officers.

 

Codes of Business Conduct and Ethics

 

Our board of directors has adopted a code of business conduct and ethics that applies to all of our employees, officers and directors, including our Chief Executive Officer, Chief Financial Officer, and other executive and senior financial officers. The full text of our codes of business conduct will be posted on the investor relations section of our website. The reference to our website address in this prospectus does not include or incorporate by reference the information on our website into this prospectus. We intend to disclose future amendments to certain provisions of our codes of business conduct, or waivers of these provisions, on our website or in public filings.

 

Board Composition

 

Our board of directors currently consists of five members. Our bylaws to be in effect following the completion of this offering will permit our board of directors to establish by resolution the authorized number of directors. Our board of directors is currently composed of Lee Chen, Robert Cochran, Peter Y. Chung, Alan S. Henricks and Phillip J. Salsbury.

 

Each director’s term continues until the election and qualification of his successor, or his earlier death, resignation, or removal.

 

Director Independence

 

Upon the completion of this offering, our common stock will be listed on the New York Stock Exchange. Under the rules of the New York Stock Exchange, independent directors must comprise a majority of a listed

 

104


Table of Contents

company’s board of directors within a specified period of the completion of this offering. In addition, the rules of the New York Stock Exchange require that, subject to specified exceptions, each member of a listed company’s audit, compensation, and nominating and corporate governance committees be independent. Under the rules of the New York Stock Exchange, a director will only qualify as an “independent director” if, in the opinion of that company’s board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. Audit committee members must also satisfy the independence criteria set forth in Rule 10A-3 under the Securities Exchange Act of 1934, as amended.

 

In order to be considered independent for purposes of Rule 10A-3, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors, or any other board committee: (i) accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries; or (ii) be an affiliated person of the listed company or any of its subsidiaries.

 

Our board of directors has undertaken a review of the independence of each director to determine whether each director has a material relationship with us that could compromise his ability to exercise independent judgment in carrying out his responsibilities, and determined that each of Messrs. Chung, Henricks and Salsbury, representing three of our five directors, were “independent directors” as defined under the applicable rules and regulations of the SEC and the listing requirements and the rules of the New York Stock Exchange.

 

As of the completion of this offering, our certificate of incorporation and bylaws will provide for a classified board of directors consisting of three classes of directors, each serving staggered three year terms, as follows:

 

   

the Class I director will be Mr. Salsbury, and his term will expire at the annual meeting to be held in 2015;

 

   

the Class II directors will be Messrs. Chung and Cochran, and their terms will expire at the annual meeting to be held in 2016; and

 

   

the Class III directors will be Messrs. Chen and Henricks, and their terms will expire at the annual meeting to be held in 2017.

 

Upon expiration of the term of a class of directors, directors for that class will be elected for three-year terms at the annual meeting of stockholders in the year in which that term expires. Each director’s term continues until the election and qualification of his successor, or his earlier death, resignation or removal. Any increase or decrease in the number of directors will be distributed among the three classes so that, as nearly as possible, each class will consist of one-third of the directors. This classification of our board of directors may have the effect of delaying or preventing changes in control of our company.

 

Committees of the Board of Directors

 

Our board of directors has an audit committee, a compensation committee, and a nominating and corporate governance committee, each of which will have the composition and responsibilities described below. Members serve on these committees until their resignation or until otherwise determined by our board of directors. Our board of directors has adopted a charter for each of these committees, which complies with the applicable requirements of current New York Stock Exchange rules. We intend to comply with future requirements to the extent they are applicable to us. Following the completion of this offering, copies of the charters for each committee will be available on the investor relations portion of our website.

 

105


Table of Contents

Audit Committee

 

Our audit committee is comprised of Messrs. Chung, Henricks and Salsbury, each of whom is a non-employee member of our board of directors. Mr. Henricks is the chair of our audit committee. Our board of directors has determined that each of the members of our audit committee satisfies the requirements for financial literacy under the rules and regulations of the New York Stock Exchange and the SEC. Our board of directors has also determined that Mr. Henricks qualifies as an “audit committee financial expert” as defined in the SEC rules and satisfies the financial sophistication requirements of the New York Stock Exchange. The audit committee operates under a written charter that satisfies the applicable standards of the SEC and the New York Stock Exchange.

 

The audit committee is responsible for, among other things:

 

   

selecting and hiring our registered public accounting firm;

 

   

evaluating the performance and independence of our registered public accounting firm;

 

   

approving the audit and pre-approving any non-audit services to be performed by our registered public accounting firm;

 

   

reviewing our financial statements and related disclosures and reviewing our critical accounting policies and practices;

 

   

reviewing the adequacy and effectiveness of our internal control policies and procedures and our disclosure controls and procedures;

 

   

overseeing procedures for the treatment of complaints on accounting, internal accounting controls, or audit matters;

 

   

reviewing and discussing with management and the independent registered public accounting firm the results of our annual audit, our quarterly financial statements, and our publicly filed reports;

 

   

reviewing and approving in advance any proposed related person transactions; and

 

   

preparing the audit committee report that the SEC requires in our annual proxy statement.

 

Compensation Committee

 

Our compensation committee consists of Messrs. Chung, Henricks and Salisbury. Mr. Chung is the chairman of our compensation committee. Our board of directors has determined that each member of this committee is a non-employee director, as defined pursuant to Rule 16b-3 promulgated under the Exchange Act, and an outside director, as defined under Section 162(m) of the Internal Revenue Code of 1986, as amended, or Section 162(m).

 

The compensation committee is responsible for, among other things:

 

   

reviewing and approving our Chief Executive Officer’s and other executive officers’ annual base salaries, incentive compensation plans, including the specific goals and amounts, equity compensation, employment agreements, severance arrangements and change in control agreements, and any other benefits, compensation or arrangements;

 

   

administering our equity compensation plans;

 

   

overseeing our overall compensation philosophy, compensation plans, and benefits programs; and

 

   

preparing the compensation committee report that the SEC will require in our annual proxy statement.

 

106


Table of Contents

Nominating and Corporate Governance Committee

 

Our nominating and corporate governance committee consists of Messrs. Chung, Henricks and Salsbury, each of whom is a non-employee member of our board of directors. Mr. Salsbury is the chairman of our nominating and corporate governance committee. Our board of directors has determined that each member of our nominating and corporate governance committee meets the requirements for independence under the rules of the New York Stock Exchange. The nominating and corporate governance committee is responsible for, among other things:

 

   

evaluating and making recommendations regarding the composition, organization, and governance of our board of directors and its committees;

 

   

evaluating and making recommendations regarding the creation of additional committees or the change in mandate or dissolution of committees;

 

   

reviewing and making recommendations with regard to our corporate governance guidelines and compliance with laws and regulations; and

 

   

reviewing and approving conflicts of interest of our directors and corporate officers, other than related person transactions reviewed by the audit committee.

 

Our board of directors may from time to time establish other committees.

 

Compensation Committee Interlocks and Insider Participation

 

Messrs. Chung, Henricks and Salsbury are members of our compensation committee. None of the members of our compensation committee is or has been one of our officers or employees. None of our executive officers currently serves, or in the past year has served, as a member of the compensation committee or director (or other board committee performing equivalent functions or, in the absence of any such committee, the entire board of directors) of any entity that has one or more executive officers serving on our compensation committee or our board of directors. As described under the section captioned “Certain Relationships and Related Party Transactions—Investor Offer,” between June 2013 and September 2013, funds affiliated with Summit Partners, L.P., which hold more than 5% of our outstanding capital stock and one of whose managing directors, Peter Y. Chung, is a member of our board of directors and a compensation committee member, purchased redeemable convertible preferred stock from us. We have described the amounts of the sales and purchases, which occurred prior to Mr. Chung joining our board of directors, under the section captioned “Certain Relationships and Related Party Transactions—Private Placements.”

 

Non-Employee Director Compensation

 

In 2013, we paid Mr. Salsbury cash compensation of $16,580. Other than with respect to Mr. Salsbury, our non-employee directors do not currently receive any cash compensation for their services as directors or as board committee members other than reimbursement of reasonable travel and related expenses incurred by non-employee directors in connection with their attendance at meetings of the board of directors and its committees.

 

On July 23, 2013, Mr. Salsbury was granted an option to purchase 40,000 shares of common stock at an exercise price per share of $6.19. This option vests monthly as to 1/48 th of the total number of shares issued pursuant to the exercise of the option, subject to such Mr. Salsbury’s continued service to us on each such vesting date. Mr. Salsbury early exercised this option in full.

 

107


Table of Contents

In connection with this offering, our board of directors intends to approve the following annual compensation package for our non-employee directors:

 

     Annual  Cash
Retainer
 

Annual retainer

   $ 30,000   

Additional retainer for audit committee chair

   $ 20,000   

Additional retainer for audit committee member

   $ 7,500   

Additional retainer for compensation committee chair

   $ 12,000   

Additional retainer for compensation committee member

   $ 5,000   

Additional retainer for nominating and governance committee chair

   $ 7,500   

Additional retainer for nominating and governance committee member

   $ 3,500   

Additional retainer for non-executive chairman of the board of directors

   $ 30,000   

Additional retainer for outside lead director

   $ 15,000   

 

In addition, each non-employee director who first joins us will be granted an initial equity award with a value of $225,000 and each non-employee director will be granted an annual equity award with a value of $150,000 on each of our annual stockholder meetings. However, a continuing non-employee director who, as of the date of our annual stockholder meeting, has not served as a board member for the entire 12 month period prior to the annual stockholder meeting will receive an annual award with a value that is prorated based on the number of months the director served during the prior year. The initial and annual awards will be granted in the form of restricted stock units, and the number of shares to be granted pursuant to such awards will be determined by the closing price of our shares on the grant date. However, a non-employee director who is not continuing as a director following an annual stockholder meeting will not receive an annual award at such meeting.

 

The initial award will vest in three equal, annual installments from the date the non-employee director joins our board of directors, subject to continued service as a board member through each such date. Each annual award will vest as to 100% of the underlying shares on the earlier of the one year anniversary of the award’s grant date or the date of our next annual stockholder meeting, subject to continued service as a board member through such date.

 

108


Table of Contents

EXECUTIVE COMPENSATION

 

2013 Summary Compensation Table

 

The following table provides information regarding the compensation of our principal executive officer and each of our other named executive officers as required by Item 402(m)(2) of Regulation S-K during our fiscal year ended December 31, 2013. The individuals who served as our named executive officers for our 2013 fiscal year are referred to herein as our Named Executive Officers, or NEOs.

 

Name and Principal Position

   Year      Salary ($)      Bonus
($)
     Option
Awards
($) (1)
     All Other
Compensation
($) (2)
     Total ($)  

Lee Chen (3)

President and Chief Executive Officer

     2013                               $ 6       $ 6   

Greg Straughn

Chief Financial Officer

     2013       $ 252,500       $ 67,000       $ 711,900       $ 443       $ 1,031,843   

Rajkumar Jalan

Chief Technology Officer

     2013       $ 158,333       $ 40,000       $ 734,500       $ 420       $ 933,253   

 

(1)   The amount reported in the Option Awards column represents the grant date fair value of the stock option award as computed in accordance with FASB ASC Topic 718. The assumptions used in calculating the grant date fair value of the stock option award reported in this column are set forth in the notes to our audited consolidated financial statements included in this prospectus. As required by the rules of the SEC, the amount shown excludes the impact of estimated forfeitures related to service-based vesting conditions. Note that the amount reported in this column does not correspond to the actual economic value that may be received by the NEO from the award.
(2)   The amount reported represents group term life insurance premiums paid on behalf of the executive.
(3)   Other than with respect to the life insurance benefits described above, Mr. Chen did not receive compensation as our President and Chief Executive Officer, or CEO, for our 2013 fiscal year. For our 2013 fiscal year, Mr. Chen reimbursed us for the employee portion of his premiums for medical, dental and vision coverage benefits.

 

Non-Equity Incentive Plan Compensation

 

For our 2013 fiscal year, Messrs. Straughn and Jalan were eligible to receive bonuses. The bonus opportunities were performance based but were not subject to any pre-specified performance criteria. Prior to the completion of the fiscal year, our CEO reviewed each of Mr. Straughn and Mr. Jalan’s performance during the year and recommended bonus amounts to our board of directors and compensation committee. The bonuses as recommended were approved and paid in late 2013. For the 2013 fiscal year, Mr. Straughn received a bonus of $67,000 and Mr. Jalan received a bonus of $40,000.

 

2013 Outstanding Equity Awards at Year-End

 

Named Executive Officer

   Grant
Date (1)
    Option
Awards—
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
    Option
Awards—
Number of
Securities
Underlying
Unexercised
Option (#)
Unexercisable (2)
     Option
Awards—
Option
Exercise
Price Per
Share ($)
     Option
Awards—
Option
Expiration
Date
 

Lee Chen

                                     

Greg Straughn

     7/1/2011 (3)       83,333        50,000       $ 3.00         6/30/2021   
     7/1/2011 (3)       109,333 (4)             $ 3.00         6/30/2021   
     10/24/2013 (5)       6,999        161,001       $ 8.51         10/23/2023   

Rajkumar Jalan

     4/27/2011 (6)       21,333 (4)             $ 3.00         4/26/2021   
     2/6/2013 (7)       11,000        37,000       $ 5.78         2/5/2023   
     10/24/2013 (5)       7,221        166,111       $ 8.51         10/23/2023   

 

(1)   Each of the outstanding stock option awards was granted under our 2008 Stock Plan.

 

109


Table of Contents
(2)   In the event that we terminate the NEO’s employment without cause or the NEO resigns for good reason at any time during the period beginning on the date that we enter into an agreement resulting in our change in control and ending on the date 12 months after the change in control, the award will accelerate vesting in full as provided under the terms of each NEO’s Change in Control and Severance Agreement dated December 1, 2013.
(3)   One-fourth (1/4) of the shares of our common stock subject to the stock option award vested on June 27, 2012, and the balance vests in 36 successive, equal, monthly installments thereafter, subject to continued service with us through each applicable vesting date.
(4)   The stock option award is subject to an early exercise provision and is immediately exercisable. Any early-exercise option shares are subject to repurchase by us at the original exercise price, provided that our repurchase right lapses in accordance with the stock option award’s vesting schedule.
(5)   One-forty-eighth (1/48) of the shares of our common stock subject to the stock option award vests in 48 successive, equal, monthly installments (with the first installment having vested on November 24, 2013), subject to continued service with us through each applicable vesting date.
(6)   Two-fifths (2/5) of the shares of our common stock subject to the stock option award vested on April 29, 2012, and the balance vests in 18 successive, equal, monthly installments thereafter, subject to continued service through each applicable vesting date.
(7)   One-forty-eighth (1/48) of the shares of our common stock subject to the stock option award vests in 48 successive, equal, monthly installments (with the first installment having vested on February 1, 2013), subject to continued service with us through each applicable vesting date.

 

Executive Employment Agreements

 

Offer Letters

 

We have entered into offer letters with each of our NEOs.

 

Lee Chen . Under Mr. Chen’s offer letter dated July 30, 2004, we hired Mr. Chen as our CEO. The letter provided for no base salary for Mr. Chen and an initial equity award grant to be determined. Mr. Chen’s current annual base salary is $0.

 

Greg Straughn . Under Mr. Straughn’s offer letter dated May 31, 2011, we hired Mr. Straughn as our Chief Financial Officer. The letter provided for Mr. Straughn’s initial base salary and bonus opportunity, plus an initial option grant covering 242,666 shares which vested as to one-fourth of the shares on June 27, 2012, and the balance is scheduled to vest in 36 successive, equal, monthly installments thereafter, subject to his continued service with us through each applicable vesting date. His award is eligible for accelerated vesting under his Change in Control and Severance Agreement, described below. Mr. Straughn’s current annual base salary is $265,000.

 

Raj Jalan . Under Mr. Jalan’s offer letter dated November 3, 2008, we hired Mr. Jalan as our Chief Technology Officer. The letter provided for Mr. Jalan’s initial base salary and initial equity award grant. Mr. Jalan’s current annual base salary is $200,000.

 

Change in Control and Severance Agreements

 

We entered into a Change in Control and Severance Agreement (each, an “Agreement” and together, the “Agreements”) with each of our NEOs effective December 1, 2013.

 

Each NEO’s Agreement provides that if, after the executive completes at least one year of employment with us and (a) we terminate the executive’s employment with us for any reason other than for cause and not due to the executive’s death or disability, or (b) the executive resigns for Good Reason (as defined in the Agreement), and in each case the termination does not occur during the Change in Control Period (as defined in the Agreement), the executive will receive the following severance benefits: (i) continuing payments of salary severance for a period of 12 months (in the case of Mr. Chen) or nine months (in the case of the other NEOs), and (ii) continuing payments to reimburse the executive for COBRA continuation coverage for a period of up to 12 months (in the case of Mr. Chen) or nine months (in the case of the other NEOs).

 

Each Agreement further provides that if we terminate the executive’s employment with us for any reason other than cause and not due to the executive’s death or disability, or the executive resigns for Good Reason, and in each case the termination occurs during the Change in Control Period, the executive will receive the following

 

110


Table of Contents

severance benefits: (i) a lump sum cash payment equal to 150% (in the case of Mr. Chen) or 100% (in the case of the other NEOs) of the greater of the executive’s salary in effect as of immediately prior to his employment termination or the Change in Control, (ii) a lump sum cash payment equal to 150% (in the case of Mr. Chen) or 100% (in the case of the other NEOs) of the greater of the executive’s target bonus in effect for the year in which the executive’s employment terminates or the Change in Control occurs, (iii) continuing payments to reimburse the executive for COBRA continuation coverage for a period of up to 18 months (in the case of Mr. Chen) or 12 months (in the case of the other NEOs), and (iv) 100% accelerated vesting of the executive’s outstanding equity awards, with any applicable performance goals considered achieved at the target levels.

 

In order to receive the severance benefits under the Agreement, the executive must sign and not revoke a release of claims in our favor and comply with confidentiality obligations.

 

As defined in the Agreements, “Cause” generally means the executive’s (i) repeated failure to perform his duties and responsibilities to the Company or abide in all material respects with the Company’s policies after receiving written notice, (ii) engagement in illegal conduct injurious to the Company in any material respect, (iii) material violation or material breach of his confidential information and invention agreement with the Company that is not cured within 20 days of written notice or is incapable of cure, or (iv) conviction or plea of no contest to a felony (other than motor vehicle offenses that do not materially impair the executive’s performance of his employment duties) or any crime involving fraud, embezzlement or other offense involving moral turpitude, and/or committing any act of embezzlement, dishonesty or fraud against or the misappropriation of material property belonging to the Company.

 

As defined in the Agreements, “Change in Control Period” generally means, subject to the occurrence of a Change in Control, the period beginning on the date that an agreement to enter into such Change in Control is signed and executed, and ending on the date 12 months following such Change in Control. As will be defined in the Agreements, “Change in Control” generally means the occurrence of any of the following events: (i) a change in our ownership that occurs on the date that any one person or persons acting as a group (“Person”), acquires ownership of our stock that, together with the stock already held by such Person, constitutes more than 50% of the total voting power of our stock; or (ii) a change in our effective control that occurs on the date that a majority of members of our board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of our board of directors prior to the date of the appointment or election; or (iii) a change in the ownership of a substantial portion of our assets that occurs on the date that any Person acquires (or has acquired during a 12-month period) assets from us with a total gross fair market value equal to or more than 50% of the total gross fair market value of all of our assets immediately prior to such acquisition(s), excluding any transfer to an entity that is controlled by our stockholders immediately after the transfer and any transfer of assets by us to an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by us. For purposes of this definition, gross fair market value means the value of our assets, or the value of our assets being disposed of, determined without regard to any liabilities associated with such assets.

 

As defined in the Agreements, “Good Reason” generally means the executive’s voluntary termination of employment with us within 90 days following the expiration of our cure period following one or more of the following occurring without the executive’s prior consent: (i) a material reduction in the executive’s gross base salary other than in connection with a similar reduction for all similarly-situated employees; (ii) a material reduction in the executive’s authority, duties, or responsibilities; or (iii) a relocation of the executive’s principal place of work to a location that is more than 50 miles from his current principal work site for us. The executive may not resign for Good Reason without first providing us with notice within 60 days of the initial existence of the condition that he believes constitutes Good Reason identifying the grounds for Good Reason and a reasonable cure period of at least 30 days following the date of such notice, during which such grounds must not have been cured.

 

111


Table of Contents

Employee Benefit and Stock Plans

 

2014 Equity Incentive Plan

 

In March 2014, our board of directors adopted, and our stockholders approved, our 2014 Equity Incentive Plan, referred to as our 2014 Plan. The 2014 Plan will be effective immediately prior to the completion of this offering and is not expected to be utilized until after the completion of this offering. Our 2014 Plan provides for the grant of incentive stock options, within the meaning of Section 422 of the Internal Revenue Code, to our employees and any of our parent and subsidiary corporations’ employees, and for the grant of nonstatutory stock options, restricted stock, restricted stock units, stock appreciation rights, performance units and performance shares to our employees, directors and consultants, and our parent and subsidiary corporations’ employees and consultants.

 

Authorized Shares . A total of 7,700,000 shares of our common stock are reserved for issuance pursuant to the 2014 Plan, of which no awards are issued and outstanding. The number of shares available for issuance under the 2014 Plan also will include an annual increase on the first day of each fiscal year beginning in 2015, equal to the least of:

 

   

8,000,000 shares;

 

   

5% of the outstanding shares of common stock as of the last day of our immediately preceding fiscal year; or

 

   

such other amount as our board of directors may determine by the last day of the immediately preceding fiscal year.

 

Subject to the share limits described above, a non-employee director may not be granted equity awards with an aggregate value greater than $300,000 in any fiscal year, increased to $450,000 in the fiscal year of the non-employee director’s initial service (excluding any awards granted while the participant was an employee or a consultant in a capacity other than as a non-employee director). Shares may be authorized, but unissued, or reacquired shares of our common stock. Shares issued pursuant to awards under the 2014 Plan that we repurchase or are forfeited due to failure to vest, expire or become unexercisable without having been exercised in full, or are surrendered under an exchange program, as well as shares used to pay the exercise price of an award or to satisfy the tax withholding obligations related to an award, will become available for future grant under the 2014 Plan. In addition, to the extent that an award is paid out in cash rather than shares, such cash payment will not reduce the number of shares available for issuance under the 2014 Plan.

 

Administration . Our board of directors or one or more committees appointed by our board of directors, will administer our 2014 Plan. In the case of awards intended to qualify as “performance-based compensation” within the meaning of Section 162(m) of the Internal Revenue Code, the committee will consist of two or more “outside directors” within the meaning of Section 162(m). In addition, if we determine that it is desirable to qualify transactions under the 2014 Plan as exempt under Rule 16b-3 of the Exchange Act of 1934, as amended, such transactions will be structured to satisfy the requirements for exemption under Rule 16b-3 of the Exchange Act.

 

Subject to the provisions of the 2014 Plan, the administrator has the power to determine the terms of awards, including the recipients, exercise price, the number of shares subject to each such award, the exercisability of the awards, and the form of consideration, if any, payable upon exercise. The administrator also has the authority to amend existing awards to increase or reduce their exercise price, to allow participants the opportunity to transfer outstanding awards to a financial institution or other person or entity selected by the administrator, to institute an exchange program by which outstanding awards may be surrendered in exchange for awards with a higher or lower exercise price and different terms and to prescribe rules and to construe and interpret the 2014 Plan and awards granted under the 2014 Plan. The administrator also has the authority to establish rules and regulations, including sub-plans for satisfying, or qualifying for favorable tax treatment under, applicable laws in jurisdictions outside of the U.S.

 

112


Table of Contents

Stock Options . Stock options may be granted under our 2014 Plan. The exercise price of options granted under our 2014 Plan must be at least equal to the fair market value of our common stock on the date of grant. The term of an incentive stock option may not exceed ten years, except that with respect to any participant who owns more than 10% of the voting power of all classes of our outstanding stock, the term must not exceed 5 years and the exercise price must equal at least 110% of the fair market value on the grant date. The administrator will determine the methods of payment of the exercise price of an option as well as the period of time after a participant’s termination of service during which the participant may exercise his or her option. However, in no event may an option be exercised later than the expiration of its term.

 

Stock Appreciation Rights . Stock appreciation rights may be granted under our 2014 Plan. Stock appreciation rights allow the recipient to receive the appreciation in the fair market value of our common stock between the exercise date and the date of grant. Subject to the provisions of our 2014 Plan, the administrator determines the terms of stock appreciation rights, including when such rights become exercisable and whether to pay any increased appreciation in cash or with shares of our common stock, or a combination of both. The per share exercise price for the shares to be issued pursuant to the exercise of a stock appreciation right will be no less than 100% of the fair market value per share on the date of grant. The term of a stock appreciation right may not exceed ten years. The administrator will determine the period of time after a participant’s termination of service during which the participant may exercise his or her option. However, in no event may a stock appreciation right be exercised later than the expiration of its term.

 

Restricted Stock . Restricted stock may be granted under our 2014 Plan. Restricted stock awards are grants of shares of our common stock that vest in accordance with terms and conditions established by the administrator. The administrator will determine the number of shares of restricted stock granted and may impose whatever conditions to vesting it determines to be appropriate. For example, the administrator may set restrictions based on the achievement of specific performance goals or continued service to us. The administrator, in its sole discretion, may accelerate the time at which any restrictions may lapse or be removed. Recipients of restricted stock awards generally will have voting and dividend rights with respect to such shares upon grant without regard to vesting, unless the administrator provides otherwise. Shares of restricted stock that do not vest are subject to our right of repurchase or forfeiture.

 

Restricted Stock Units . Restricted stock units may be granted under our 2014 Plan. Restricted stock units are bookkeeping entries representing an amount equal to the fair market value of one share of our common stock. The administrator will determine the terms and conditions of restricted stock units, including the number of units granted, the vesting criteria (which may include accomplishing specified performance criteria or continued service to us), and the form and timing of payment. The administrator, in its sole discretion, may accelerate the time at which any restrictions will lapse or be removed. The administrator determines in its sole discretion whether an award will be settled in stock, cash or a combination of both.

 

Performance Units and Performance Shares . Performance units and performance shares may be granted under our 2014 Plan. Performance units and performance shares are awards that will result in a payment to a participant only if performance goals established by the administrator are achieved or the awards otherwise vest. Performance units have an initial dollar value established by the administrator on or before the date of grant. Performance shares will have an initial value equal to the fair market value of a share on the date of grant. The administrator will establish performance goals or other vesting provisions in its discretion, which, depending on the extent to which they are met, will determine the number and/or the value of performance units and performance shares to be paid out to participants. After the grant of a performance unit or performance share, the administrator, in its sole discretion, may reduce or waive any performance objectives or other vesting provisions for such performance units or performance shares. The administrator, in its sole discretion, may pay earned performance units or performance shares in the form of cash, in shares, or in some combination thereof.

 

Non-Employee Directors . All non-employee directors will be eligible to receive all types of awards (except for incentive stock options) under the 2014 Plan.

 

113


Table of Contents

Non-Transferability of Awards . Unless the administrator provides otherwise, our 2014 Plan generally will not allow for the transfer of awards other than by will or the laws of descent or distribution, and only the recipient of an award may exercise an award during his or her lifetime.

 

Certain Adjustments . In the event of certain changes in our capitalization, to prevent diminution or enlargement of benefits or potential benefits intended to be made available under the 2014 Plan, the administrator will adjust the number and class of shares that may be delivered under our 2014 Plan, and/or the number, class, and price of shares covered by each outstanding award, and the numerical share limits set forth in the 2014 Plan. In the event of our proposed liquidation or dissolution, the administrator will notify participants as soon as practicable prior to the transaction, and all awards will terminate immediately prior to the completion of the proposed transaction.

 

Merger or Change in Control . In the event of our merger with or into another corporation or other entity or our change in control, as defined in the 2014 Plan, each outstanding award will be treated as the administrator determines, including that the successor corporation or its parent or subsidiary will assume or substitute an equivalent award for each outstanding award. The administrator is not required to treat all awards similarly in the transaction. If there is no assumption or substitution of outstanding awards, the awards will fully vest, all restrictions will lapse, all performance goals or other vesting criteria will be deemed achieved at 100% of target levels, and the awards will become fully exercisable, if applicable, for a specified period prior to the transaction after the administrator notifies the participants. The award will then terminate upon the expiration of the specified period of time. With respect to awards granted to non-employee directors, in the event of a change in control, the participant will fully vest in options and stock appreciation rights, all restrictions on his or her restricted stock and restricted stock units will lapse, and all performance goals or other vesting requirements for his or her performance shares and units will be deemed achieved at 100% of target levels, and all other terms and conditions met.

 

Amendment; Termination . The administrator will have the authority to amend, suspend, or terminate the 2014 Plan, provided such action does not materially impair the existing rights of any participant unless mutually agreed between the participant and us. Our 2014 Plan will automatically terminate in 2024, unless we terminate it sooner.

 

2014 Employee Stock Purchase Plan

 

In March 2014, our board of directors adopted, and our stockholders approved, our 2014 Employee Stock Purchase Plan, or ESPP. We believe that allowing our employees to participate in the ESPP provides them with a further incentive towards ensuring our success and accomplishing our corporate goals.

 

The ESPP will include a component that is intended to qualify as an “employee stock purchase plan” under Section 423 of the Internal Revenue Code of 1986, as amended, referred to as the 423 Component, and a component that does not comply with Section 423, referred to as the Non-423 Component. For purposes of this disclosure, a reference to the “ESPP” will mean the 423 Component. Unless determined otherwise by the administrator, each of our non-U.S. subsidiaries will participate in a separate offering under the Non-423 Component.

 

Authorized Shares . A total of 1,600,000 shares of our common stock will be made available for sale. In addition, our ESPP will provide for annual increases in the number of shares available for issuance under the plan on the first day of each fiscal year beginning in 2015, equal to the least of:

 

   

1% of the outstanding shares of our common stock on the first day of such fiscal year;

 

   

3,500,000 shares; or

 

   

such other amount as determined by our board of directors.

 

114


Table of Contents

Administration . Our board of directors or a committee appointed by our board of directors will administer the ESPP, and will have full and exclusive authority to interpret the terms of the ESPP, to designate separate offerings under the plan, to designate subsidiaries and affiliates as participating in the 423 Component or the Non-423 Component, to determine eligibility, to adjudicate all disputed claims filed under the ESPP, and to establish such procedures that it deems necessary for the administration of the ESPP (including, without limitation, to adopt such procedures and sub-plans as are necessary or appropriate to permit the participation in the ESPP by employees who are foreign nationals or employed outside the U.S., the terms of which sub-plans may take precedence over other provisions of the ESPP except with respect to the ESPP’s share reserve limits).

 

Eligibility . Generally, all of our employees are eligible to participate if they are employed by us, or any participating subsidiary or affiliate, for at least 20 hours per week and more than five months in any calendar year. However, an employee may not be granted rights to purchase stock under the ESPP if such employee:

 

   

immediately after the grant would own stock possessing 5% or more of the total combined voting power or value of all classes of our capital stock; or

 

   

holds rights to purchase stock under all of our employee stock purchase plans that accrue at a rate that exceeds $25,000 worth of stock for each calendar year in which an option is outstanding at any time.

 

Offering Periods . Our ESPP will be intended to qualify under Section 423 of the Code and will provide for consecutive, overlapping 24-month offering periods. The offering periods are scheduled to start on the first trading day on or after May 21 and November 21 of each year, except for the first offering period, which will commence on the first trading day on or after completion of this offering and will end on the last trading day on or before May 20, 2016. Each purchase period will be approximately six months and will begin after one exercise date and will end with the next exercise date approximately six months later, except that the first purchase period of an offering period will begin on the enrollment date of each offering period and end on the next exercise date. The administrator may change the duration of future offering periods (and/or purchase periods) if the change is announced prior to the beginning of the first affected offering period.

 

Contributions . Our ESPP will permit participants to purchase shares of common stock through payroll deductions of up to 15% of their eligible compensation, which includes a participant’s base straight time gross earnings, exclusive of payments for commissions, overtime and shift premium, incentive compensation, bonuses, and other similar compensation. A participant may purchase a maximum of 1,500 shares during each purchase period. The administrator may allow all employees participating in a separate offering to contribute amounts to the ESPP via cash, check or other means set forth in the participants’ subscription agreement prior to an exercise date in an offering period.

 

Exercise of Purchase Right . Amounts deducted and accumulated by the participant are used to purchase shares of our common stock at the end of each six-month purchase period. The purchase price of the shares will be 85% of the lower of the fair market value of our common stock on the first trading day of each offering period or on the exercise date. If the fair market value of our common stock on the exercise date is less than the fair market value on the first trading day of the offering period, participants will be withdrawn from the current offering period following their purchase of shares on the purchase date and automatically will be enrolled in a new offering period. Participants may end their participation at any time during an offering period and will be paid their accrued contributions that have not yet been used to purchase shares of common stock. Participation ends automatically upon termination of employment with us.

 

Non-Transferability . A participant may not transfer rights granted under the ESPP other than by will, the laws of descent and distribution, or as otherwise provided under our ESPP.

 

Certain Adjustments . In the event of certain changes in our capitalization, to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the ESPP, the administrator will make adjustments to the number and class of common stock that may be delivered under the ESPP and/or the purchase

 

115


Table of Contents

price per share and number of shares covered by each option under the ESPP that has not yet been exercised, and the numerical share limits under the ESPP. In the event of our proposed dissolution or liquidation, any offering period then in progress will be shortened by setting a new exercise date and all awards will terminate immediately prior to the completion of the transaction, unless the administrator determines otherwise. Prior to the new exercise date, the administrator will provide notice to participants that the exercise date has been changed to the new exercise date and that the participant’s option will be exercised automatically unless the participant already has withdrawn from the offering period.

 

Merger or Change in Control . In the event of our merger or change in control, as defined under the ESPP, a successor corporation may assume or substitute each outstanding purchase right. If there is no assumption or substitution of the outstanding purchase right, the offering period then in progress will be shortened, and a new exercise date will be set to occur prior to the date of the proposed merger or change in control. The administrator will notify each participant that the exercise date has been changed and that the participant’s option will be exercised automatically on the new exercise date unless prior to such date the participant has withdrawn from the offering period.

 

Amendment; Termination . Our ESPP will terminate automatically in 2034, unless we terminate it sooner. Our board of directors has the authority to amend, suspend, or terminate our ESPP.

 

2008 Stock Plan

 

Our board of directors adopted our 2008 Stock Plan, or our 2008 Plan, in February 2008, and our stockholders approved it in February 2008. The 2008 Plan most recently was amended in March 2014. As of the effective date of this offering, the 2008 Plan will be terminated, and we will not grant any additional awards under the 2008 Plan. However, the 2008 Plan will continue to govern the terms and conditions of outstanding awards granted under it.

 

Authorized Shares . As of December 31, 2013, an aggregate of 14,343,134 shares of our common stock have been authorized for issuance under the 2008 Plan. As of December 31, 2013, options to purchase 9,639,999 shares of our common stock at a weighted average exercise price of $4.28 were outstanding under the 2008 Plan. Shares may be unissued, or reacquired common stock. Shares issued pursuant to awards under the 2008 Plan that expire or become unexercisable, are surrendered under an exchange program, or are repurchased while unvested will become available for future grant under the 2008 Plan while the 2008 Plan remains in effect.

 

Administration . Our 2008 Plan is administered by our board of directors or a committee appointed by it. Subject to the provisions of our 2008 Plan, the administrator has the power to construe and interpret our 2008 Plan and any awards granted under it, determine the terms of awards, including the recipients, the number of shares subject to each award, the exercise price, the fair market value of a share of our common stock, the vesting schedule of awards, together with any vesting acceleration, and the award agreements for use under the 2008 Plan. The administrator may amend awards as well as implement a program under which (i) outstanding awards are surrendered or cancelled in exchange for awards of the same type (which may have lower or higher exercise prices and different terms), awards of a different type, and/or cash, (ii) participants would have the opportunity to transfer any outstanding awards to a financial institution or other person or entity selected by the administrator, and/or (iii) the exercise price of an outstanding award is increased or reduced. The administrator may establish rules and regulations, including sub-plans for satisfying applicable laws in jurisdictions outside of the U.S.

 

Options . Stock options may be granted under our 2008 Plan. The exercise price per share of all options must equal at least 100% of the fair market value per share of our common stock on the date of grant. The term of an option granted under the 2008 Plan may not exceed ten years. An incentive stock option to be granted to a participant who owns more than 10% of the total combined voting power of all classes of our stock or the stock of any parent or subsidiary corporations on the date of grant, may not have a term in excess of five years and must have an exercise price of at least 110% of the fair market value per share of our common stock on the date of grant.

 

116


Table of Contents

The administrator determines the methods of payment of the exercise price of an option as well as the period of time after a participant’s termination of service during which the participant may exercise his or her option, which generally must be at least 30 days (or at least six months in the event of the participant’s termination of service as a result of death or disability). However, in no event may an option be exercised later than the expiration of its term.

 

Restricted Stock . Restricted stock awards may be granted under our 2008 Plan. Restricted stock awards are grants of shares of our common stock that are subject to various restrictions, including restrictions on transferability and forfeiture provisions. Shares of restricted stock vest, and the restrictions on such shares lapse, in accordance with terms and conditions established by the administrator. The term of a restricted stock award granted under our 2008 Plan may not exceed ten years. Once a restricted stock is purchased or otherwise issued, the purchaser generally has the rights equivalent to those of a shareholder.

 

Transferability of Awards . Our 2008 Plan generally does not allow for the transfer of awards except by will or the laws of descent and distribution, and only the recipient of an award may exercise such award during his or her lifetime.

 

Certain Adjustments . In the event of certain changes in our capitalization or other changes in our corporate structure affecting shares of our common stock, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under the 2008 Plan, the administrator will adjust the number and class of shares that may be delivered under the 2008 Plan and/or the number, class, and price of shares of common stock covered by each outstanding award. In the event of our proposed dissolution or liquidation, the administrator will notify participants as soon as practicable prior to the effective date of such proposed transaction and all awards will terminate immediately prior to the completion of such proposed transaction.

 

Merger or Change in Control . Our 2008 Plan provides that in the event of our merger or change in control (as defined in our 2008 Plan), each outstanding award will be treated as the administrator determines, including, without limitation, that each award be assumed or an equivalent award substituted by the successor corporation or a parent or subsidiary of the successor corporation. The administrator is not required to treat all awards similarly in the transaction. In the event of a change in control in which awards are not assumed or substituted for, then participants will fully vest in and have the right to exercise their outstanding awards, and any restrictions will lapse. In addition, if there is no assumption or substitution of outstanding awards in the event of a merger or change of control, awards will fully vest and become exercisable for a period of time determined by the administrator in its sole discretion after the administrator notifies the participants. Awards not assumed or substituted for will terminate upon the expiration of such period for no consideration, unless otherwise determined by the administrator.

 

Amendment; Termination . Our board of directors has the authority to amend, suspend or terminate our 2008 Plan at any time, provided that such action does not impair the rights of any participant, unless mutually agreed to in writing between the participant and the administrator. Upon completion of this offering, our 2008 Plan will be terminated and no further awards will be granted under it. All outstanding awards will continue to be governed by their existing terms.

 

2004 Stock Plan

 

Our board of directors adopted our 2004 Stock Plan, or our 2004 Plan, in August 2004, and our stockholders approved it in October 2004. The 2004 Plan was most recently amended in March 2014. The 2004 Plan was terminated in connection with the adoption of our 2008 Plan in February 2008. No awards have been granted under our 2004 Plan since October 2007, and no awards will be granted under our 2004 Plan after the offering. However, the 2004 Plan will continue to govern the terms and conditions of outstanding awards granted under it. The administrator of the 2004 Plan may amend awards as well as implement a program under which (i) outstanding awards are surrendered or cancelled in exchange for awards of the same type (which may have lower or higher exercise prices and different terms), awards of a different type, and/or cash, (ii) participants would have the opportunity to transfer any outstanding awards to a financial institution or other person or entity

 

117


Table of Contents

selected by the administrator, and/or (iii) the exercise price of an outstanding award is increased or reduced. As of December 31, 2013, options to purchase up to 331,382 shares of our common stock at a weighted average exercise price per share of $0.15 were outstanding under the 2004 Plan. Shares subject to awards under the 2004 Plan that expire or otherwise terminate without being exercised for any reason will not be available for future issuance.

 

The terms of the 2004 plan and options granted thereunder are substantially similar to the terms of and awards granted under the 2008 plan.

 

Executive Incentive Compensation Plan

 

In March 2014, our board of directors adopted an Executive Incentive Compensation Plan, referred to as our Bonus Plan. Our Bonus Plan will allow our compensation committee to provide cash incentive awards to selected employees, including our NEOs, based upon performance goals established by our compensation committee.

 

Under the Bonus Plan, our compensation committee will determine the performance goals applicable to awards, which goals may include, without limitation: attainment of research and development milestones, sales bookings, business divestitures and acquisitions, cash flow, cash position, earnings (which may include any calculation of earnings, including but not limited to earnings before interest and taxes, earnings before taxes, earnings before interested, taxes, depreciation and amortization and net earnings), earnings per share, net income, net profit, net sales, operating cash flow, operating expenses, operating income, operating margin, overhead or other expense reduction, product defect measures, product release timelines, productivity, profit, return on assets, return on capital, return on equity, return on investment, return on sales, revenue, revenue growth, sales results, sales growth, stock price, time to market, total stockholder return, working capital, and individual objectives such as peer reviews or other subjective or objective criteria. Performance goals that include the Company’s financial results may be determined in accordance with U.S. generally accepted accounting principles, or GAAP, or such financial results may consist of non-GAAP financial measures and any actual results may be adjusted by our compensation committee for one-time items or unbudgeted or unexpected items when determining whether the performance goals have been met. The goals may be on the basis of any factors our compensation committee determines relevant, and may be adjusted on an individual, divisional, business unit or company-wide basis. Any criteria used may be measured on such basis as our compensation committee determines. The performance goals may differ from participant to participant and from award to award.

 

Our compensation committee may, in its sole discretion and at any time, increase, reduce or eliminate a participant’s actual award, and/or increase, reduce or eliminate the amount allocated to the bonus pool for a particular performance period. The actual award may be below, at or above a participant’s target award, in our compensation committee’s discretion. Our compensation committee may determine the amount of any reduction on the basis of such factors as it deems relevant, and it is not be required to establish any allocation or weighting with respect to the factors it considers.

 

Actual awards are paid in cash (or its equivalent) in a single lump sum only after they are earned and approved by our compensation committee. Unless otherwise determined by our compensation committee, to earn an actual award, a participant must be employed by the Company (or an affiliate of the Company) through the date the bonus is paid. Payment of bonuses occurs as soon as administratively practicable after they are earned, but no later than the dates set forth in the Bonus Plan.

 

Our board of directors has the authority to amend, alter, suspend or terminate the Bonus Plan provided such action does not alter or impair the existing rights of any participant with respect to any earned bonus.

 

Retirement Plan

 

We maintain a tax-qualified 401(k) retirement plan for all employees who satisfy certain eligibility requirements under the plan. The plan provides eligible employees with an opportunity to save for retirement on a tax-advantaged basis. Participants of our 401(k) plan are able to defer a percentage of their eligible compensation, subject to applicable annual Internal Revenue Code and plan limits. All participants’ interests in

 

118


Table of Contents

their deferrals are 100% vested when contributed. We do not provide matching contributions under our 401(k) plan. Pre-tax contributions are allocated to the participant’s individual account and are then invested in selected investment alternatives according to the participant’s directions. The 401(k) plan is intended to qualify under Internal Revenue Code Section 401(a) with the plan’s related trust intended to be tax exempt under Internal Revenue Code Section 501(a). As a tax-qualified retirement plan, the 401(k) plan allows contributions, and earnings on those contributions, not to be taxable to the employees until distributed from the 401(k) plan.

 

Limitation on Liability and Indemnification Matters

 

Our restated certificate of incorporation and bylaws, each to be effective upon the completion of this offering, will provide that we will indemnify our directors and officers, and may indemnify our employees and other agents, to the fullest extent permitted by the Delaware General Corporation Law, which prohibits our restated certificate of incorporation from limiting the liability of our directors for the following:

 

   

any breach of the director’s duty of loyalty to us or to our stockholders;

 

   

acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;

 

   

unlawful payment of dividends or unlawful stock repurchases or redemptions; and

 

   

any transaction from which the director derived an improper personal benefit.

 

If Delaware law is amended to authorize corporate action further eliminating or limiting the personal liability of a director, then the liability of our directors will be eliminated or limited to the fullest extent permitted by Delaware law, as so amended. Our restated certificate of incorporation does not eliminate a director’s duty of care and in appropriate circumstances, equitable remedies, such as injunctive or other forms of non-monetary relief, remain available under Delaware law. This provision also does not affect a director’s responsibilities under any other laws, such as the federal securities laws or other state or federal laws. Under our bylaws, we will also be empowered to purchase insurance on behalf of any person whom we are required or permitted to indemnify.

 

In addition to the indemnification required in our restated certificate of incorporation and bylaws, we plan to enter into indemnification agreements with each of our current directors, officers, and some employees before the completion of this offering. These agreements will provide indemnification for certain expenses and liabilities incurred in connection with any action, suit, proceeding, or alternative dispute resolution mechanism, or hearing, inquiry, or investigation that may lead to the foregoing, to which they are a party, or are threatened to be made a party, by reason of the fact that they are or were a director, officer, employee, agent, or fiduciary of our company, or any of our subsidiaries, by reason of any action or inaction by them while serving as an officer, director, agent, or fiduciary, or by reason of the fact that they were serving at our request as a director, officer, employee, agent, or fiduciary of another entity. In the case of an action or proceeding by, or in the right of, our company or any of our subsidiaries, no indemnification will be provided for any claim where a court determines that the indemnified party is prohibited from receiving indemnification. We believe that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. We also maintain directors’ and officers’ liability insurance.

 

The limitation of liability and indemnification provisions in our restated certificate of incorporation and bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, even though an action, if successful, might benefit us and our stockholders. A stockholder’s investment may be harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. Insofar as we may provide indemnification for liabilities arising under the Securities Act to our directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. There is no pending litigation or proceeding naming any of our directors or officers as to which indemnification is being sought, nor are we aware of any pending or threatened litigation that may result in claims for indemnification by any director or officer.

 

119


Table of Contents

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

 

We describe below transactions and series of similar transactions, during our last three fiscal years, to which we were a party or will be a party, in which:

 

   

the amounts involved exceeded or will exceed $120,000; and

 

   

any of our directors, executive officers, or beneficial holders of more than 5% of any class of our capital stock had or will have a direct or indirect material interest.

 

Other than as described below, there has not been, nor is there any currently proposed, transactions or series of similar transactions to which we have been or will be a party other than compensation arrangements, which are described where required under “Executive Compensation.”

 

Private Placements

 

Between June 2013 and September 2013, we sold an aggregate of 80,000 shares of our Series D redeemable convertible preferred stock at a per share purchase price of $1,000 pursuant to a stock purchase agreement. All such shares of Series D redeemable convertible preferred stock were purchased by funds affiliated with Summit Partners, L.P., which hold more than 5% of our outstanding capital stock and one of whose managing directors, Peter Y. Chung, is a member of our board of directors. The following table summarizes purchases of Series D redeemable convertible preferred stock by Summit Partners:

 

Name of Stockholder

   A10 Director    Number of
Series D Shares
     Total Purchase
Price
 

Summit Partners, L.P. (1)

   Peter Y. Chung      80,000       $ 80,000,000   

 

(1)   Affiliates of Summit Partners, L.P. holding our securities whose shares are aggregated for purposes of reporting share ownership information include Summit Partners Growth Equity Fund VIII-A, L.P., Summit Partners Growth Equity Fund VIII-B, L.P., Summit Investors I, LLC, and Summit Investors I (UK), L.P.

 

Investors Rights Agreement

 

We are party to an investors rights agreement which provides, among other things, that the holders of our preferred stock prior to this offering have the right to demand that we file a registration statement, or request that the shares of common stock issued on conversion of such stock be covered by a registration statement that we are otherwise filing, subject to certain exceptions. Lee Chen, our President and Chief Executive Officer, Robert Cochran, our Vice President, Legal and Corporate Collaborations, certain entities affiliated with Summit Partners, L.P., which hold more than 5% of our outstanding capital stock and one of whose managing directors, Peter Y. Chung, is a member of our board of directors, and entities affiliated with Mitsui & Co. Ltd., which hold more than 5% of our outstanding capital stock are parties to the investors rights agreement. For a more detailed description of these registration rights, see “Description of Capital Stock—Registration Rights.”

 

Transactions with Officers

 

Prior to joining us as our Vice President, Legal and Corporate Collaboration in January 2012, Robert Cochran was a principal at Law Office of Robert Cochran and in such capacity, served as our outside legal counsel. In the last three fiscal years, we paid an aggregate of $353,536 for legal services rendered by Mr. Cochran’s law firm prior to the time he began his employment with us.

 

Revenue

 

From January 1, 2010 until December 31, 2013, we have recognized revenue of $17.5 million from reseller contracts entered into with companies affiliated with Mitsui & Co., Ltd., which holds more than 5% of our outstanding capital stock.

 

120


Table of Contents

Employment Arrangements and Indemnification Agreements

 

We have entered into employment and consulting arrangements with certain of our current and former executive officers. See “Executive Compensation—Executive Employment Arrangements.”

 

We have also entered into indemnification agreements with certain directors and officers of ours. The indemnification agreements and our restated certificate of incorporation and bylaws in effect upon the completion of this offering require us to indemnify our directors and officers to the fullest extent permitted by Delaware law. See “Executive Compensation—Limitation on Liability and Indemnification Matters.”

 

Stock Option Grants to Executive Officers and Directors

 

We have granted stock options to our executive officers and one of our non-employee directors. See the sections entitled “Executive Compensation” above.

 

Settlement of Brocade Litigation

 

In May 2013, we agreed to settle litigation with Brocade Communications Systems, Inc. Such settlement included a dismissal of all claims against the individual defendants, including Lee Chen, our President and Chief Executive Officer, which was followed by entry of a final judgment in favor of the individual defendants on all claims, and general releases to all parties. See Note 6 to our Consolidated Financial Statements.

 

Policies and Procedures for Related Party Transactions

 

The audit committee of our board of directors has the primary responsibility for reviewing and approving transactions with related parties. Our audit committee charter provides that the audit committee shall review and approve in advance any related party transactions.

 

We have adopted a formal written policy providing that our executive officers, directors, nominees for election as directors, beneficial owners of more than 5% of any class of our common stock, any member of the immediate family of any of the foregoing persons, and any firm, corporation, or other entity in which any of the foregoing persons is employed, is a general partner or principal or in a similar position, or in which such person has a 5% or greater beneficial ownership interest, is not permitted to enter into a related party transaction with us without the consent of our audit committee, subject to the exceptions described below. In approving or rejecting any such proposal, our audit committee is to consider the relevant facts and circumstances available and deemed relevant to our audit committee, including, whether the transaction is on terms no less favorable than terms generally available to an unaffiliated third party under the same or similar circumstances, and the extent of the related party’s interest in the transaction. Our audit committee has determined that certain transactions will not require audit committee approval, including certain employment arrangements of executive officers, director compensation, transactions with another company at which a related party’s only relationship is as a non-executive employee or beneficial owner of less than 5% of that company’s shares, transactions where a related party’s interest arises solely from the ownership of our common stock and all holders of our common stock received the same benefit on a pro rata basis, and transactions available to all employees generally.

 

121


Table of Contents

PRINCIPAL AND SELLING STOCKHOLDERS

 

The following table sets forth certain information with respect to the beneficial ownership of our common stock at December 31, 2013, and as adjusted to reflect the sale of common stock in this offering, for:

 

   

each of our directors;

 

   

each of our named executive officers;

 

   

all of our current directors and executive officers as a group;

 

   

each person, or group of affiliated persons, who beneficially owned more than 5% of our common stock; and

 

   

all selling stockholders.

 

We have determined beneficial ownership in accordance with the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Except as indicated by the footnotes below, we believe, based on information furnished to us, that the persons and entities named in the table below have sole voting and sole investment power with respect to all shares of common stock that they beneficially own, subject to applicable community property laws.

 

Applicable percentage ownership is based on 50,029,124 shares of common stock outstanding at December 31, 2013, assuming automatic conversion of our convertible preferred stock into common stock. In computing the number of shares of common stock beneficially owned by a person and the percentage ownership of such person, we deemed to be outstanding all shares of common stock subject to options held by the person that are currently exercisable or exercisable within 60 days of December 31, 2013. However, we did not deem such shares outstanding for the purpose of computing the percentage ownership of any other person. The information in the table below assumes that we will not, under the terms of our Series D redeemable convertible preferred stock, issue any shares of common stock to holders of the Series D redeemable convertible preferred stock as a preference payment in connection with this offering, as described on page 38 of the section entitled “Risk Factors.”

 

Unless otherwise indicated, the address of each beneficial owner listed in the table below is c/o A10 Networks, Inc., 3 West Plumeria Drive, San Jose, California 95134.

 

Unless otherwise noted below, none of the selling stockholders have had any position, office or other material relationship with the company or any of its predecessors or affiliates within the past three years.

 

    Beneficial Ownership
Prior to this Offering
    Number of
shares offered
    Beneficial Ownership of shares
after the closing
 
    Number     Percent     Without
overallotment

exercise
    With
overallotment

exercise
    Without
overallotment
exercise
    With
overallotment
exercise
 

Name of Beneficial Owner

          Number     Percent     Number     Percent  

5% Stockholders:

               

Lee Chen

               

Shares issued in connection with employment arrangements

    2,627,783                 

Shares issued in connection with investments (1)

    7,964,372                 

Total

    10,592,155        21.2     —          —          10,592,155        17.9     10,592,155        17.4

Entities affiliated with Summit Partners, L.P. (3)

    9,427,846        18.8     —          —          9,427,846        16.0     9,427,846        15.5

Entities affiliated with Mitsui & Co., Ltd. (4)

    6,355,625        12.7     1,820,284        2,795,436        4,535,341        7.7     3,560,189        5.8

Director and Executive Officers:

               

Peter Y Chung (2)

    9,427,846        18.8     —          —          9,427,846        16.0     9,427,846        15.5

Rajkumar Jalan (5)

    342,575        *        —          —          342,575        *        342,575        *   

Robert Cochran (6)

    351,115        *        —          —          351,115        *        351,115        *   

Jason Matlof (7)

    186,666        *        —          —          186,666        *        186,666        *   

 

122


Table of Contents
    Beneficial Ownership
Prior to this Offering
    Number of
shares offered
    Beneficial Ownership of shares
after the closing
 
    Number     Percent     Without
overallotment

exercise
    With
overallotment

exercise
    Without
overallotment
exercise
    With
overallotment
exercise
 

Name of Beneficial Owner

          Number     Percent     Number     Percent  

Ray Smets (8)

    69,998        *        —          —          69,998        *        69,998        *   

Greg Straughn (9)

    212,220        *        —          —          212,220        *        212,220        *   

Phillip J. Salsbury (10)

    40,000        *        —          —          40,000        *        40,000        *   

All current directors and executive officers as a group (8 Persons) (11)

    21,222,575        42.4     —          —          21,222,575        36.0     21,222,575        34.8

Other Selling Stockholders:

               

Centillion III Venture Capital Corp. (12)

    1,596,023        3.2     228,555        350,995        1,367,468        2.3     1,245,028        2.0

Centillion Venture Capital Corp. (13)

    2,254,901        4.5     645,815        991,788        1,609,086        2.7     1,263,113        2.1

Enspire Capital Ltd. (14)

    1,187,213        2.4     68,005        104,436        1,119,208        1.9     1,082,777        1.8

Grand Cathay Venture Capital Co., Ltd. (15)

    1,289,280        2.6     123,088        189,027        1,166,192        2.0     1,100,253        1.8

Harbinger III Venture Capital Corp. (16)

    1,257,318        2.5     36,010        55,301        1,221,308        2.1     1,202,017        2.0

Very Positive Investment Ltd. (17)

    1,128,874        2.3     323,315        496,520        805,559        1.4     632,354        1.0

John Jokom (18)

    506,774        1.0     38,187        58,645        468,587        *        448,129        *   

Franchael Holding Ltd. (19)

    407,016        *        22,912        35,187        384,104        *        371,829        *   

The Kwong Trust created on October 27 1999 (20)

    375,131        *        97,893        150,336        277,238        *        224,795        *   

Chiy Chen

    246,000        *        7,637        11,728        238,363        *        234,272        *   

Jung-Chuan Chiang

    167,874        *        15,275        23,458        152,599        *        144,416        *   

H&A Venture Capital Investment Corporation (21)

    220,454        *        31,570        48,482        188,884        *        171,972        *   

Marshall and Claudia Smith Family Trust dated June 15, 2006 (22)

    95,403        *        11,456        17,593        83,947        *        77,810        *   

All Other Selling Stockholders (9 Persons) (23)

    441,438        *        29,998        46,068        411,440        *        395,370        *   

 

 

*   Represents beneficial ownership of less than one percent (1%).
(1)   Includes 2,048,349 shares of common stock issuable upon conversion of Series A preferred stock, 1,725,960 shares of common stock issuable upon conversion of Series B preferred stock and 3,923,397 shares of common stock issuable upon conversion of Series C preferred stock acquired as a result of investments in the Company, and 266,666 shares of common stock purchased from a former employee in a private transaction.
(2)   Includes (i) 6,873,136 shares of common stock issuable upon conversion of our Series D redeemable convertible preferred stock held of record by Summit Partners Growth Equity Fund VIII-A, L.P.; (ii) 2,510,989 shares of common stock issuable upon conversion of our Series D redeemable convertible preferred stock held of record by Summit Partners Growth Equity Fund VIII-B, L.P.; (iii) 40,186 shares of common stock issuable upon conversion of our Series D redeemable convertible preferred stock of record held by Summit Investors I, LLC and (iv) 3,535 shares of common stock issuable upon conversion of our Series D redeemable convertible preferred stock held of record by Summit Investors I (UK), L.P. Summit Partners, L.P. is (i) the managing member of Summit Partners GE VIII, LLC, which is the general partner of Summit Partners GE VIII, L.P., which is the general partner of Summit Partners Growth Equity Fund VIII-A, L.P. and Summit Partners Growth Equity Fund VIII-B, L.P., and (ii) the managing member of Summit Investors Management, LLC, which is the manager of Summit Investors I, LLC., and the general partner of Summit Investors I (UK), L.P. Summit Partners, L.P., through a two-person investment committee, currently composed of Martin J. Mannion and Mr. Chung, has voting and dispositive authority over the shares held by each of these entities and therefore beneficially owns such shares. Each of the funds affiliated with Summit Partners, L.P., Mr. Mannion and Mr. Chung disclaim beneficial ownership of the shares, except, in each case, to the extent of such person or entity’s pecuniary interest therein. The address for each of these entities is 222 Berkeley Street, 18th Floor, Boston, MA 02116. Certain private funds sponsored by Summit Partners, L.P. hold private equity investments in one or more broker-dealers, and as a result Summit Partners, L.P. is an affiliate of a broker-dealer. However, entities affiliated with Summit Partners, L.P. acquired the securities to be sold in this offering in the ordinary course of business for investment for their own account and not as a nominee or agent and, at the time of that purchase, had no contract, undertaking, agreement, understanding or arrangement, directly or indirectly, with any person to sell, transfer, distribute or grant participations to such person or to any third person with respect to those securities.
(3)   Includes (i) 5,296,803 shares held of record by Mitsui & Co., Ltd.; (ii) 1,058,822 shares held of record by Mitsui & Co. (U.S.A.), Inc. The address of (i) Mitsui & Co., Ltd. is 2-1 Ohtemachi 1-Chome Chiyoda-Ku, Tokyo 100-0004 Japan and (ii) Mitsui & Co. (U.S.A.), Inc. is 200 Park Avenue, New York, NY 10166 USA.
(4)   Includes 9,427,846 shares of common stock issuable upon conversion of our Series D redeemable convertible preferred stock held of record by funds affiliated with Summit Partners, L.P., where Mr. Chung is a member of the general partner of Summit Partners, L.P. Mr. Chung disclaims beneficial ownership of the shares, except to the extent of his pecuniary interest therein.

 

123


Table of Contents
(5)   Includes 49,777 shares issuable upon exercise of options exercisable within 60 days after December 31, 2013.
(6)   Includes 151,554 shares issuable upon exercise of options exercisable within 60 days after December 31, 2013, of which 83,056 shares may be acquired upon an early exercise and are subject to a right of repurchase by us if Mr. Cochran does not satisfy the option’s vesting requirements. Shares acquired upon an early exercise may not be disposed of until the vesting period has been satisfied.
(7)   Includes 186,666 shares issuable upon exercise of options exercisable within 60 days of December 31, 2013, all of which may be acquired upon an early exercise and are subject to a right of repurchase by us if Mr. Matlof does not satisfy the option’s vesting requirements. Shares acquired upon an early exercise may not be disposed of until the vesting period has been satisfied.
(8)   Consists of 66,666 shares acquired upon an early exercise and held of record by Mr. Smets, all of which are subject to a right of repurchase by us if Mr. Smets does not satisfy the option’s vesting requirements. Shares acquired upon an early exercise may not be disposed of until the vesting period has been satisfied. Also includes 3,332 shares issuable upon exercise of options exercisable within 60 days after December 31, 2013.
(9)   Includes 212,220 shares issuable upon exercise of options exercisable within 60 days after December 31, 2013, of which 36,445 shares may be acquired upon an early exercise and are subject to a right of repurchase by us if Mr. Straughn does not satisfy the option’s vesting requirements. Shares acquired upon an early exercise may not be disposed of until the vesting period has been satisfied.
(10)   Consists of 40,000 shares acquired upon an early exercise and held of record by Mr. Salsbury, of which 31,667 shares are subject to a right of repurchase by us if Mr. Salsbury does not satisfy the option’s vesting requirements. Shares acquired upon an early exercise may not be disposed of until the vesting period has been satisfied.
(11)   Includes 603,548 shares issuable upon exercise of options held by our current executive officers and directors exercisable within 60 days after December 31, 2013.
(12)   Consists of 1,596,023 shares held of record by Centillion III Venture Capital Corp. (“Centillion III”). CyberTAN Technologies, Inc., Rich-Power Electronic Devices, Inc. and JihSun Securities are the controlling entities of Centillion III and may be considered to share voting and dispositive power over these shares. The address of Centillion III is 3F., No. 135 Jianguo North Road, Sec. 2, Taipei, 10484, Taiwan.
(13)   Consists of 2,254,901 shares held of record by Centillion Venture Capital Corp. (“Centillion”). The Great Taipei Gas Corporation, the Shin Sheng Company Ltd., Kwang Yang Motor Co., Ltd., Shin Kong Life Real Estate Service Company, and Mr. Kuan Shen Wang are the controlling entities of Centillion and may be considered to share voting and dispositive power over these shares. The address of Centillion is 5F., No. 123, Sec. 2, Nanjing East Road Zhongshan District, Taipei 10485, Taiwan.
(14)   Consists of 1,187,213 shares held of record by Enspire Capital Ltd. (“Enspire”). Chay Kwong Soon and Low Choy Yoke may be considered to share voting and dispositive power over these shares. The address of Enspire is 15F-4, 171 Songde Rd., Xinyi District, Taipei City, Taiwan 11085.
(15)   Includes (i) 354,552 shares held of record by China Investment and Development Co. Ltd.; (ii) 354,552 shares held of record by Grand Cathay Venture Capital Co. Ltd.; (iii) 354,552 shares held of record by Grand Cathay Venture Capital II Co. Ltd.; and (iv) 225,624 shares held of record by Grand Cathay Venture Capital Co. Ltd
(16)   Consists of 1,257,318 shares held of record by Harbinger III Venture Capital Corp. (“Harbinger”). Controlling persons may be considered to share voting and dispositive power over these shares. The address of Harbinger is 7F, No. 187, Tiding Blvd., Sec. 2, Neihu, Taipei, Taiwan 114 R.O.C.
(17)   Consists of 1,128,874 shares held of record by Very Positive Investments Ltd. (“Very Positive”). Very Positive is wholly owned by Porterlea Group Limited, which is wholly owned by Cheers Limited, which is wholly owned by APF Partners Limited. APF Partners Limited, and Wang Poey Foon Angela and So Chee Wai Janet, the members of APF Partners Limited, may be considered to share voting and dispositive power over these shares. The address of Very Positive is 3F., No.135 Jianguo North Road, Sec. 2, Taipei, Taiwan, R.O.C. 10484.
(18)   Includes 173,442 shares issuable pursuant to stock options exercisable within 60 days of December 31, 2013, of which 8,333 shares may be acquired upon an early exercise and subject the option’s vesting requirements. Shares acquired upon early exercise may not be disposed of until the vesting period has been satisfied. John Jokom is an employee of the Company.
(19)   Consists of 407,016 shares held of record by Franchael Holding Ltd. (“Franchael”). Jung-Kuei Jiang is the director of Franchael and may be considered to exercise voting and dispositive power over these shares. The address of Franchael is 5F, No. 58, Lane 8, Tian Mu East Road Taipei, Taiwan, Republic of China.
(20)   Consists of 375,131 shares held of record by The Kwong Trust, created on 10/27/99 (“Kwong Trust”). Raymond Wai-Kit Kwong and Emma Lim Kwong are the trustees of the Kwong Trust and may be considered to share voting and dispositive power over these shares.
(21)   Consists of 220,454 shares held of record by H&A Venture Capital Investment Corporation (“H&A”). Chiang Wei-Feng is the managing director of H&A and may be considered to exercise voting and dispositive power over these shares. The address of H&A is 23F-1, International Trade Building, No. 333, Keelung Rd., Sec. 1, Taipei 110, Taiwan R.O.C.
(22)   Consists of 95,403 shares held of record by Marshall and Claudia Smith Family Trust dated June 15, 2006 (“Smith Family Trust”). Marshall Smith and Claudia Smith are the trustees of the Smith Family Trust and may be considered to share voting and dispositive power over these shares.
(23)   Represents shares held by 9 selling stockholders not listed above who, as a group, own less than 1% of our outstanding common stock prior to this offering.

 

124


Table of Contents

DESCRIPTION OF CAPITAL STOCK

 

General

 

The following is a summary of the rights of our common stock and preferred stock and certain provisions of our restated certificate of incorporation and bylaws as they will be in effect upon the completion of this offering. This summary does not purport to be complete and is qualified in its entirety by the provisions of our restated certificate of incorporation and bylaws, copies of which have been filed as exhibits to the registration statement of which this prospectus is a part.

 

Immediately following the completion of this offering, our authorized capital stock will consist of 600,000,000 shares, with a par value of $0.00001 per share, of which:

 

   

500,000,000 shares are designated as common stock; and

 

   

100,000,000 shares are designated as preferred stock.

 

As of December 31, 2013, we had outstanding 50,029,124 shares of common stock, held by approximately 423 stockholders of record, and no shares of preferred stock, assuming the automatic conversion of all outstanding shares of our convertible preferred stock into common stock effective immediately prior to the completion of this offering. In addition, as of December 31, 2013, we had outstanding options to acquire 9,971,381 shares of our common stock.

 

Common Stock

 

The holders of common stock are entitled to one vote per share on all matters submitted to a vote of our stockholders and do not have cumulative voting rights. Accordingly, holders of a majority of the shares of common stock entitled to vote in any election of directors may elect all of the directors standing for election. Subject to preferences that may be applicable to any preferred stock outstanding at the time, the holders of outstanding shares of common stock are entitled to receive ratably any dividends declared by our board of directors out of assets legally available. See the section entitled “Dividend Policy.” Upon our liquidation, dissolution, or winding up, holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preference of any then outstanding shares of preferred stock. Holders of common stock have no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to the common stock.

 

Preferred Stock

 

After the completion of this offering, no shares of preferred stock will be outstanding. Pursuant to our restated certificate of incorporation, our board of directors will have the authority, without further action by the stockholders, to issue from time to time up to 100,000,000 shares of preferred stock in one or more series. Our board of directors may designate the rights, preferences, privileges, and restrictions of the preferred stock, including dividend rights, conversion rights, voting rights, redemption rights, liquidation preference, sinking fund terms, and the number of shares constituting any series or the designation of any series. The issuance of preferred stock could have the effect of restricting dividends on the common stock, diluting the voting power of the common stock, impairing the liquidation rights of the common stock, or delaying, deterring, or preventing a change in control. Such issuance could have the effect of decreasing the market price of the common stock. The issuance of preferred stock or even the ability to issue preferred stock could also have the effect of delaying, deterring or preventing a change in control. We currently have no plans to issue any shares of preferred stock.

 

Registration Rights

 

Following the completion of this offering, the holders of shares of our convertible preferred stock or their permitted transferees are entitled to rights with respect to the registration of these shares under the Securities Act. These rights are provided under the terms of an investors rights agreement between us and the holders of these

 

125


Table of Contents

shares, which was entered into in connection with our convertible preferred stock financings, and include demand registration rights, short-form registration rights, and piggyback registration rights. In any registration made pursuant to such rights agreement, all fees, costs, and expenses of underwritten registrations will be borne by us and all selling expenses, including estimated underwriting discounts and selling commissions, will be borne by the holders of the shares being registered.

 

Demand Registration Rights

 

The holders of an aggregate of 36,497,114 shares of our common stock, or their permitted transferees are entitled to demand rights. Under the terms of the investors rights agreement, we will be required, upon the written request of (i) holders of a majority of the shares that are entitled to rights under the investors rights agreement, or (ii) the holders of a majority of the a majority of the registrable securities then outstanding and held by the holders of Series D Preferred Stock (or, in either case, any lesser number of shares if the aggregate offering price, net of underwriting discounts and commissions would exceed $5,000,000), to use commercially reasonable efforts to register all or a portion of these shares for public resale. Pursuant to this provision of the investors rights agreement, we are required to effect only one registration pursuant clause (i) above, and we are required to effect only two registrations pursuant to clause (ii) above. We are not required to effect a demand registration earlier than six months after the effective date of this registration statement.

 

Short-Form Registration Rights

 

The holders of an aggregate of 36,497,114 shares of our common stock or their permitted transferees are also entitled to short-form registration rights. If we are eligible to file a registration statement on Form S-3, these holders have the right, upon written request from holders of these shares, to have such shares registered by us if the proposed aggregate offering price of the shares to be registered by the holders requesting registration is at least $1.0 million, subject to exceptions set forth in the rights agreement.

 

Piggyback Registration Rights

 

The holders of an aggregate of 36,497,114 shares of our common stock or their permitted transferees are entitled to piggyback registration rights. If we register any of our securities for our own account, the holders of these shares are entitled to include their shares in the registration. The underwriters of any underwritten offering have the right to limit the number of shares registered by these holders for marketing reasons, subject to certain limitations.

 

Anti-Takeover Effects of Delaware Law and Our Certificate of Incorporation and Bylaws

 

Our restated certificate of incorporation and bylaws, which will be effective upon the completion of this offering, will contain certain provisions that could have the effect of delaying, deferring, or discouraging another party from acquiring control of us. These provisions and certain provisions of Delaware law, which are summarized below, could discourage takeovers, coercive or otherwise. These provisions are also designed, in part, to encourage persons seeking to acquire control of us to negotiate first with our board of directors. We believe that the benefits of increased protection of our potential ability to negotiate more favorable terms with an unfriendly or unsolicited acquirer outweigh the disadvantages of discouraging a proposal to acquire us.

 

Undesignated Preferred Stock. As discussed above under “—Preferred Stock,” our board of directors will have the ability to designate and issue preferred stock with voting or other rights or preferences that could deter hostile takeovers or delay changes in our control or management.

 

Limits on Ability of Stockholders to Act by Written Consent or Call a Special Meeting. Our restated certificate of incorporation will provide that our stockholders may not act by written consent. This limit on the ability of stockholders to act by written consent may lengthen the amount of time required to take stockholder actions. As a result, the holders of a majority of our capital stock would not be able to amend the bylaws or remove directors without holding a meeting of stockholders called in accordance with the bylaws.

 

126


Table of Contents

In addition, our bylaws will provide that special meetings of the stockholders may be called only by the chairman of the board, the chief executive officer, the president (in the absence of a chief executive officer), or our board of directors. A stockholder may not call a special meeting, which may delay the ability of our stockholders to force consideration of a proposal or for holders controlling a majority of our capital stock to take any action, including the removal of directors.

 

Requirements for Advance Notification of Stockholder Nominations and Proposals. Our bylaws will establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of our board of directors or a committee of the board of directors. These advance notice procedures may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed and may also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempt to obtain control of our company.

 

Board Classification. Our board of directors is divided into three classes. The directors in each class will serve for a three-year term, one class being elected each year by our stockholders. This system of electing and removing directors may tend to discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority of our directors.

 

No Cumulative Voting. Our restated certificate of incorporation and bylaws do not permit cumulative voting in the election of directors. Cumulative voting allows a stockholder to vote a portion or all of its shares for one or more candidates for seats on the board of directors. Without cumulative voting, a minority stockholder may not be able to gain as many seats on our board of directors as the stockholder would be able to gain if cumulative voting were permitted. The absence of cumulative voting makes it more difficult for a minority stockholder to gain a seat on our board of directors to influence our board’s decision regarding a takeover.

 

Amendment of Charter Provisions. The amendment of the above provisions of our restated certificate of incorporation requires approval by holders of at least 66-2/3% of our outstanding capital stock entitled to vote generally in the election of directors.

 

Delaware Anti-Takeover Statute. We will be subject to the provisions of Section 203 of the Delaware General Corporation Law regulating corporate takeovers. In general, Section 203 prohibits a publicly held Delaware corporation from engaging, under certain circumstances, in a business combination with an interested stockholder for a period of three years following the date the person became an interested stockholder unless:

 

   

prior to the date of the transaction, our board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;

 

   

upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, but not the outstanding voting stock owned by the interested stockholder, (i) shares owned by persons who are directors and also officers and (ii) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

 

   

at or subsequent to the date of the transaction, the business combination is approved by our board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66-2/3% of the outstanding voting stock that is not owned by the interested stockholder.

 

Generally, a business combination includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. An interested stockholder is a person who, together with affiliates

 

127


Table of Contents

and associates, owns or, within three years prior to the determination of interested stockholder status, did own 15% or more of a corporation’s outstanding voting stock. We expect the existence of this provision to have an anti-takeover effect with respect to transactions our board of directors does not approve in advance. We also anticipate that Section 203 may discourage attempts that might result in a premium over the market price for the shares of common stock held by stockholders.

 

The provisions of Delaware law and the provisions of our restated certificate of incorporation and bylaws could have the effect of discouraging others from attempting hostile takeovers and as a consequence, they might also inhibit temporary fluctuations in the market price of our common stock that often result from actual or rumored hostile takeover attempts. These provisions might also have the effect of preventing changes in our management. It is also possible that these provisions could make it more difficult to accomplish transactions that stockholders might otherwise deem to be in their best interests.

 

Transfer Agent and Registrar

 

Upon the completion of this offering, the transfer agent and registrar for our common stock will be Computershare Trust Company, N.A. The transfer agent’s address is 250 Royall Street, Canton, MA 02021.

 

Exchange Listing

 

We have applied to list our common stock on the New York Stock Exchange under the symbol “ATEN.”

 

128


Table of Contents

SHARES ELIGIBLE FOR FUTURE SALE

 

Prior to this offering, there has been no public market for shares of our common stock. Future sales of substantial amounts of shares of common stock, including shares issued upon the exercise of outstanding options, in the public market after this offering, or the possibility of these sales occurring, could adversely affect the prevailing market price for our common stock or impair our ability to raise equity capital.

 

Upon the completion of this offering, a total of 59,029,124 shares of common stock will be outstanding, assuming the automatic conversion of all outstanding shares of preferred stock into shares of common stock upon the completion of this offering. Of these shares, all 12,500,000 shares of common stock sold in this offering by us and the selling stockholders, plus any shares sold upon exercise of the underwriters’ over-allotment option, will be freely tradable in the public market without restriction or further registration under the Securities Act, unless these shares are held by “affiliates,” as that term is defined in Rule 144 under the Securities Act.

 

The remaining 46,529,124 shares of common stock will be “restricted securities,” as that term is defined in Rule 144 under the Securities Act. These restricted securities are eligible for public sale only if they are registered under the Securities Act or if they qualify for an exemption from registration under Rules 144 or 701 under the Securities Act, which are summarized below.

 

Subject to the lock-up agreements described below and the provisions of Rules 144 and 701 under the Securities Act, these restricted securities will be available for sale in the public market at various times beginning more than 180 days after the date of this prospectus.

 

In addition, of the 9,971,381 shares of our common stock that were subject to stock options outstanding as of December 31, 2013, options to purchase 4,805,692 shares of common stock were vested as of December 31, 2013 and will be eligible for sale 180 days following the effective date of this offering.

 

Rule 144

 

In general, under Rule 144 as currently in effect, once we have been subject to public company reporting requirements for at least 90 days, a person who is not deemed to have been one of our affiliates for purposes of the Securities Act at any time during the 90 days preceding a sale and who has beneficially owned the shares proposed to be sold for at least six months, including the holding period of any prior owner other than our affiliates, is entitled to sell such shares without complying with the manner of sale, volume limitation, or notice provisions of Rule 144, subject to compliance with the public information requirements of Rule 144. If such a person has beneficially owned the shares proposed to be sold for at least one year, including the holding period of any prior owner other than our affiliates, then such person is entitled to sell such shares without complying with any of the requirements of Rule 144.

 

In general, under Rule 144, as currently in effect, our affiliates or persons selling shares on behalf of our affiliates are entitled to sell upon expiration of the lock-up agreements described above, within any three-month period beginning 90 days after the date of this prospectus, a number of shares that does not exceed the greater of:

 

   

1% of the number of shares of common stock then outstanding, which will equal approximately 590,291 shares immediately after this offering; or

 

   

the average weekly trading volume of the common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to such sale.

 

Sales under Rule 144 by our affiliates or persons selling shares on behalf of our affiliates are also subject to certain manner of sale provisions and notice requirements and to the availability of current public information about us.

 

129


Table of Contents

Rule 701

 

Rule 701 generally allows a stockholder who purchased shares of our common stock pursuant to a written compensatory plan or contract and who is not deemed to have been an affiliate of our company during the immediately preceding 90 days to sell these shares in reliance upon Rule 144, but without being required to comply with the public information, holding period, volume limitation, or notice provisions of Rule 144. Rule 701 also permits affiliates of our company to sell their Rule 701 shares under Rule 144 without complying with the holding period requirements of Rule 144. However, all holders of Rule 701 shares are required to wait until 90 days after the date of this prospectus before selling such shares pursuant to Rule 701.

 

Lock-Up Agreements

 

We, the selling stockholders, all of our directors and officers, and the holders of substantially all of our common stock, or securities exercisable for or convertible into our common stock outstanding immediately prior to this offering, have agreed that, without the prior written consent of Morgan Stanley & Co. LLC on behalf of the underwriters, we and they will not, during the period ending 180 days after the date of this prospectus:

 

   

offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any shares of common stock or any securities convertible into or exercisable or exchangeable for shares of common stock; or

 

   

enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of our common stock;

 

whether any such transaction described above is to be settled by delivery of shares of our common stock or such other securities, in cash or otherwise.

 

Registration Rights

 

Upon completion of this offering, the holders of 36,497,114 shares of common stock or their transferees will be entitled to various rights with respect to the registration of these shares under the Securities Act, subject to certain limitations. Registration of these shares under the Securities Act would result in these shares becoming fully tradable without restriction under the Securities Act immediately upon the effectiveness of the registration, except for shares purchased by affiliates. See “Description of Capital Stock—Registration Rights” for additional information.

 

Registration Statements on Form S-8

 

Upon the completion of this offering, we intend to file a registration statement on Form S-8 under the Securities Act to register all of the shares of common stock issued or reserved for issuance under our stock-based compensation plans. Shares covered by this registration statement will be eligible for sale in the public market, upon the expiration or release from the terms of the lock-up agreements and subject to vesting of such shares.

 

130


Table of Contents

MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES TO NON-U.S. HOLDERS

 

The following is a summary of the material U.S. federal income tax consequences and certain U.S. federal estate tax consequences to non-U.S. holders (as defined below) of the purchase, ownership and disposition of our common stock, but does not purport to be a complete analysis of all the potential tax considerations relating thereto. This summary is based upon the provisions of the Internal Revenue Code of 1986, as amended, or the Code, Treasury regulations promulgated thereunder, administrative rulings and judicial decisions, all as of the date hereof. These authorities may be changed, possibly retroactively, so as to result in U.S. federal income tax consequences different from those set forth below. We have not sought any ruling from the Internal Revenue Service, or the IRS, with respect to the statements made and the conclusions reached in the following summary, and there can be no assurance that the IRS will agree with such statements and conclusions.

 

This summary also does not address the tax considerations arising under the laws of any non-U.S., state or local jurisdiction, or under U.S. federal gift, generation-skipping and, except to the limited extent set forth below, estate tax laws. In addition, this discussion does not address the potential application of the Medicare contribution tax or any tax considerations applicable to an investor’s particular circumstances or to investors that may be subject to special tax rules, including, without limitation:

 

   

banks, insurance companies, or other financial institutions;

 

   

persons subject to the alternative minimum tax;

 

   

tax-exempt organizations;

 

   

controlled foreign corporations, passive foreign investment companies, and corporations that accumulate earnings to avoid U.S. federal income tax;

 

   

dealers in securities or currencies;

 

   

traders in securities that elect to use a mark-to-market method of accounting for their securities holdings;

 

   

persons that own, or are deemed to own, more than five percent of our capital stock (except to the extent specifically set forth below);

 

   

certain former citizens or long-term residents of the United States;

 

   

persons who hold our common stock as a position in a hedging transaction, “straddle,” “conversion transaction,” or other risk reduction transaction;

 

   

persons who acquire our common stock through the exercise of employee stock options or otherwise as compensation for services;

 

   

persons who do not hold our common stock as a capital asset within the meaning of Section 1221 of the Code; or

 

   

persons deemed to sell our common stock under the constructive sale provisions of the Code.

 

In addition, if a partnership or entity classified as a partnership for U.S. federal income tax purposes owns our common stock, the tax treatment of a partner generally will depend on the status of the partner and upon the activities of the partnership. Accordingly, partnerships that own our common stock, and partners in such partnerships, should consult their tax advisors.

 

You are urged to consult your tax advisor with respect to the application of the U.S. federal income tax laws to your particular situation, as well as any tax consequences of the purchase, ownership, and disposition of our common stock arising under the U.S. federal estate, generation-skipping, or gift tax rules or under the laws of any state, local, non-U.S., or other taxing jurisdiction or under any applicable tax treaty.

 

131


Table of Contents

Non-U.S. Holder Defined

 

For purposes of this discussion, you are a non-U.S. holder if you are a beneficial owner of our common stock (other than a partnership or entity classified as a partnership for U.S. federal income tax purposes) that is not:

 

   

an individual citizen or resident of the United States (for U.S. federal income tax purposes);

 

   

a corporation or other entity taxable as a corporation for U.S. federal income tax purposes created or organized in the United States or under the laws of the United States or any political subdivision thereof;

 

   

an estate whose income is subject to U.S. federal income tax regardless of its source; or

 

   

a trust (x) whose administration is subject to the primary supervision of a U.S. court and which has one or more U.S. persons who have the authority to control all substantial decisions of the trust or (y) which has made an election to be treated as a U.S. person.

 

Distributions

 

We have not made any distributions on our common stock and do not intend to do so in the foreseeable future. However, if we do make distributions on our common stock, those payments will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. To the extent those distributions exceed both our current and our accumulated earnings and profits, they will constitute a return of capital and will first reduce your basis in our common stock, but not below zero. Any excess will be treated as gain from the sale of stock and will be treated as described below under “Gain on Disposition of Common Stock.”

 

Any dividend paid to you generally will be subject to U.S. withholding tax either at a rate of 30% of the gross amount of the dividend or such lower rate as may be specified by an applicable income tax treaty. In order to receive a reduced treaty rate, you must provide us with an IRS Form W-8BEN or other appropriate version of IRS Form W-8 certifying qualification for the reduced rate. A non-U.S. holder eligible for a reduced rate of U.S. withholding tax pursuant to an income tax treaty may obtain a refund of any excess amounts withheld by filing an appropriate claim for refund with the IRS. If the non-U.S. holder holds the stock through a financial institution or other agent acting on the non-U.S. holder’s behalf, the non-U.S. holder will be required to provide appropriate documentation to the agent, which then will be required to provide certification to us or our paying agent, either directly or through other intermediaries.

 

Dividends received by you that are effectively connected with your conduct of a U.S. trade or business (and, if required by an applicable income tax treaty, attributable to a permanent establishment maintained by you in the United States) are generally exempt from such withholding tax. In order to obtain this exemption, you must provide us with an IRS Form W-8ECI or other applicable IRS Form W-8 properly certifying such exemption. Such effectively connected dividends, although not subject to withholding tax, are taxed at the same graduated rates applicable to U.S. persons, net of certain deductions and credits. In addition, if you are a corporate non-U.S. holder, dividends you receive that are effectively connected with your conduct of a U.S. trade or business may also be subject to a branch profits tax at a rate of 30% or such lower rate as may be specified by an applicable income tax treaty.

 

Gain on Disposition of Common Stock

 

Subject to the discussion below regarding legislation related to foreign accounts, you generally will not be required to pay U.S. federal income tax on any gain realized upon the sale or other disposition of our common stock unless:

 

   

the gain is effectively connected with your conduct of a U.S. trade or business (and, if required by an applicable income tax treaty, the gain is attributable to a permanent establishment maintained by you in the United States);

 

132


Table of Contents
   

you are an individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met; or

 

   

our common stock constitutes a U.S. real property interest by reason of our status as a “United States real property holding corporation,” or USRPHC, for U.S. federal income tax purposes at any time within the shorter of the five-year period preceding your disposition of, or your holding period for, our common stock.

 

We believe that we are not currently and will not become a USRPHC. However, because the determination of whether we are a USRPHC depends on the fair market value of our U.S. real property relative to the fair market value of our other business assets, there can be no assurance that we will not become a USRPHC in the future. Even if we become a USRPHC, however, as long as our common stock is regularly traded on an established securities market, such common stock will be treated as U.S. real property interests only if you actually or constructively hold more than five percent of such regularly traded common stock at any time during the shorter of the five-year period preceding your disposition of, or your holding period for, our common stock.

 

If you are a non-U.S. holder described in the first bullet above, you will be required to pay tax on the net gain derived from the sale under regular graduated U.S. federal income tax rates, and a corporate non-U.S. holder described in the first bullet above also may be subject to the branch profits tax at a 30% rate, or such lower rate as may be specified by an applicable income tax treaty. If you are an individual non-U.S. holder described in the second bullet above, you will be required to pay a flat 30% tax on the gain derived from the sale, which tax may be offset by U.S. source capital losses for the year. You should consult any applicable income tax or other treaties that may provide for different rules.

 

U.S. Federal Estate Tax

 

Our common stock beneficially owned by an individual who is not a citizen or resident of the United States (as defined for U.S. federal estate tax purposes) at the time of his or her death will generally be includable in the decedent’s gross estate for U.S. federal estate tax purposes, unless an applicable estate tax treaty provides otherwise.

 

Backup Withholding and Information Reporting

 

Generally, we must report annually to the IRS the amount of dividends paid to you, your name and address, and the amount of tax withheld, if any. A similar report will be sent to you. Pursuant to applicable income tax treaties or other agreements, the IRS may make these reports available to tax authorities in your country of residence.

 

Payments of dividends or of proceeds on the disposition of stock made to you may be subject to information reporting and backup withholding at a current rate of 28% unless you establish an exemption, for example, by properly certifying your non-U.S. status on a Form W-8BEN or another appropriate version of IRS Form W-8. Notwithstanding the foregoing, backup withholding and information reporting may apply if either we or our paying agent has actual knowledge, or reason to know, that you are a U.S. person.

 

Backup withholding is not an additional tax; rather, the U.S. income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund, or credit may generally be obtained from the IRS, provided that the required information is furnished to the IRS in a timely manner.

 

Foreign Account Tax Compliance

 

Legislation commonly referred to as the Foreign Account Tax Compliance Act or “FATCA” imposes withholding tax at a rate of 30% on dividends on and gross proceeds from the sale or other disposition of our

 

133


Table of Contents

common stock paid to “foreign financial institutions” (as specially defined under these rules), unless such institution enters into an agreement with the U.S. government to withhold on certain payments and to collect and provide to the U.S. tax authorities substantial information regarding the U.S. account holders of such institution (which includes certain equity and debt holders of such institution, as well as certain account holders that are foreign entities with U.S. owners) or otherwise establishes an exemption. The legislation also generally will impose a U.S. federal withholding tax of 30% on dividends on the gross proceeds of a disposition of our common stock paid to a “non-financial foreign entities” (as specially defined for purposes of these rules) unless such entity provides the withholding agent with a certification identifying certain substantial direct and indirect U.S. owners of the entity, certifies that there are none or otherwise establishes an exemption. Under certain transition rules, withholding under FATCA on withholdable payments to foreign financial institutions and non-financial foreign entities is expected to apply after December 31, 2016 with respect to gross proceeds of a sale or other disposition of stock in a U.S. corporation, including our common stock, and after June 30, 2014 with respect to dividends on our common stock. An intergovernmental agreement between the United States and an applicable foreign country may modify the requirements described in this paragraph. Non-U.S. holders should consult their own tax advisors regarding the possible implications of this legislation on their investment in our common stock.

 

Each prospective investor should consult its own tax advisor regarding the particular U.S. federal, state and local and non-U.S. tax consequences of the purchase, ownership and disposition of our common stock, including the consequences of any proposed change in applicable laws.

 

134


Table of Contents

UNDERWRITERS (CONFLICTS OF INTEREST)

 

Under the terms and subject to the conditions contained in an underwriting agreement dated the date of this prospectus, the underwriters named below, for whom Morgan Stanley & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC are acting as representatives, have severally agreed to purchase, and we and the selling stockholders have agreed to sell to them, severally, the number of shares indicated below:

 

Name

   Number of
Shares
 

Morgan Stanley & Co. LLC

  

Merrill Lynch, Pierce, Fenner & Smith

                      Incorporated

  

J.P. Morgan Securities LLC

  

RBC Capital Markets LLC

  

Pacific Crest Securities LLC.

  

Oppenheimer & Co. Inc.

  
  

 

 

 

Total

     12,500,000   
  

 

 

 

 

The underwriters and the representatives are collectively referred to as the “underwriters” and the “representatives.” The underwriters are offering the shares of common stock subject to their acceptance of the shares from us and the selling stockholders and subject to prior sale. The underwriting agreement provides that the obligations of the several underwriters to pay for and accept delivery of the shares of common stock offered by this prospectus are subject to the approval of certain legal matters by their counsel and to certain other conditions. The underwriters are obligated to take and pay for all of the shares of common stock offered by this prospectus if any such shares are taken. However, the underwriters are not required to take or pay for the shares covered by the underwriters’ over-allotment option described below. If an underwriter defaults, the underwriting agreement provides that the purchase commitments of the non-defaulting underwriters may be increased.

 

The underwriters initially propose to offer part of the shares of common stock directly to the public at the initial public offering price listed on the cover page of this prospectus and part to certain dealers at a price that represents a concession not in excess of $         a share under the initial public offering price. Any underwriter may allow a concession not in excess of $         a share to other underwriters or to certain dealers. After the initial offering of the shares of common stock, the offering price and other selling terms may from time to time be varied by the representative. The offering of the shares by the underwriters is subject to receipt and acceptance and subject to the underwriters’ right to reject any order in whole or in part.

 

The selling stockholders have granted to the underwriters an option, exercisable for 30 days from the date of this prospectus, to purchase up to 1,875,000 additional shares of common stock at the initial public offering price listed on the cover page of this prospectus, less underwriting discounts and commissions. The underwriters may exercise this option solely for the purpose of covering over-allotments, if any, made in connection with the offering of the shares of common stock offered by this prospectus. To the extent the option is exercised, each underwriter will become obligated, subject to certain conditions, to purchase about the same percentage of the additional shares of common stock as the number listed next to the underwriter’s name in the preceding table bears to the total number of shares of common stock listed next to the names of all underwriters in the preceding table.

 

135


Table of Contents

The following table shows the per share and total public offering price, underwriting discounts and commissions, and proceeds before expenses to us and the selling stockholders. These amounts are shown assuming both no exercise and full exercise of the underwriters’ option to purchase up to an additional             shares of our common stock.

 

     Total  
     Per Share      No Exercise      Full Exercise  

Public offering price

   $                    $                    $                

Underwriting discounts and commissions paid by:

        

Us

        

Selling stockholders

        

Proceeds, before expenses, to us

        

Proceeds, before expenses, to selling stockholders

        

 

The estimated offering expenses payable by us, exclusive of the underwriting discounts and commissions, are approximately $4.5 million, which includes legal, accounting and printing costs and various other fees associated with the registration and listing of our common stock. We have agreed to reimburse the underwriters for certain Financial Industry Regulatory Authority, Inc., or FINRA, related expenses incurred by them in connection with this offering up to $30,000 as set forth in the underwriting agreement.

 

The underwriters have informed us that they do not intend sales to discretionary accounts to exceed 5% of the total number of shares of common stock offered by them.

 

We have applied to list our common stock on the New York Stock Exchange under the trading symbol “ATEN.”

 

We, the selling stockholders, all of our directors and officers, and the holders of substantially all of our common stock, or securities exercisable for or convertible into our common stock outstanding immediately prior to this offering have agreed that, without the prior written consent of Morgan Stanley & Co. LLC on behalf of the underwriters, we and they will not, during the period ending 180 days after the date of this prospectus:

 

   

offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase lend or otherwise transfer or dispose of, directly or indirectly, any shares of common stock or other securities convertible into or exercisable or exchangeable for common stock;

 

   

enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the common stock, whether any such transaction described in these first two bullets is to be settled by delivery of common stock or such other securities, in cash or otherwise; or

 

   

in our case, file any registration statement with the SEC relating to the offering of any shares of common stock or any securities convertible into or exercisable or exchangeable for common stock.

 

The foregoing may be waived by Morgan Stanley & Co. LLC on behalf of the underwriters. The restrictions described in the immediately preceding paragraph shall not apply to:

 

   

transactions by a security holder relating to shares of common stock or other securities acquired in open market transactions after the completion of this offering, provided that no filing under Section 16(a) of the Securities Exchange Act of 1934, or the Exchange Act, shall be required or shall be voluntarily made in connection with subsequent sales of Common Stock or other securities acquired in such open market transactions;

 

   

the transfer by a security holder of shares of common stock or any securities convertible into or exercisable or exchangeable for common stock (i) to an immediate family member of a security holder or to a trust formed for the benefit of such an immediate family member, (ii) by bona fide gift, will or

 

136


Table of Contents
 

intestacy, (iii) if the securityholder is a corporation, partnership, limited liability company or other business entity (A) to another corporation, partnership, limited liability company or other business entity that is an affiliate of such securityholder or (B) as part of a disposition, transfer or distribution by a securityholder to its equity holders or (iv) if the securityholder is a trust, to a trustor or beneficiary of the trust; provided that in each case, each transferee, donee or distributee signs and delivers a lock-up agreement prior to or upon such transfer or distribution, and no filing under Section 16(a) of the Exchange Act, reporting a reduction of beneficial ownership of shares of common stock, shall be required or voluntarily made during the restricted period;

 

   

the receipt by a securityholder from the company of shares of common stock upon the vesting of restricted stock awards issued pursuant to the company’s equity incentive plans or the transfer by a securityholder of shares of common stock or any securities convertible into common stock to the company upon a vesting event of the company’s securities or upon the exercise of options or warrants to purchase the company’s securities, in each case on a “cashless” or “net exercise” basis or to cover tax withholding obligations of the securityholders in connection with such vesting or exercise, provided that no filing under Section 16(a) of the Exchange Act shall be required or voluntarily made during the restricted period;

 

   

the disposition by a securityholder of shares of common stock to the company solely in connection with the payment of taxes due with respect to the vesting of restricted stock awards issued pursuant to the company’s equity incentive plans described in this registration statement, provided that no filing under Section 16(a) of the Exchange Act shall be required or voluntarily made during the restricted period in connection with such disposition;

 

   

the transfer by a securityholder of shares of common stock or any security convertible into or exercisable or exchangeable for common stock to the company, pursuant to agreements under which the company has the option to repurchase such shares or securities or a right of first refusal with respect to transfers of such shares or securities, provided that no filing under Section 16(a) of the Exchange Act, reporting a reduction of beneficial ownership of shares of common stock, shall be required or voluntarily made during the restricted period;

 

   

the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of common stock, provided that such plan does not provide for the transfer of common stock during the restricted period and no public announcement or filing under the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made by or on behalf of a securityholder or the company;

 

   

the conversion of the outstanding preferred stock of the company into shares of common stock of the company, provided that such shares of common stock remain subject to the terms of this letter;

 

   

if the securityholder is an individual, the transfer of shares of common stock or any security convertible into or exercisable or exchangeable for common stock that occurs by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, provided that the securityholder uses its reasonable best efforts to cause the transferee to sign and deliver a lock-up agreement prior to such transfer, and provided further, that any filing under Section 16(a) of the Exchange Act that is required to be made during the restricted period as a result of such transfer, states that such transfer has occurred by operation of law; or

 

   

the sale and transfer by a securityholder of shares of common stock to the underwriters pursuant to the underwriting agreement.

 

Morgan Stanley & Co. LLC, in its sole discretion, may release the common stock and other securities subject to the lock-up agreements described above in whole or in part at any time with or without notice.

 

In order to facilitate our initial public offering of common stock, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of common stock. Specifically, the underwriters

 

137


Table of Contents

may sell more shares than they are obligated to purchase under the underwriting agreement, creating a short position. A short sale is covered if the short position is no greater than the number of shares available for purchase by the underwriters under the over-allotment option. The underwriters can close out a covered short sale by exercising the over-allotment option or purchasing shares in the open market. In determining the source of shares to close out a covered short sale, the underwriters will consider, among other things, the open market price of shares compared to the price available under the over-allotment option. The underwriters may also sell shares in excess of the over-allotment option, creating a naked short position. The underwriters must close out any naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the common stock in the open market after pricing that could adversely affect investors who purchase in our initial public offering. In addition, to stabilize the price of common stock, the underwriters may bid for, and purchase, shares of common stock in the open market. The underwriting syndicate also may reclaim selling concessions allowed to an underwriter or a dealer for distributing common stock in the offering, if the syndicate repurchases previously distributed common stock to cover syndicate short positions or to stabilize the price of common stock. These activities may raise or maintain the market price of common stock above independent market levels or prevent or retard a decline in the market price of the common stock. The underwriters are not required to engage in these activities and may end any of these activities at any time. The underwriters may also impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the representatives have repurchased shares sold by or for the account of such underwriter in stabilizing or short covering transactions.

 

We, the selling stockholders and the several underwriters have agreed to indemnify each other against certain liabilities, including liabilities under the Securities Act.

 

A prospectus in electronic format may be made available on websites maintained by one or more underwriters, or selling group members, if any, participating in our initial public offering. The representatives may agree to allocate a number of shares of common stock to underwriters for sale to their online brokerage account holders. Internet distributions will be allocated by the representatives to underwriters that may make Internet distributions on the same basis as other allocations.

 

The underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory, investment management, principal investment, hedging, financing and brokerage activities. Certain of the underwriters and their respective affiliates have, from time to time, performed, and may in the future perform, various financial advisory and investment banking services for us, for which they received or will receive customary fees and expenses.

 

In the ordinary course of their various business activities, the underwriters and their respective affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities and instruments. Such investment and securities activities may involve our securities and instruments (directly, as collateral securing other obligations or otherwise). The underwriters and their respective affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or instruments and may at any time hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.

 

In the ordinary course of business, we have sold, and may in the future sell, products or services to one or more of the underwriters or their respective affiliates in arms-length transactions on market competitive terms.

 

Royal Bank of Canada, an affiliate of RBC Capital Markets LLC, is the administrative agent and a lender under the Credit Agreement dated as of September 30, 2013, or the Credit Agreement, and affiliates of J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated are lenders under the Credit

 

138


Table of Contents

Agreement. Royal Bank of Canada, an affiliate of RBC Capital Markets LLC, J.P. Morgan Securities LLC, and Merrill Lynch, Pierce, Fenner & Smith Incorporated are joint lead arrangers and joint bookrunners under the Credit Agreement. J.P. Morgan Securities LLC is the Syndication Agent and Merrill Lynch, Pierce, Fenner & Smith Incorporated is the Documentation Agent under the Credit Agreement.

 

Pricing of the Offering

 

Prior to our initial public offering, there has been no public market for our common stock. The initial public offering price will be determined by negotiations between us, the selling stockholders and the representatives of the underwriters. Among the factors considered in determining the initial public offering price were our future prospects and those of our industry in general, our sales, earnings and certain other financial and operating information in recent periods, and the price-earnings ratios, price-sales ratios, market prices of securities, and certain financial and operating information of companies engaged in activities similar to ours. The estimated initial public offering price range set forth on the cover page of this preliminary prospectus is subject to change as a result of market conditions and other factors. Neither we nor the underwriters can assure investors that an active trading market for the shares will develop, or that after the offering the shares will trade in the public market at or above the initial public offering price.

 

Conflicts of Interest

 

We may use a portion of the net proceeds that we receive from this offering to pay down certain existing debt obligations. RBC Capital Markets LLC, J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, three of the participating underwriters, are affiliates respectively of Royal Bank of Canada, JPMorgan Chase Bank, N.A. and Bank of America, N.A., which are each lenders under the Credit Agreement. Because we may use more than 5% of the net proceeds that we receive from this offering to reduce the outstanding balance under the Credit Agreement, RBC Capital Markets LLC, J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated may each be deemed to have a “conflict of interest” with us within the meaning of Rule 5121(f)(5)(C) of the Conduct Rules of FINRA.

 

Selling Restrictions

 

European Economic Area

 

In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive, or, a Relevant Member State, an offer to the public of any shares of our common stock may not be made in that Relevant Member State, except that an offer to the public in that Relevant Member State of any shares of our common stock may be made at any time under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State:

 

  (a)   to any legal entity which is a qualified investor as defined in the Prospectus Directive;

 

  (b)   to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or

 

  (c)   in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of shares of our common stock shall result in a requirement for the publication by us or any underwriter of a prospectus pursuant to Article 3 of the Prospectus Directive.

 

For the purposes of this provision, the expression an “offer to the public” in relation to any shares of our common stock in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and any shares of our common stock to be offered so as to enable an investor to decide to purchase any shares of our common stock, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus

 

139


Table of Contents

Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State, and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.

 

United Kingdom

 

This prospectus and any other material in relation to the shares described herein is only being distributed to, and is only directed at, persons in the United Kingdom that are qualified investors within the meaning of Article 2(1)(e) of the Prospective Directive (“qualified investors”) that also (i) have professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended, or the Order, (ii) who fall within Article 49(2)(a) to (d) of the Order or (iii) to whom it may otherwise lawfully be communicated (all such persons together being referred to as “relevant persons”). The shares are only available to, and any invitation, offer or agreement to purchase or otherwise acquire such shares will be engaged in only with, relevant persons. This prospectus and its contents are confidential and should not be distributed, published or reproduced (in whole or in part) or disclosed by recipients to any other person in the United Kingdom. Any person in the United Kingdom that is not a relevant person should not act or rely on this prospectus or any of its contents.

 

Hong Kong

 

The shares may not be offered or sold by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), or (ii) to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) and any rules made thereunder, or (iii) in other circumstances which do not result in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), and no advertisement, invitation or document relating to the shares may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to shares which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap.571 Laws of Hong Kong) and any rules made thereunder.

 

Singapore

 

This prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the shares may not be circulated or distributed, nor may the shares be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (SFA), (ii) to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.

 

Where the shares are subscribed or purchased under Section 275 by a relevant person which is: (a) a corporation (which is not an accredited investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (b) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares, debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and interest in that trust shall not be transferable for six months after that corporation or that trust has acquired the shares under Section 275 except: (i) to an institutional investor under Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA; (ii) where no consideration is given for the transfer; or (iii) by operation of law.

 

140


Table of Contents

Japan

 

The securities have not been and will not be registered under the Financial Instruments and Exchange Law of Japan (the Financial Instruments and Exchange Law) and each underwriter has agreed that it will not offer or sell any securities, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan.

 

Notice to Prospective Investors in Switzerland

 

The shares may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (SIX) or on any other stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland. Neither this document nor any other offering or marketing material relating to the shares or the offering may be publicly distributed or otherwise made publicly available in Switzerland.

 

Neither this document nor any other offering or marketing material relating to the offering, the company, or the shares have been or will be filed with or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of shares will not be supervised by, the Swiss Financial Market Supervisory Authority and the offer of shares has not been and will not be authorized under the Swiss Federal Act on Collective Investment Schemes, or the CISA. The investor protection afforded to acquirers of interests in collective investment schemes under the CISA does not extend to acquirers of the shares.

 

Notice to Prospective Investors in the Dubai International Financial Centre

 

This prospectus relates to an Exempt Offer in accordance with the Offered Securities Rules of the Dubai Financial Services Authority, or the DFSA. This prospectus is intended for distribution only to persons of a type specified in the Offered Securities Rules of the DFSA. It must not be delivered to, or relied on by, any other person. The DFSA has no responsibility for reviewing or verifying any documents in connection with Exempt Offers. The DFSA has not approved this prospectus nor taken steps to verify the information set forth herein and has no responsibility for the prospectus. The shares to which this prospectus relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the shares offered should conduct their own due diligence on the shares. If you do not understand the contents of this prospectus you should consult an authorized financial advisor.

 

LEGAL MATTERS

 

The validity of the shares of common stock offered hereby will be passed upon for us by Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto, California. Pillsbury Winthrop Shaw Pittman LLP, Palo Alto, California, is acting as counsel to the underwriters in connection with certain legal matters relating to the shares of common stock offered by this prospectus.

 

141


Table of Contents

EXPERTS

 

The consolidated financial statements as of December 31, 2012 and 2013, and for each of the three years ended December 31, 2013, included in this Prospectus and Registration Statement, of A10 Networks, Inc. have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report appearing herein. Such consolidated financial statements have been so included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.

 

ADDITIONAL INFORMATION

 

We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the shares of common stock offered by this prospectus. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement, some of which is contained in exhibits to the registration statement as permitted by the rules and regulations of the SEC. For further information with respect to us and our common stock, we refer you to the registration statement, including the exhibits filed as a part of the registration statement. Statements contained in this prospectus concerning the contents of any contract or any other document is not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, please see the copy of the contract or document that has been filed. Each statement is this prospectus relating to a contract or document filed as an exhibit is qualified in all respects by the filed exhibit. You may obtain copies of this information by mail from the Public Reference Section of the SEC, 100 F Street, N.E., Room 1580, Washington, D.C. 20549, at prescribed rates. You may obtain information on the operation of the public reference rooms by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet website that contains reports, proxy statements, and other information about issuers, like us, that file electronically with the SEC. The address of that website is www.sec.gov .

 

As a result of this offering, we will become subject to the information and reporting requirements of the Securities Exchange Act of 1934 and, in accordance with this law, will file periodic reports, proxy statements, and other information with the SEC. These periodic reports, proxy statements, and other information will be available for inspection and copying at the SEC’s public reference facilities and the website of the SEC referred to above. We also maintain a website at www.a10networks.com . Upon completion of this offering, you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. Information contained on our website is not a part of this prospectus and the inclusion of our website address in this prospectus is an inactive textual reference only.

 

142


Table of Contents

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

 

     Page  

A10 NETWORKS, INC.

  

Report of Independent Registered Public Accounting Firm

     F-2   

Consolidated Balance Sheets

     F-3   

Consolidated Statements of Operations

     F-4   

Consolidated Statements of Redeemable Convertible Preferred Stock, Convertible Preferred Stock and Stockholders’ Deficit

     F-5   

Consolidated Statements of Cash Flows

     F-6   

Notes to Consolidated Financial Statements

     F-7   

 

F-1


Table of Contents

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

The Board of Directors and Stockholders of

A10 Networks, Inc.

San Jose, California

 

We have audited the accompanying consolidated balance sheets of A10 Networks, Inc. and subsidiaries (the “Company”) as of December 31, 2012 and 2013, and the related consolidated statements of operations, redeemable convertible preferred stock, convertible preferred stock, and stockholders’ deficit, and cash flows for each of the three years in the period ended December 31, 2013. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.

 

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

 

In our opinion, such financial statements present fairly, in all material respects, the financial position of A10 Networks, Inc. as of December 31, 2012 and 2013, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2013 in conformity with accounting principles generally accepted in the United States of America.

 

/s/ Deloitte & Touche LLP

 

San Jose, California

February 18, 2014

(except for Note 15, as to which the date is March 7, 2014)

 

F-2


Table of Contents

A10 NETWORKS, INC.

 

Consolidated Balance Sheets

(In thousands)

 

     December 31,     Pro Forma
December 31,
2013
 
   2012     2013    
                 (Unaudited)  

ASSETS

      

CURRENT ASSETS:

      

Cash and cash equivalents

   $ 23,867      $ 20,793     

Accounts receivable, net of allowances of $1,994 and $2,738 as of December 31, 2012 and 2013

     23,948        37,704     

Inventory

     14,315        17,166     

Prepaid expenses and other assets

     4,866        3,056     
  

 

 

   

 

 

   

Total current assets

     66,996        78,719     

Property and equipment, net

     7,769        9,801     

Intangible assets, net

     1,197        1,061     

Other assets

     832        4,213     
  

 

 

   

 

 

   

TOTAL ASSETS

   $ 76,794      $ 93,794     
  

 

 

   

 

 

   

LIABILITIES, REDEEMABLE CONVERTIBLE PREFERRED STOCK, CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ DEFICIT

      

CURRENT LIABILITIES:

      

Accounts payable

   $ 5,641      $ 9,228     

Accrued liabilities

     12,010        15,514        300   

Accrued litigation expenses

     83,603        10,407     

Revolving credit facility

     5,000            

Term loan

     631            

Deferred revenue

     19,374        28,448     

Convertible preferred stock warrant liability

     2,197            
  

 

 

   

 

 

   

 

 

 

Total current liabilities

     128,456        63,597        300   

Revolving credit facility

            20,000     

Deferred revenue, noncurrent portion

     8,333        12,784     

Accrued litigation expenses, noncurrent portion

     7,240        3,639     

Other noncurrent liabilities

     2,920        2,479     
  

 

 

   

 

 

   

 

 

 

TOTAL LIABILITIES

     146,949        102,499        300   
  

 

 

   

 

 

   

 

 

 

Commitments and Contingencies (Note 6)

      

Redeemable convertible preferred stock, no par value—115 shares authorized as of December 31, 2013 (unaudited); 80 shares issued and outstanding as of December 31, 2013; aggregate liquidation preference of $80,000 as of December 31, 2013, actual; no shares issued and outstanding as of December 31, 2013, pro forma (unaudited)

            81,426          

Convertible preferred stock, no par value—30,572 and 30,569 shares authorized as of December 31, 2012 and 2013; 30,122 and 30,569 shares issued and outstanding as of December 31, 2012 and 2013; aggregate liquidation preference of $42,884 as of December 31, 2013, actual; no shares issued and outstanding as of December 31, 2013, pro forma (unaudited)

     41,737        44,749          

STOCKHOLDERS’ DEFICIT:

      

Common stock, $0.00001 par value—50,933 and 65,600 shares authorized as of December 31, 2012 and 2013; 9,246 and 10,032 shares issued and outstanding as of December 31, 2012 and 2013, actual; 50,029 shares issued and outstanding as of December 31, 2013, pro forma (unaudited)

                   1   

Additional paid-in capital

     8,077        12,185        138,359   

Accumulated deficit

     (119,969     (147,065     (147,365
  

 

 

   

 

 

   

 

 

 

TOTAL STOCKHOLDERS’ DEFICIT

     (111,892     (134,880   $ (9,005
  

 

 

   

 

 

   

 

 

 

TOTAL LIABILITIES, REDEEMABLE CONVERTIBLE PREFERRED STOCK, CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ DEFICIT

   $ 76,794      $ 93,794     
  

 

 

   

 

 

   

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-3


Table of Contents

A10 NETWORKS, INC.

 

Consolidated Statements of Operations

(In thousands, except per share data)

 

     Year Ended
December 31,
 
     2011     2012     2013  

Revenue:

      

Products

   $ 79,763      $ 99,891      $ 112,045   

Services

     11,515        20,175        29,693   
  

 

 

   

 

 

   

 

 

 

Total revenue

     91,278        120,066        141,738   

Cost of revenue:

      

Products

     16,442        18,619        25,284   

Services

     2,033        5,891        8,112   
  

 

 

   

 

 

   

 

 

 

Total cost of revenue

     18,475        24,510        33,396   
  

 

 

   

 

 

   

 

 

 

Gross profit

     72,803        95,556        108,342   

Operating expenses:

      

Sales and marketing

     34,504        51,323        70,756   

Research and development

     16,652        25,513        33,348   

General and administrative

     3,110        10,225        15,556   

Litigation

     9,524        95,515        11,525   
  

 

 

   

 

 

   

 

 

 

Total operating expenses

     63,790        182,576        131,185   
  

 

 

   

 

 

   

 

 

 

Income (loss) from operations

     9,013        (87,020     (22,843

Other income (expense), net:

      

Interest expense

     (241     (135     (1,495

Interest income and other income (expense), net

     (618     (2,237     (2,118
  

 

 

   

 

 

   

 

 

 

Total other income (expense), net

     (859     (2,372     (3,613
  

 

 

   

 

 

   

 

 

 

Income (loss) before provision for income taxes

     8,154        (89,392     (26,456

Provision for income taxes

     850        758        640   
  

 

 

   

 

 

   

 

 

 

Net income (loss)

     7,304        (90,150     (27,096

Accretion of redeemable convertible preferred stock dividend

                   (1,982
  

 

 

   

 

 

   

 

 

 

Net income available (loss attributable) to common stockholders

   $ 7,304      $ (90,150   $ (29,078
  

 

 

   

 

 

   

 

 

 

Net income available (loss attributable) to common stockholders, basic

   $ 943      $ (90,150   $ (29,078
  

 

 

   

 

 

   

 

 

 

Net income per share available (loss attributable) to common stockholders:

      

Basic

   $ 0.13      $ (10.80   $ (3.14
  

 

 

   

 

 

   

 

 

 

Diluted

   $ 0.12      $ (10.80   $ (3.14
  

 

 

   

 

 

   

 

 

 

Weighted-average shares used in computing net income per share available (loss attributable) to common stockholders:

      

Basic

     7,397        8,344        9,262   
  

 

 

   

 

 

   

 

 

 

Diluted

     10,403        8,344        9,262   
  

 

 

   

 

 

   

 

 

 

Pro forma net loss per share attributable to common stockholders (unaudited):

      

Basic

       $ (0.62
      

 

 

 

Diluted

       $ (0.62
      

 

 

 

Weighted-average shares used in computing pro forma net loss attributable to common stockholders (unaudited):

      

Basic

         43,723   
      

 

 

 

Diluted

         43,723   
      

 

 

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-4


Table of Contents

A10 NETWORKS, INC.

 

Consolidated Statements of Redeemable Convertible Preferred Stock, Convertible Preferred Stock and Stockholders’ Deficit

(In thousands)

 

    Redeemable
Convertible
Preferred Stock
     Convertible
Preferred Stock
            Common Stock      Addi-
tional
Paid-In
Capital
    Accumu-
lated
Deficit
    Total
Stock-

holders’
Deficit
 
    Shares      Amount      Shares      Amount             Shares     Amount         

Balance—December 31, 2010

          $         30,107       $ 41,648              7,643      $       $ 2,294      $ (37,123   $ (34,829

Stock-based compensation

                                                        1,464               1,464   

Issuance of Series C convertible preferred stock upon exercise of Series C convertible preferred stock warrants for cash

                    4         17                                             

Issuance of common stock upon exercise of stock options, net of unvested portion

                                         777                213               213   

Vesting of early exercised stock options

                                                        258               258   

Repurchase of unvested common stock

                                         (58                             

Net loss

                                                               7,304        7,304   
 

 

 

    

 

 

    

 

 

    

 

 

         

 

 

   

 

 

    

 

 

   

 

 

   

 

 

 

Balance—December 31, 2011

                    30,111         41,665              8,362                4,229        (29,819     (25,590

Stock-based compensation

                                                        2,514               2,514   

Stock-based compensation related to issuance of common stock to nonemployees

                                         6                26               26   

Issuance of Series C convertible preferred stock upon exercise of Series C convertible preferred stock warrants for cash

                    11         72                                             

Issuance of common stock upon exercise of stock options, net of unvested portion

                                         941                599               599   

Vesting of early exercised stock options

                                                        709               709   

Repurchase of unvested common stock

                                         (63                             

Net loss

                                                               (90,150     (90,150
 

 

 

    

 

 

    

 

 

    

 

 

         

 

 

   

 

 

    

 

 

   

 

 

   

 

 

 

Balance—December 31, 2012

                    30,122         41,737              9,246                8,077        (119,969     (111,892

Stock-based compensation

                                                        4,282               4,282   

Issuance of Series D redeemable convertible preferred stock, net of issuance costs of $556

    80         79,444                                                             

Accretion of Series D redeemable convertible preferred stock dividend

            1,982                                             (1,982            (1,982

Issuance of Series C convertible preferred stock upon exercise of Series C convertible preferred stock warrants for cash

                    447         3,012                                             

Issuance of common stock upon exercise of stock options, net of unvested portion

                                         822                1,174               1,174   

Vesting of early exercised stock options

                                                        654               654   

Repurchase of unvested common stock

                                         (33                             

Repurchase of common stock

                                         (3             (20            (20

Net loss

                                                               (27,096     (27,096
 

 

 

    

 

 

    

 

 

    

 

 

         

 

 

   

 

 

    

 

 

   

 

 

   

 

 

 

Balance—December 31, 2013

    80       $ 81,426         30,569       $ 44,749              10,032      $       $ 12,185      $ (147,065   $ (134,880
 

 

 

    

 

 

    

 

 

    

 

 

         

 

 

   

 

 

    

 

 

   

 

 

   

 

 

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-5


Table of Contents

A10 NETWORKS, INC.

 

Consolidated Statements of Cash Flows

(In thousands)

 

     Year Ended
December 31,
 
     2011     2012     2013  

CASH FLOWS FROM OPERATING ACTIVITIES:

      

Net income (loss)

   $ 7,304      $ (90,150   $ (27,096

Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities:

      

Depreciation and amortization

     3,417        5,294        7,080   

Stock-based compensation

     1,464        2,540        4,282   

Provision for doubtful accounts and sales returns

     1,057        1,330        1,788   

Change in fair value of convertible preferred stock warrant liability

     513        804        2   

Unrealized foreign exchange gain (loss)

     31        278        (102

Deferred income taxes

     (142     (15     7   

Changes in operating assets and liabilities:

      

Accounts receivable, net

     (344     (7,340     (15,549

Inventory

     (5,863     (9,147     (8,489

Prepaid expenses and other assets

     (490     (2,571     1,588   

Accounts payable

     980        2,382        2,495   

Accrued liabilities

     2,194        6,507        2,133   

Accrued litigation expenses

     4,798        83,644        (6,797

Deferred revenue

     3,587        9,657        13,525   
  

 

 

   

 

 

   

 

 

 

Net cash provided by (used in) operating activities

     18,506        3,213        (25,133
  

 

 

   

 

 

   

 

 

 

CASH FLOWS FROM INVESTING ACTIVITIES:

      

Purchases of property and equipment

     (3,295     (4,241     (2,993

Purchases of intangible assets

     (1,436              
  

 

 

   

 

 

   

 

 

 

Net cash used in investing activities

     (4,731     (4,241     (2,993
  

 

 

   

 

 

   

 

 

 

CASH FLOWS FROM FINANCING ACTIVITIES:

      

Proceeds from revolving credit facility

     500        15,000        33,988   

Principal payments on revolving credit facility

     (2,050     (10,000     (20,000

Principal payments on term loan

     (955     (1,023     (631

Proceeds from borrowings under capital lease

            750          

Principal payments on borrowings under capital lease

            (171     (298

Net proceeds from issuance of Series D redeemable convertible preferred stock

                   79,444   

Principal payments on convertible promissory note in relation to settlement of litigation

                   (70,000

Proceeds from exercise of convertible preferred stock warrants

     7        20        813   

Proceeds from exercise of common stock options, net of repurchases of common stock

     894        1,271        2,392   

Payments of costs related to the initial public offering

                   (656
  

 

 

   

 

 

   

 

 

 

Net cash provided by (used in) financing activities

     (1,604     5,847        25,052   
  

 

 

   

 

 

   

 

 

 

Net increase (decrease) in cash and cash equivalents

     12,171        4,819        (3,074

Cash and cash equivalents—beginning of period

     6,877        19,048        23,867   
  

 

 

   

 

 

   

 

 

 

Cash and cash equivalents—end of period

   $ 19,048      $ 23,867      $ 20,793   
  

 

 

   

 

 

   

 

 

 

SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:

      

Cash paid for income taxes, net of refunds

   $ 531      $ 1,723      $ 698   
  

 

 

   

 

 

   

 

 

 

Cash paid for interest

   $ 203      $ 93      $ 1,208   
  

 

 

   

 

 

   

 

 

 

SUPPLEMENTAL DISCLOSURES OF NON-CASH INVESTING AND FINANCING INFORMATION:

      

Reclassification of the convertible preferred stock warrant liability to additional paid-in capital upon the exercise of the convertible preferred stock warrants

   $ 10      $ 52      $ 2,199   
  

 

 

   

 

 

   

 

 

 

Inventory transfers to property and equipment

   $ 1,872      $ 3,400      $ 5,638   
  

 

 

   

 

 

   

 

 

 

Purchases of property and equipment included in accounts payable and accrued liabilities

   $ 167      $ 59      $ 415   
  

 

 

   

 

 

   

 

 

 

Costs related to the initial public offering included in accounts payable and accrued liabilities

   $      $      $ 1,776   
  

 

 

   

 

 

   

 

 

 

Vesting of early exercised stock options

   $ 258      $ 709      $ 654   
  

 

 

   

 

 

   

 

 

 

Accretion of Series D redeemable convertible preferred stock

   $      $      $ 1,982   
  

 

 

   

 

 

   

 

 

 

Issuance of convertible promissory note in relation to settlement of litigation

   $      $      $ 70,000   
  

 

 

   

 

 

   

 

 

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-6


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

1. Organization and Summary of Significant Accounting Policies

 

Organization and Basis of Presentation

 

A10 Networks, Inc. (together with our subsidiaries, the “Company”, “we”, “our” or “us”) was a California corporation that was incorporated in 2004 and we were reincorporated in Delaware in 2014. We are headquartered in San Jose, California and have wholly-owned subsidiaries throughout the world including Asia and Europe. Our solutions enable enterprises, service providers, Web giants and government organizations to accelerate, secure and optimize the performance of their data center applications and networks. We currently offer three software based advanced application networking solutions. These are Application Delivery Controllers, or ADCs, to optimize data center performance; Carrier Grade Network Address Translation, or CGN, to provide address and protocol translation services for service provider networks; and a Distributed Denial of Service Threat Protection System, or TPS, for network-wide security protection. We deliver these solutions both on optimized hardware appliances and as virtual appliances across our Thunder Series and AX Series product families.

 

The accompanying consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America (“GAAP”). The accompanying consolidated financial statements include the accounts of A10 Networks, Inc. and our wholly-owned subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation.

 

Use of Estimates

 

The preparation of the consolidated financial statements in conformity with GAAP requires us to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Those estimates and assumptions affect revenue recognition and deferred revenue, allowance for doubtful accounts, valuation of inventory, contingencies and litigation, and determination of fair value of stock-based compensation. We evaluate our estimates and assumptions on an ongoing basis using historical experience and other factors and adjust those estimates and assumptions when facts and circumstances dictate. Actual results could materially differ from those estimates and assumptions.

 

Unaudited Pro Forma Consolidated Balance Sheet

 

The accompanying unaudited pro forma consolidated balance sheet was prepared as of December 31, 2013. Upon the completion of our initial public offering, all shares of our redeemable convertible preferred stock and convertible preferred stock will convert into shares of common stock based on the shares of redeemable convertible preferred stock and convertible preferred stock outstanding as of December 31, 2013 and accrued liabilities and accumulated deficit will increase by $0.3 million related to a contingent payment to a lender.

 

Foreign Currency

 

The functional currency of our foreign subsidiaries is the U.S. Dollar. Transactions denominated in currencies other than the functional currency are remeasured to the functional currency at the average exchange rate in effect during the period. At the end of each reporting period, monetary assets and liabilities are remeasured to the functional currency using exchange rates in effect at the balance sheet date. Non-monetary assets and liabilities are remeasured at historical exchange rates. Gains and losses related to remeasurement are recorded in interest income and other income (expense), net in the consolidated statements of operations.

 

Vendor Business Concentration

 

Our products are concentrated in an industry which is characterized by significant competition, rapid technological advances, changes in customer requirements and evolving regulatory requirements and industry

 

F-7


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

standards. Our success depends on management’s ability to anticipate and respond quickly and adequately to technological developments in the industry, or changes in customer requirements or industry standards. Any significant delays in the development or introduction of products could have a material adverse effect on our business and operating results.

 

We rely on third parties to manufacture our hardware appliances and we purchase raw materials from third-party vendors. As of December 31, 2013, we outsourced substantially all of our manufacturing services to two independent manufacturers. In addition, we purchase certain strategic component inventory which is consigned to our third-party manufacturers. Other hardware components included in our products are sourced from various suppliers by our manufacturers and are principally industry standard parts and components that are available from multiple vendors.

 

Quality or performance failures of our products or changes in our manufacturers’ or vendors’ financial or business condition could disrupt our ability to supply quality products to our customers, and thereby have a material adverse effect on our business and consolidated financial statements.

 

Concentration of Credit Risk and Significant Customers

 

Financial instruments that potentially subject us to concentrations of credit risk consist of cash, cash equivalents and accounts receivable. Our cash and cash equivalents are invested in high-credit quality financial instruments with banks and financial institutions. Management believes that the financial institutions that hold our cash and cash equivalents are financially sound and, accordingly, are subject to minimal credit risk. Such deposits may be in excess of insured limits provided on such deposits.

 

Our accounts receivable are unsecured and represent amounts due to us based on contractual obligations of our customers. We mitigate credit risk in respect to accounts receivable by performing periodic credit evaluations of our customers to assess the probability of accounts receivable collection based on a number of factors, including past transaction experience with the customer, evaluation of their credit history, limiting the credit extended and review of the invoicing terms of the contract. We generally do not require our customers to provide collateral to support accounts receivable. We have recorded an allowance for doubtful accounts for those receivables that we have determined not to be collectible.

 

Significant customers, including distribution channel partners and direct customers, are those which represent more than 10% of our total revenue or gross accounts receivable balance at each respective balance sheet date. For each significant customer, revenue as a percentage of total revenue and accounts receivable as a percentage of total net accounts receivable are as follows:

 

     Revenue     Accounts Receivable, Net  
     Year Ended
December 31,
    December 31,  

Customers

   2011     2012     2013     2012     2013  

Channel partner A

     23     34     15     *        *   

Channel partner B

     11     *        *        *        *   

Channel partner C

     *        *        10     17     *   

 

*   less than 10%

 

Cash and Cash Equivalents

 

We consider all highly liquid investments with maturities of three months or less when purchased to be cash equivalents. Cash and cash equivalents consist of cash on hand and highly liquid investments in money market funds. As of December 31, 2012 and 2013, cash held in bank accounts was $23.9 million and $20.8 million.

 

F-8


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

Fair Value Measurement

 

Our financial instruments consist of cash and cash equivalents, accounts receivable, accounts payable, accrued liabilities, preferred stock warrants and long-term debt. Cash equivalents are stated at amortized cost, which approximates fair value as of the balance sheet dates, due to the short period of time to maturity. Accounts receivable, accounts payable and accrued expenses are stated at their carrying value, which approximates fair value due to the short time to the expected receipt or payment. The carrying amount of our revolving credit facility and term loan approximates its fair value as the stated interest rate approximates market rates currently available to us. As of December 31, 2012 and 2013, we have not elected the fair value option for any financial assets and liabilities for which such an election would have been permitted.

 

Assets and liabilities recorded at fair value on a recurring basis in the consolidated balance sheets are categorized based upon the level of judgment associated with the inputs used to measure their fair values. Fair value is defined as the exchange price that would be received for an asset or an exit price that would be paid to transfer a liability in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. Valuation techniques used to measure fair value must maximize the use of observable inputs and minimize the use of unobservable inputs. The authoritative guidance on fair value measurements establishes a three-tier fair value hierarchy for disclosure of fair value measurements as follows:

 

Level I —Inputs are unadjusted, quoted prices in active markets for identical assets or liabilities at the measurement date;

 

Level II —Inputs are observable, unadjusted quoted prices in active markets for similar assets or liabilities, unadjusted quoted prices for identical or similar assets or liabilities in markets that are not active, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the related assets or liabilities; and

 

Level III —Unobservable inputs that are significant to the measurement of the fair value of the assets or liabilities that are supported by little or no market data.

 

Our financial instruments consist of Level I assets and Level III liabilities. Level I assets include highly liquid money market funds that are included in cash and cash equivalents. Level III liabilities that are measured at fair value on a recurring basis consist solely of our convertible preferred stock warrant liability. The fair values of the outstanding convertible preferred stock warrants are measured using the Black-Scholes option-pricing model. Inputs used to determine estimated fair value include the estimated fair value of the underlying stock at the valuation measurement date, the remaining contractual term of the warrants, risk-free interest rates, expected dividends and the expected volatility of the underlying stock. Generally, increases (decreases) in the fair value of the underlying stock and estimated term would result in a directionally similar impact to the fair value measurement.

 

Accounts Receivable and Allowance for Doubtful Accounts

 

Accounts receivable are recorded at invoiced amounts, net of allowances for doubtful accounts if applicable, and do not bear interest.

 

We evaluate the collectability of our accounts receivable based on known collection risks and historical experience. In circumstances where we are aware of a specific customer’s inability to meet its financial obligations to us (e.g., bankruptcy filings or substantial downgrading of credit ratings), we record a specific reserve for bad debts against amounts due to reduce the net recognized receivable to the amount we reasonably believe will be collected. For all other customers, we record reserves for bad debts based on the length of time the receivables are past due and our historical experience of collections and write-offs. If circumstances change, such as higher-than-expected defaults or an unexpected material adverse change in a major customer’s ability to meet its financial obligations, our estimate of the recoverability of the amounts due could be reduced by a material amount.

 

F-9


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

Inventory

 

Inventory consists primarily of finished goods and related component parts and is stated at the lower of standard cost, (which approximates actual cost on a first-in, first-out basis), or market value (estimated net realizable value). We evaluate inventory for excess and obsolete products, based on management’s assessment of future demand and market conditions. Inventory write-downs, once established, are not reversed as they establish a new cost basis for the inventory. Inventory write downs are included as a component of cost of revenue in the accompanying consolidated statements of operations. We incurred inventory write downs of $2.4 million, $3.3 million and $2.6 million for the years ended December 31, 2011, 2012 and 2013.

 

Property and Equipment, Net

 

Property and equipment, including leasehold improvements, are stated at cost, less accumulated depreciation and amortization. Depreciation is computed using the straight-line method over the estimated useful lives of the related assets. Depreciation on property and equipment, excluding leasehold improvements, ranges from one to three years.

 

Leasehold improvements are amortized on a straight-line basis over the shorter of the estimated useful lives of the assets or the remaining lease term. Amortization on leasehold improvements ranges from two to eight years.

 

Intangible Assets, Net

 

Intangible assets consist of identifiable intangible assets that we have acquired, including customer relationships and patents. Intangible assets are recorded at fair value, net of accumulated amortization. Intangible assets are amortized on a straight-line basis over their estimated useful lives. Amortization expense is included as a component of cost of revenue and sales and marketing expenses in the accompanying consolidated statements of operations. In the period after our intangible assets become fully amortized, we remove the fully amortized balances from the gross asset and accumulated amortization amounts.

 

Impairment of Long-Lived Assets

 

The carrying amounts of our long-lived assets, including property and equipment and intangible assets subject to depreciation and amortization, are periodically reviewed for impairment whenever events or changes in circumstances indicate that the carrying value of these assets may not be recoverable or that the useful life is shorter than we had originally estimated. Recoverability of these assets is measured by comparison of the carrying amount of each asset to the future undiscounted cash flows the asset is expected to generate over their remaining lives. If the asset is considered to be impaired, the amount of any impairment is measured as the difference between the carrying value and the fair value of the impaired asset. If the useful life is shorter than originally estimated, we amortize the remaining carrying value over the new shorter useful life. No impairment of any long-lived assets was identified for any of the periods presented.

 

Convertible Preferred Stock Warrant Liability

 

We account for freestanding warrants to purchase shares of convertible preferred stock that are contingently redeemable as liabilities in the consolidated balance sheets at their estimated fair value. At the end of each reporting period, changes in the estimated fair value of the warrants to purchase shares of convertible preferred stock are recorded in interest income and other income (expense), net in the consolidated statements of operations. We will continue to adjust the convertible preferred stock warrant liability to the estimated fair value of the warrants until the earlier of the exercise or expiration of the warrants, or the completion of a liquidation event, including the completion of an initial public offering, at which time the convertible preferred stock

 

F-10


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

issuable upon exercise of the warrants will become common stock, and the related liability will be reclassified to additional paid-in capital in stockholders’ deficit. As of December 31, 2013, we do not have any unexercised convertible preferred stock warrants.

 

Revenue Recognition

 

We derive revenue from two sources: (i) products revenue, which includes hardware and perpetual software license revenue; and (ii) services revenue, which include post contract support (“PCS”), professional services, and training. Substantially all of our revenue is from sales of our products and services through distribution channel partners, such as resellers and distributors. Revenue is recognized, net of taxes, when all of the following criteria are met: persuasive evidence of an arrangement exists, delivery or performance has occurred, the sales price is fixed or determinable, and collection is reasonably assured.

 

We define each of the four criteria above as follows:

 

   

Persuasive evidence of an arrangement exists.  Evidence of an arrangement consists of a purchase order issued pursuant to the terms and conditions of a master sales agreement.

 

   

Delivery or performance has occurred.  We use shipping documents or written evidence of customer acceptance, when applicable, to verify delivery or performance. We recognize product revenue upon transfer of title and risk of loss, which primarily is upon shipment to customers. We do not have significant obligations for future performance, such as customer acceptance provisions, rights of return, or pricing credits, associated with our sales.

 

   

The sales price is fixed or determinable.  We assess whether the sales price is fixed or determinable based on payment terms and whether the sales price is subject to refund or adjustment. Standard payment terms to customers range from 30 to 90 days.

 

   

Collection is reasonably assured.  We assess probability of collection on a customer-by-customer basis. Our customers are subjected to a credit review process that evaluates their financial condition and ability to pay for products and services.

 

PCS revenue includes arrangements for software support and technical support for our products. PCS is offered under renewable, fee-based contracts, which include technical support, hardware repair and replacement parts, bug fixes, patches, and unspecified upgrades on a when-and-if-available basis. Revenue for PCS services is recognized on a straight-line basis over the service contract term, which is typically one to five years. Unearned PCS revenue is included in deferred revenue.

 

Professional service revenue primarily consists of the fees we earn related to installation and consulting services. We recognize revenue from professional services upon delivery or completion of performance. Professional service arrangements are typically short term in nature and are largely completed within 30 to 90 days from the start of service.

 

Multiple-Element Arrangements

 

Our hardware with the embedded software solutions (which is a proprietary operating system that together with the hardware delivers the functionality desired by our customers), is considered a separate unit of accounting from PCS because they have value to the customer on a standalone basis and our sales arrangements do not include a right of return for delivered products. For multiple-element arrangements, we allocate revenue to each unit of accounting based on an estimated selling price at the inception of the arrangement. The total

 

F-11


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

arrangement consideration is allocated to each separate unit of accounting using the relative selling price method. We limit the amount of revenue recognized for delivered elements to an amount that is not contingent upon future delivery of additional products or service.

 

When applying the relative selling price method, we determine the selling price for each element using (i) vendor-specific objective evidence, or VSOE, of selling price, if available; (ii) third-party evidence, or TPE, of selling price, if VSOE is not available; and (iii) best estimate of selling price, or BESP, if neither VSOE nor TPE is available.

 

   

VSOE. We determine VSOE based on our historical pricing and discounting practices for the specific products and services when sold separately. In determining VSOE, we require that a substantial majority of the stand-alone selling prices fall within a reasonably narrow pricing range.

 

   

TPE. When VSOE cannot be established for deliverables in multiple-element arrangements, we apply judgment with respect to whether we can establish a selling price based on TPE. TPE is determined based on competitor prices for interchangeable products or services when sold separately to similarly situated customers. However, as our products contain a significant element of proprietary technology and our solutions offer substantially different features and functionality, the comparable pricing of products with similar functionality typically cannot be obtained. Additionally, as we are unable to reliably determine what competitors products’ selling prices are on a stand-alone basis, we are not typically able to determine TPE.

 

   

BESP. When we are unable to establish selling price using VSOE or TPE, we use BESP in our allocation of arrangement consideration. The objective of BESP is to determine the price at which we would transact a sale if the product or service was sold regularly on a stand-alone basis. As we have not been able to establish VSOE or TPE for our products and some of our services, we determine BESP for the purposes of allocating the arrangement, primarily based on historical transaction pricing. Historical transactions are segregated based on our pricing model and go-to-market strategy, which include factors such as the geographies in which our products and services were sold (domestic or international), offering type (product series, and level of support for PCS) and type of sales channel. The determination of BESP is made through consultation with and approval by management.

 

We may occasionally accept returns to address customer satisfaction issues or solution-fit issues even though there is no contractual provision for such returns. We estimate returns for sales to customers based on historical returns rates applied against current-period gross revenues. Specific customer returns and allowances are considered within this estimate. Management also analyzes changes in customer demand and acceptance of products when evaluating the adequacy of returns and sales allowances.

 

Deferred Revenue

 

Deferred product revenue relates to arrangements where not all revenue recognition criteria have been met. Deferred services revenue primarily represents PCS contracts billed in advance and revenue is recognized ratably over the service contract term, typically one to five years. The current portion of deferred revenue represents the amounts that are expected to be recognized as revenue within one year of the consolidated balance sheet date.

 

Shipping and Handling

 

Shipping charges billed to customers are included in revenue and the related shipping costs are included in cost of revenue in the accompanying consolidated statements of operations.

 

F-12


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

Research and Development Costs

 

Software and hardware development costs incurred in the research and development of new products and enhancements to existing products are charged to expense as incurred. The period between achievement of technological feasibility, which we define as the establishment of a working model, and the general availability of such software to customers has been short, resulting in software development costs qualifying for capitalization being insignificant. Accordingly, we did not capitalize any development costs for the years ended December 31, 2011, 2012 and 2013.

 

Deferred Offering Costs

 

Deferred offering costs, consisting of legal, accounting and filing fees relating to our initial public offering, are capitalized. The deferred offering costs will be offset against initial public offering proceeds upon the completion of the offering. In the event the offering is terminated, deferred offering costs will be expensed. As of December 31, 2012 and 2013, we had capitalized nil and $2.4 million of deferred offering costs, which is classified as other assets on our consolidated balance sheets.

 

Segment Information

 

Operating segments are components of an enterprise for which separate financial information is available and is evaluated regularly by our chief operating decision maker in deciding how to allocate resources and assessing performance. Our chief operating decision maker is our Chief Executive Officer.

 

Our Chief Executive Officer reviews financial information presented on a consolidated basis, for purposes of allocating resources and evaluating financial performance. We have one business activity and there are no segment managers accountable for operations, operating results beyond revenues or gross profit, or plans for levels or components below the consolidated unit level. Accordingly, we have a single reporting segment.

 

Stock-Based Compensation

 

Compensation expense related to stock option grants made to employees is calculated based on the fair value of all of our stock-based awards on the date of grant, net of estimated forfeitures. We determine the grant date fair value of our awards using the Black-Scholes option-pricing model. The related stock-based compensation expense is recognized on a straight-line basis, over the period in which an employee is required to provide service in exchange for the stock-based award, which is generally four years.

 

For stock-based awards issued to non-employees, including consultants, we record expense related to stock options based on the fair value of the options calculated using the Black-Scholes option-pricing model over the service performance period.

 

Warranty Costs

 

Our appliance hardware and software generally carry a warranty period of 90 days. Estimates of future warranty costs are based on actual historical returns experience and the application of those historical return rates to our in-warranty installed base. Warranty costs to repair or replace items sold to customers have been insignificant for the years ended December 31, 2011, 2012 and 2013.

 

Litigation and Contingencies

 

Litigation is comprised of legal expenses incurred in defending ourselves against litigation matters and our change in litigation reserve. Legal expenses are recorded in the consolidated statements of operations as incurred

 

F-13


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

when the legal services are provided. The current portion of accrued litigation expenses represents the legal expenses that are expected to be paid within one year of the consolidated balance sheet date. Litigation reserve represents our estimate of possible losses on pending litigations. Some of these proceedings involve claims that are subject to substantial uncertainties and unascertainable damages. Accordingly, except as disclosed, we have not established reserves or ranges of possible loss related to these proceedings, as at this time in the proceedings, if any, the matters do not relate to a probable loss and/or amounts are not reasonably estimated.

 

As discussed in Note 6, in May 2013, we reached an agreement with Brocade Communications Systems, Inc. (“Brocade”) to settle the lawsuit that Brocade filed against the Company, our founder and other individuals in the United States District Court for the Northern District of California in August 2010, and to settle the lawsuit that the Company filed against Brocade in September 2011, along with all related claims. The total amount of the settlement was $75.0 million, which we recognized in litigation expense in our consolidated statement of operations for the year ended December 31, 2012 with the corresponding accrual being recognized in the line item “accrued litigation expenses, current portion” in our accompanying balance sheet as of December 31, 2012.

 

In June 2013, we reached an agreement with Allegro Software Development, Inc. (“Allegro”) to settle the civil action that Allegro filed against the Company in the United States District Court for the District of Massachusetts in September 2012. The total amount of the settlement was $0.9 million (see Note 6).

 

Comprehensive Income (Loss)

 

We have had no comprehensive income (loss) other than net income (loss). Thus, comprehensive income (loss) is the same as the net income (loss) for all periods presented.

 

401(k) Profit Sharing Plan

 

We have a qualified contributory savings plan under Section 401(k) of the Internal Revenue Code covering substantially all of our United States employees. Each participant in the plan may elect to contribute up to $17,000 or $17,500 of his or her annual compensation to the plan for the calendar years 2012 or 2013. Individuals who were 50 or older may contribute up to $22,500 of their annual income. We do not make matching or discretionary contributions to the plan.

 

Income Taxes

 

We account for income taxes under an asset and liability approach for deferred income taxes, which requires recognition of deferred income tax assets and liabilities for the expected future tax consequences of events that have been recognized in our consolidated financial statements, but have not been reflected in our taxable income. Estimates and judgments occur in the calculation of certain tax liabilities and in the determination of the recoverability of certain deferred income tax assets, which arise from temporary differences and carryforwards. Deferred income tax assets and liabilities are measured using the currently enacted tax rates that apply to taxable income in effect for the years in which those tax assets are expected to be realized or settled. We regularly assess the likelihood that our deferred income tax assets will be realized based on the realization guidance available. To the extent that we believe any amounts are not more likely than not to be realized, we record a valuation allowance to reduce the deferred income tax assets. We regularly assess the need for the valuation allowance on our deferred tax assets, and to the extent that we determine that an adjustment is needed, such adjustment will be recorded in the period that the determination is made.

 

We regularly review our tax positions and benefits to be realized. We recognize tax liabilities based upon our estimate of whether, and the extent to which, additional taxes will be due when such estimates are more-likely-than-not to be sustained. An uncertain income tax position will not be recognized if it has less than a 50%

 

F-14


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

likelihood of being sustained. We recognize interest and penalties related to income tax matters as income tax expense. For the years ended December 31, 2011, 2012 and 2013, we did not incur any interest or penalties associated with unrecognized tax benefits.

 

Net Income Per Share Available (Loss Attributable) to Common Stockholders

 

Basic and diluted net income per share available (loss attributable) to common stockholders is presented in conformity with the two-class method required for participating securities. Holders of Series A, Series B, Series C and Series D preferred stock are entitled to receive noncumulative dividends at the annual rates of $0.045, $0.0765, $0.11169 and $60 per share per annum payable prior and in preference to any dividends on shares of our common stock. In the event a dividend is paid on our common stock, our preferred stockholders are entitled to a share of that dividend in proportion to the holders of common shares on an as-if converted basis. Series A, Series B, Series C and Series D preferred stock are considered participating securities. In accordance with the two-class method, earnings allocated to participating securities, which include contractual participation rights in undistributed earnings, have been excluded from the computation of basic and diluted net income per share available (loss attributable) to common stockholders. Holders of participating securities do not have a contractual obligation to share in our losses. As such, for the periods we incur net losses, there is no impact on our calculated net loss per share attributable to common stockholders in applying the two-class method. Accretion of our redeemable convertible preferred stock dividend is excluded from income attributable to common stockholders.

 

Under the two-class method, net income available (loss attributable) to common stockholders is determined by allocating undistributed earnings, calculated as net income per share available (loss attributable) to common stockholders less current period Series A, Series B, Series C and Series D preferred stock non-cumulative dividends, among our common stock and participating securities. In computing diluted net income per share available (loss attributable) to common stockholders, undistributed earnings are re-allocated to reflect the potential impact of dilutive securities. Basic net income per share available (loss attributable) to common stockholders is computed by dividing the net income per share available (loss attributable) to common stockholders by the weighted-average number of common shares outstanding during the period. Diluted net income per share available (loss attributable) to common stockholders is computed by dividing the net income per share available (loss attributable) to common stockholders by the weighted-average number of common shares outstanding, including potential dilutive common shares assuming the dilutive effect of outstanding stock options using the treasury stock method. For purposes of this calculation, participating securities, stock options to purchase common stock and warrants to purchase convertible preferred stock are considered to be common stock equivalents and are excluded from the calculation of diluted net income per share available (loss attributable) to common stockholders if their effect is antidilutive.

 

Unaudited Pro Forma Net Income Per Share Available (Loss Attributable) to Common Stockholders

 

In contemplation of our initial public offering, we have presented unaudited pro forma basic and diluted net income per share available (loss attributable) to common stockholders, which has been calculated assuming (i) the conversion of all series of our redeemable convertible preferred stock and convertible preferred stock (using the as-if converted method) into shares of common stock as though the conversion had occurred as of the beginning of the period or the original date of issuance, if later; and (ii) the conversion of our convertible preferred stock warrants into common stock warrants as though the conversions had occurred at the beginning of the period. As a result, we have reversed the accretion on our redeemable convertible preferred stock and removed the gains and losses from the remeasurement of the convertible preferred stock warrant liability to fair value from the numerator in the pro forma basic and diluted net income per share available (loss attributable) to common stockholders calculation.

 

F-15


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

Unaudited Supplemental Pro Forma Net Income Per Share Available (Loss Attributable) to Common Stockholders

 

In contemplation of our initial public offering, we have presented unaudited supplemental pro forma basic and diluted net income per share available (loss attributable) to common stockholders, which has been calculated assuming (i) the conversion of all series of our redeemable convertible preferred stock and convertible preferred stock (using the as-if converted method) into shares of common stock as though the conversion had occurred as of the beginning of the period or the original date of issuance, if later; (ii) the conversion of our convertible preferred stock warrants into common stock warrants as though the conversion had occurred at the beginning of the period; and (iii) the repayment in full of outstanding borrowings under the Company’s credit facility using proceeds from the Company’s initial public offering as if this transaction had occurred as of December 31, 2013.

 

Recently Issued and Adopted Accounting Pronouncements

 

In July 2012, the FASB issued ASU No. 2012-02, Testing Indefinite-Lived Intangible Assets for Impairment (Topic 350)—Testing Indefinite-Lived Intangible Assets for Impairment . The objective of ASU No. 2012-02 is to simplify how entities test indefinite-lived intangible assets for impairment. ASU No. 2012-02 permits an entity to first assess qualitative factors to determine whether it is more likely than not that an indefinite-lived intangible asset is impaired. The more-likely-than-not threshold is defined as having a likelihood of more than 50%. If an indefinite-lived asset has qualitative factors that indicate impairment, the entity would then be required to perform the quantitative impairment test. An entity can choose to perform the qualitative assessment on none, some, or all of its indefinite-lived intangible assets. Moreover, an entity can bypass the qualitative assessment and perform the quantitative impairment test for any indefinite-lived intangible asset in any period. The revised standard is effective for annual and interim indefinite-lived impairment tests performed for fiscal years beginning after September 15, 2012, with early adoption permitted. We adopted ASU 2012-02 on January 1, 2013, and the adoption did not have a material impact on our consolidated financial statements as we do not have a material balance of indefinite lived intangible assets.

 

Recently Issued Accounting Pronouncements

 

In July 2013, the FASB issued ASU No. 2013-11,  Income Taxes (Topic 740), Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists . ASU 2013-11 provides guidance on the financial statement presentation of an unrecognized tax benefit when a net operating loss carryforward, similar tax loss, or tax credit carryforward exists. This new standard requires the netting of unrecognized tax benefits (“UTBs”) against a deferred tax asset for a loss or other carryforward that would apply in settlement of the uncertain tax positions. UTBs will be netted against all available same-jurisdiction loss or other tax carryforwards that would be utilized, rather than only against carryforwards that are created by the UTBs. This new guidance is effective for us beginning January 1, 2014, with early adoption permitted. Since ASU 2013-11 only impacts financial statement disclosure requirements for unrecognized tax benefits, we do not expect its adoption to have an impact on our consolidated financial statements.

 

F-16


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

2. Fair Value Measurements

 

We measure and report our cash equivalents and convertible preferred stock warrant liability at fair value. The following table sets forth the fair value of our financial assets and liabilities measured on a recurring basis by level within the fair value hierarchy:

 

     December 31, 2012  
     Level I      Level II      Level III      Total  
     (In thousands)  

Financial Assets

  

Money market funds

   $ 8,022       $        —       $       $ 8,022   
  

 

 

    

 

 

    

 

 

    

 

 

 

Financial Liability

           

Convertible preferred stock warrant liability

   $       $       $   2,197       $ 2,197   
  

 

 

    

 

 

    

 

 

    

 

 

 
     December 31, 2013  
     Level I      Level II      Level III      Total  
     (In thousands)  

Financial Assets

  

Money market funds

   $ 14,029       $       $       $ 14,029   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

We did not have realized gains or losses for the years ended December 31, 2011, 2012 or 2013 related to our financial assets.

 

The following table sets forth a summary of the changes in the fair value of our Level III financial liabilities:

 

     Year Ended
December 31,
 
     2011     2012     2013  
     (In thousands)  

Fair value, beginning balance

   $ 942      $ 1,445      $ 2,197   

Fair value of convertible preferred stock warrants at exercise

     (10     (52     (2,199

Change in fair value of Level III liabilities

     513        804        2   
  

 

 

   

 

 

   

 

 

 

Fair value, ending balance

   $  1,445      $  2,197      $   
  

 

 

   

 

 

   

 

 

 

 

3. Balance Sheet Components

 

Allowance for Doubtful Accounts and Sales Return Reserve

 

The allowance for doubtful accounts consists of the following activity:

 

     Year Ended
December 31,
 
     2011     2012     2013  
     (In thousands)  

Allowance for doubtful accounts, beginning balance

   $ 299      $ 793      $ 1,494   

Charged to expenses

     605        712        1,068   

Write-offs

     (111     (11     (726
  

 

 

   

 

 

   

 

 

 

Allowance for doubtful accounts, ending balance

   $      793      $   1,494      $   1,836   
  

 

 

   

 

 

   

 

 

 

 

F-17


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

The sales return reserve consists of the following activity:

 

     Year Ended
December 31,
 
     2011     2012     2013  
     (In thousands)  

Sales return reserve, beginning balance

   $ 219      $ 296      $ 500   

Charged to revenue

     452        618        720   

Utilization of sales return reserve

     (375     (414     (318
  

 

 

   

 

 

   

 

 

 

Sales return reserve, ending balance

   $      296      $      500      $      902   
  

 

 

   

 

 

   

 

 

 

 

Inventory

 

Inventory consists of the following:

 

     December 31,  
     2012      2013  
     (In thousands)  

Raw materials

   $ 6,380       $ 10,625   

Finished goods

     7,935         6,541   
  

 

 

    

 

 

 

Total inventory

   $ 14,315       $ 17,166   
  

 

 

    

 

 

 

 

Prepaid Expenses and Other Current Assets

 

Prepaid expenses and other current assets consist of the following:

 

     December 31,  
     2012      2013  
     (In thousands)  

Taxes receivable

   $ 2,078       $ 418   

Deferred tax assets, current portion

     672         279   

Other prepaid expenses and current assets

     2,116         2,359   
  

 

 

    

 

 

 

Total prepaid expenses and other current assets

   $   4,866       $ 3,056   
  

 

 

    

 

 

 

 

Property and Equipment, Net

 

Property and equipment, net consists of the following:

 

     December 31,  
     2012     2013  
     (In thousands)  

Equipment

   $ 12,911      $ 21,188   

Software

     2,157        2,479   

Leasehold improvements

     1,266        1,325   

Furniture and fixtures

     653        777   

Construction in progress

     92        123   
  

 

 

   

 

 

 

Property and equipment, gross

     17,079        25,892   

Less: accumulated depreciation and amortization

     (9,310     (16,091
  

 

 

   

 

 

 

Total property and equipment, net

   $    7,769      $ 9,801   
  

 

 

   

 

 

 

 

F-18


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

Depreciation and amortization on our property and equipment for the years ended December 31, 2011, 2012 and 2013 was $2.8 million, $4.7 million and $6.9 million.

 

Other Assets

 

Other assets consist of the following:

 

     December 31,  
       2012        2013  
     (In thousands)  

Security deposits

   $ 672       $ 730   

Debt issuance costs

             928   

Deferred offering costs

             2,432   

Other

     160         123   
  

 

 

    

 

 

 

Total other assets

   $ 832       $ 4,213   
  

 

 

    

 

 

 

 

Accrued Liabilities

 

Accrued liabilities consist of the following:

 

     December 31,  
     2012      2013  
     (In thousands)  

Accrued payroll expenses

   $ 6,213       $ 9,015   

Accrued tax liabilities

     2,035         2,156   

Other

     3,762         4,343   
  

 

 

    

 

 

 

Total accrued liabilities

   $ 12,010       $ 15,514   
  

 

 

    

 

 

 

 

Deferred Revenue

 

Deferred revenue consists of the following:

 

     December 31,  
     2012     2013  
     (In thousands)  

Deferred revenue:

    

Products

   $ 2,143      $ 3,170   

Services

     25,564        38,062   
  

 

 

   

 

 

 

Total deferred revenue

     27,707        41,232   

Less: current portion of deferred revenue

     (19,374     (28,448
  

 

 

   

 

 

 

Noncurrent portion of deferred revenue

   $    8,333      $  12,784   
  

 

 

   

 

 

 

 

F-19


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

4. Intangible Assets

 

The gross carrying amount and accumulated amortization of our intangible assets are as follows:

 

     Amortization
Period
     Gross
Value
     Accumulated
Amortization
    Net
Carrying
Value
 
            (In thousands)  

December 31, 2012

          

Customer relationships

     45 months       $ 1,746       $ (1,746   $   

Patents

     130 months         1,436         (239     1,197   
     

 

 

    

 

 

   

 

 

 
      $        3,182       $       (1,985   $ 1,197   
     

 

 

    

 

 

   

 

 

 

December 31, 2013

          

Patents

     130 months       $ 1,436       $ (375   $         1,061   
     

 

 

    

 

 

   

 

 

 

 

We recognized intangible asset amortization in the consolidated statements of operations as follows:

 

     Year Ended
December 31,
 
         2011              2012             2013     
     (In thousands)  

Cost of revenue

   $ 110       $ 129       $ 136   

Sales and marketing

     466         465           
  

 

 

    

 

 

    

 

 

 

Total intangible asset amortization

   $     576       $     594       $     136   
  

 

 

    

 

 

    

 

 

 

 

As of December 31, 2013, estimated amortization related to our identifiable acquisition-related intangible assets in future periods is as follows:

 

Years Ending December 31:

   Amount  
     (In thousands)  

2014

   $             133   

2015

     133   

2016

     133   

2017

     133   

2018

     133   

Thereafter

     396   
  

 

 

 

Total

   $ 1,061   
  

 

 

 

 

F-20


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

5. Debt

 

Our debt consists of the following:

 

     December 31,  
     2012     2013  
     (In thousands)  

Revolving credit facility

   $           5,000      $         20,000   

Term loan

     631          
  

 

 

   

 

 

 

Total debt

     5,631        20,000   

Less: current portion of revolving credit facility

     (5,000       

Less: current portion of term loan

     (631       
  

 

 

   

 

 

 

Total long-term debt

   $      $ 20,000   
  

 

 

   

 

 

 

 

Current Credit Agreement

 

In September 2013, we entered into a credit agreement with Royal Bank of Canada, JPMorgan Chase Bank, N.A. and Bank of America, N.A. as lenders. The credit agreement provides a three year $35.0 million revolving credit facility, which includes a maximum $10.0 million letter of credit facility.

 

The revolving credit facility bears interest at a rate per annum based on either, at our election, (i) an alternate base rate plus a margin ranging from 1.75% to 2.50% depending on our total leverage ratio, or (ii) the London interbank offered rate, or LIBOR, based on one, two, three or six month interest periods plus a margin ranging from 2.75% to 3.50% depending on our total leverage ratio. The alternate base rate is equal to the greatest of (i) the Royal Bank of Canada’s prime rate, (ii) the federal funds rate plus a margin equal to 0.50% and (iii) the Eurodollar rate for a one month interest period plus a margin equal to 1.00%. Our interest rate as of December 31, 2013 was 3.85% per annum. Interest expense is paid quarterly. We are also required to pay quarterly facility fees of 0.45% per annum on the average daily unused portion of the revolving credit facility. We may prepay the loans or terminate or reduce the commitments at any time, without premium or penalty. The revolving credit facility matures on September 30, 2016.

 

We drew down $25.0 million on the revolving credit facility on September 30, 2013, and repaid $5.0 million on December 31, 2013. In addition, we incurred $1.0 million of debt issuance costs that were directly attributable to the issuance of this revolving credit facility. These costs are being amortized to interest expense in our accompanying consolidated statements of operations over the term of the loan. As of December 31, 2013, the unamortized debt issuance costs of $0.9 million were included within other assets in our consolidated balance sheets.

 

Our obligations under the credit agreement are secured by a security interest on substantially all of our assets, including our intellectual property. The credit agreement contains customary non-financial covenants, and also requires us to comply with financial covenants. One financial covenant requires us to maintain a total leverage ratio, which is defined as total consolidated debt to trailing Adjusted EBITDA (defined as earnings before interest expense, tax expense, depreciation, amortization and stock-based compensation, adjusted for certain other non-cash or non-recurring income or expenses such as specified litigation settlement payments and litigation expenses). In addition, we must maintain a minimum amount of liquidity based on our unrestricted cash and availability under the revolving credit facility. The covenant requires us to maintain a minimum liquidity of $25.0 million provided that at least $10 million of liquidity comprises of unrestricted cash. The credit agreement includes customary events of default which, if triggered, could result in the acceleration of our obligations under the revolving credit facility, the termination of any obligation by the lenders to extend further credit and a process for the lenders to obtain title to collateral granted to them under the credit agreement; however, we also have the ability, in certain instances, to cure non-compliance with the financial covenants through qualified

 

F-21


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

equity contributions by certain holders of our equity. As of December 31, 2013, we were not in compliance with the total leverage ratio covenant under the credit agreement, which resulted in us receiving a waiver from our lenders, however we will not be able to borrow additional funds under the credit facility until we are back in compliance with this covenant.

 

Our scheduled principal payments on our outstanding borrowings as of December 31, 2013 are payable on September 30, 2016.

 

Expired Credit Agreements

 

As discussed in Note 6, Settlement of Brocade Litigation, in July 2013 we entered into an unsecured convertible promissory note with Brocade for $70.0 million as part of the terms of our legal settlement. The interest rate on the convertible promissory note was fixed at 8.0% and matured on December 28, 2013. The convertible promissory note was repaid in September 2013. We recognized interest expense of $1.1 million for the year ended December 31, 2013 on the convertible promissory note in the accompanying consolidated statements of operations.

 

In January 2010 (and as amended in July 2010 and May 2011), we entered into a loan and security agreement with Silicon Valley Bank (“SVB”) with maximum borrowing capacity of up to $5.0 million. Our interest rate as of December 31, 2012 was 4.5% per annum. We were also required to pay a collateral handling fee of 0.30% per month on the financed balance. The revolving credit facility was secured by substantially all of the assets of the Company, including intellectual property. The revolving credit facility was to mature on January 22, 2012. In various times, we extended the maturity date of this revolving credit facility to June 30, 2013. The revolving credit facility was repaid on maturity.

 

In conjunction with the amendment to the loan and security agreement in July 2010, we also entered into a $3.0 million term loan. The interest rate on the term loan was fixed at 6.85% and interest payments were due monthly. The term loan was repayable in 36 monthly installments of principal and interest. The term loan was secured by substantially all of the assets of the Company, including intellectual property. The term loan matured on July 22, 2013.

 

6. Commitments and Contingencies

 

Legal Proceedings

 

From time to time, we may be party or subject to various other legal proceedings and claims, either asserted or unasserted, which arise in the ordinary course of business, including proceedings and claims that relate to intellectual property matters. Some of these proceedings involve claims that are subject to substantial uncertainties and unascertainable damages. Accordingly, except as disclosed, we have not established reserves or ranges of possible loss related to these proceedings, as at this time in the proceedings, if any, the matters do not relate to a probable loss and/or amounts are not reasonably estimated. Although we believe that we have a strong defense for the litigation proceedings described below, there are many uncertainties associated with any litigation and these actions or other third-party claims against us may cause us to incur costly litigation and/or substantial settlement charges that could have a material adverse effect on our results of operations, financial position, or cash flows. In addition, the resolution of any future intellectual property litigation may require us to make royalty payments and/or settlement payments, which could adversely affect gross margin and operating expenses in future periods.

 

Settled Litigation

 

Brocade, et al. v. A10, et al; A10 v. Brocade

 

In August 2010, Brocade Communications Systems, Inc., and its wholly-owned subsidiary Foundry Networks, LLC (collectively, “Brocade”), filed a complaint against the Company in the United States District

 

F-22


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

Court for the Northern District of California, ultimately alleging that the Company’s AX series products infringe thirteen Brocade patents, as well as a number of Brocade copyrights. Brocade also asserted claims of trade secret misappropriation, breach of contract, intentional interference with prospective economic advantage, intentional interference with contract, and unfair competition against our CEO, several other Company employees, and one non-employee.

 

Separately, and on September 9, 2011, the Company filed a complaint in the Central District of California, alleging (among other things) that Brocade infringed two patents.

 

Settlement of Brocade Litigation

 

In May 2013, Brocade and the Company reached a comprehensive settlement agreement. The settlement agreement resolved all outstanding disputes between and among the parties, included general releases, and included patent peace for extended and specified periods. Each party was to bear its own fees and costs. The Company, for its part, agreed to satisfy a $75.0 million stipulated judgment.

 

The settlement fee of $75.0 million was recognized by the Company in litigation expense in the accompanying consolidated statement of operations for the year ended December 31, 2012.

 

Pursuant to the terms of the Brocade settlement agreement, the Company paid $5.0 million in cash to Brocade on June 25, 2013. Also, on July 22, 2013, the Company entered into a Note and Warrant Purchase Agreement with Brocade and issued a $70.0 million unsecured convertible promissory note payable to Brocade. The note bore interest at a rate of 8% per annum and had a maturity date six months from the issuance date. Brocade had the option within 30 days after the issuance of the convertible promissory note to convert up to 50% of the outstanding principal amount of the convertible promissory note into the Company’s Series D redeemable convertible preferred stock at the lowest price any investor should pay upon purchasing any share of the Company’s Series D redeemable convertible preferred stock. That option expired unexercised in August 2013. The Company also issued certain warrants to Brocade which by their terms were to become exercisable incrementally only if the convertible promissory note remained outstanding for 90 days or more after issuance. On September 30, 2013, the Company repaid the convertible promissory note in full including $1.1 million of accrued interest, upon which payment of the warrants expired (never having become exercisable). On October 9, 2013, the Court issued an order regarding the satisfaction of judgment. This final order also dissolved two injunctions that had been issued in January and February 2013.

 

As part of the settlement agreement, the Company granted Brocade a fully paid up, non-exclusive, irrevocable license to use its patented intellectual property through May 2025. The Company also agreed not to use certain old versions of its source code, except to service versions of product already sold to its customers before February 2013. In addition, Brocade and the Company provided certain covenants to not sue each other for various periods of time and certain general releases.

 

Allegro v. A10

 

In September 2012, Allegro Software Development, Inc. filed an action against the Company in the United States District Court for the District of Massachusetts. The civil action alleged actual damages of $2.1 million as a result of breach of contract, misappropriation of confidential information and trade secrets, misappropriation of trade secrets, and unfair and deceptive trade practices. The Company recorded a litigation reserve of $0.3 million in 2011 as the estimated possible loss in regards to this matter. In June 2013, Allegro and the Company entered into a settlement agreement whereby the Company paid $0.9 million in cash to resolve all claims relating to the licensing and use of Allegro’s software. As the result of the settlement agreement, the Company recognized an additional $0.6 million in litigation expense in 2012.

 

F-23


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

Yajie v. A10

 

In February 2011, Yajie, Inc. filed an action against the Company in the Beijing First Intermediate People’s Court in China. The civil action alleged actual damages of $0.3 million as a result of breach of contract. The Company recorded a litigation reserve of $0.3 million in 2012. In October 23, 2013, the Company entered into a settlement agreement with Yajie pursuant to which all disputes between the parties will be resolved and dismissed. As part of the settlement, Yajie agreed to promptly return certain equipment to the Company, and the Company agreed to promptly pay $0.3 million in cash. In October 2013, the Company paid Yajie $0.3 million.

 

Pending Litigation

 

Radware v. A10

 

In May 2013, Radware, Ltd., and Radware, Inc. (collectively, “Radware”) filed suit against the Company in the United States District Court for the Northern District of California, asserting that the Company’s AX Series products infringe three of Radware’s U.S. patents. The Company responded to the complaint on June 24, 2013. No trial date has been set for this matter and the parties are in the process of conducting discovery.

 

Parallel v. A10

 

In November 2013, Parallel Networks, LLC (“Parallel Networks”), which we believe is a non-practicing patent holding company, filed a lawsuit against us in the United States District Court for the District of Delaware. In the lawsuit, Parallel Networks alleges that our AX and Thunder series products infringe two of their U.S. patents. Parallel Networks is seeking injunctive relief, damages and attorneys’ fees and costs. Parallel Networks has asserted similar claims against other companies, including Array Networks, Inc., Barracuda Networks, Inc., Brocade Communications Systems, Inc., Cisco Systems, Inc., Citrix Systems, Inc., F5 Networks, Inc., Radware, Ltd., Riverbed Technology, Inc. and SAP AG. No trial date has been set.

 

These matters are in the early stages, but the Company intends to vigorously defend the lawsuits. We are unable to estimate a possible loss or range of possible loss in regards to these matters; therefore, no litigation reserve has been recorded in the accompanying consolidated balance sheet.

 

Lease and Other Commitments

 

Commencing in 2012, we entered into an equipment financing arrangement with a financial institution whereby the financial institution purchases and leases to us, equipment (primarily computer and network-related) for use in our business. Amounts financed under the leases are accounted for as capital leases. We financed $0.8 million under the arrangement in 2012. As of December 31, 2012 and 2013, we had outstanding borrowings of $0.6 million and $0.3 million under the arrangement.

 

We lease various operating spaces in California, Asia, and Europe under noncancelable operating lease arrangements that expire on various dates through January 2016. These arrangements require us to pay certain operating expenses, such as taxes, repairs, and insurance and contain renewal and escalation clauses. We recognize rent expense under these arrangements on a straight-line basis over the term of the lease.

 

In 2008, we entered into a technology licensing arrangement that requires us to make payments over the life of the associated patents which are expected to expire in 2020.

 

F-24


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

As of December 31, 2013, the aggregate future noncancelable minimum lease payments for our capital leases and operating leases consist of the following:

 

Years Ending December 31:

   Capital
Leases
    Operating
Leases
     Technology
Licensing
Arrangement
 
     (In thousands)  

2014

   $ 286      $ 2,087       $ 140   

2015

            1,856         140   

2016

            1,467         140   

2017

            1,477         140   

2018

            1,524         140   

Thereafter

            1,835         140   
  

 

 

   

 

 

    

 

 

 
   $           286      $      10,246       $           840   
    

 

 

    

 

 

 

Less: amount representing interest

     (5     
  

 

 

      

Present value of future minimum payments

     281        

Less: current portion of capital lease obligations

     (281     
  

 

 

      

Long-term portion of capital lease obligations

   $        
  

 

 

      

 

Rent expense for all operating leases amounted to $1.1 million, $2.6 million and $2.9 million for the years ended December 31, 2011, 2012 and 2013. As of December 31, 2012 and 2013, the current portion of our capital lease obligations is a component of accrued liabilities and the long-term portion is a component of other noncurrent liabilities in the accompanying consolidated balance sheets.

 

Contingent Payment

 

In connection with our loan and security agreement that we entered into in January 2010, we are required to make a contingent payment of $0.3 million to SVB upon the closing of the sale of the Company or the closing of a qualified initial public offering prior to January 22, 2020. As of December 31, 2012 and 2013, we have not accrued a liability for this contingent payment in the accompanying consolidated balance sheets as the sale of the Company or a qualified initial public offering did not occur as of each reporting date.

 

Guarantees

 

We have entered into agreements with some of our customers that contain indemnification provisions in the event of claims alleging that our products infringe the intellectual property rights of a third party. Other guarantees or indemnification arrangements include guarantees of product and service performance and standby letters of credit for lease facilities and corporate credit cards. We have not recorded a liability related to these indemnification and guarantee provisions and our guarantees and indemnification arrangements have not had any significant impact on our consolidated financial statements to date.

 

F-25


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

7. Common Stock

 

We had reserved shares of common stock, on an as-converted basis, for future issuance as follows:

 

     December 31,  
     2012      2013  
     (In thousands)  

Conversion of outstanding Series A convertible preferred stock

     8,913         8,913   

Conversion of outstanding Series B convertible preferred stock

     7,015         7,015   

Conversion of outstanding Series C convertible preferred stock

     14,194         14,641   

Conversion of outstanding Series D redeemable convertible preferred stock

             9,428   

Outstanding convertible preferred stock warrants

     450           

Outstanding stock options

     7,061         9,971   

Shares reserved for future option grants

     3,801         1,435   
  

 

 

    

 

 

 
           41,434               51,403   
  

 

 

    

 

 

 

 

8. Preferred Stock

 

For the years ended December 31, 2011, 2012 and 2013, we issued 4,028, 10,744 and 447,104 shares of our Series C convertible preferred stock upon the exercise of our Series C convertible preferred stock warrants.

 

In June 2013, we issued 50,000 shares of our Series D redeemable convertible preferred stock for gross proceeds of $50.0 million. In September 2013, we issued an additional 30,000 shares of our Series D redeemable convertible preferred stock for gross proceeds of $30.0 million.

 

Our preferred stock as of December 31, 2012 and 2013 consists of the following:

 

     December 31, 2012  

Convertible Preferred Stock:

   Shares
 Authorized 
     Shares
Issued and
Outstanding
     Net
  Carrying  
Value
     Aggregate
Liquidation
Preference
 
     (In thousands)  

Series A

     8,913         8,913       $ 6,625       $ 6,685   

Series B

     7,015         7,015         8,922         8,945   

Series C

     14,644         14,194         26,190         26,421   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total convertible preferred stock

     30,572         30,122       $ 41,737       $ 42,051   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

     December 31, 2013  

Convertible Preferred Stock:

   Shares
 Authorized 
     Shares
Issued and
Outstanding
     Net
  Carrying  
Value
     Aggregate
Liquidation
Preference
 
     (In thousands)  

Series A

     8,913         8,913       $ 6,625       $ 6,685   

Series B

     7,015         7,015         8,922         8,945   

Series C

     14,641         14,641         29,202         27,254   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total convertible preferred stock

     30,569         30,569       $ 44,749       $ 42,884   
  

 

 

    

 

 

    

 

 

    

 

 

 

Redeemable Convertible Preferred Stock:

                           

Series D

     115         80       $ 81,426       $ 80,000   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

F-26


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

We recorded the convertible preferred stock at fair value on the dates of issuance, net of issuance costs. Shares of our convertible preferred stock are not currently redeemable. We classify the convertible preferred stock outside of stockholders’ deficit because, in the event of certain “liquidation events” that are not solely within our control (including merger, acquisition, or sale of all or substantially all of our assets), the shares would become redeemable at the option of the holders. We did not adjust the carrying values of the convertible preferred stock to the deemed liquidation values of such shares since a liquidation event was not probable at any of the balance sheet dates. Subsequent adjustments to increase or decrease the carrying values to the ultimate liquidation values will be made only if and when it becomes probable that such a liquidation event will occur.

 

We recorded the Series D redeemable convertible preferred stock at fair value on the dates of issuance, net of issuance costs. We classify the redeemable convertible preferred stock outside of stockholders’ deficit because the shares contain a date-certain redemption feature. We record accretion on the redeemable convertible preferred stock for the difference between the initial net carrying value of $79.4 million and the redemption value on June 27, 2019, the earliest redemption date, of $112.9 million. The accretion will be recognized from the issuance date through the earliest redemption date of June 27, 2019 using the effective interest rate method. For the year ended December 31, 2013, we recognized accretion of $2.0 million.

 

The holders of our preferred stock have various rights, preferences, and privileges as follows:

 

Conversion Rights

 

Each share of Series A, Series B, Series C and Series D preferred stock is convertible at the option of the holder into the number of shares of common stock determined by dividing the original issue price by the applicable conversion price. The original issue price per share and initial conversion price per share are $0.75 for Series A, $1.275 for Series B and $1.8615 for Series C convertible preferred stock. As of December 31, 2013, at the current conversion ratios, each share of Series A, Series B and Series C convertible preferred stock will convert on a one-for-one basis into common stock. The original issue price per share and initial conversion price per share are $1,000.00 and $8.4855 for the Series D redeemable convertible preferred stock. As of December 31, 2013, at the current conversion ratio, the Series D redeemable convertible preferred stock will convert on a one-for-117.85 basis into common stock. The conversion price per share for the preferred stock shall be adjusted for certain recapitalizations, splits, combinations, common stock dividends or similar events, as discussed below.

 

Conversion Rights In the Event of a Qualified Initial Public Offering (IPO)

 

Each share of preferred stock shall automatically be converted into shares of common stock at the then-effective conversion price upon the consummation of the corporation’s sale of its common stock in a bona fide, firm commitment underwriting pursuant to a registration statement under the Securities Act of 1933, as amended, which results in aggregate gross cash proceeds to the corporation in excess of $10.0 million and the public offering price of which is not less than $18.75 per share (adjusted to reflect subsequent stock dividends, stock splits, or recapitalizations). In the event of the automatic conversion of the preferred stock upon a public offering as set forth above, the person(s) entitled to receive the common stock issuable upon such conversion of preferred stock shall not be deemed to have converted such preferred stock until immediately prior to the closing of such sale of securities.

 

Conversion Price Adjustments

 

The conversion price per share of the Series A, Series B, Series C and Series D preferred stock will be reduced if we issue any additional stock without consideration or for consideration per share less than the Series A, Series B, Series C and Series D preferred stock conversion price in effect for that series.

 

F-27


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

Voting Rights

 

Each share of preferred stock has a number of votes equal to the number of shares of common stock into which it is convertible. The holders of convertible preferred stock, voting together as a single class on an as-if-converted basis, have the right to elect two directors. The holders of redeemable convertible preferred stock, voting together as a single class on an as-converted basis, have the right to elect one director. The holders of the common stock, voting together as a single class, have the right to elect two directors. The holders of the common stock and preferred stock, voting together on an as-converted basis, elect the one remaining director.

 

Liquidation Rights

 

In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the corporation, the holders of the Series A, Series B, Series C and Series D preferred stock are entitled to liquidation preferences in the amount of $0.75 per share for the Series A, $1.275 per share for the Series B, $1.8615 per share for the Series C and $1,000 per share for the Series D preferred stock (adjusted to reflect stock splits, stock dividends, and recapitalizations), plus all declared but unpaid dividends. Following distribution of the liquidation preferences to the preferred stockholders, the remaining assets of the Company available for distribution to shareholders shall be distributed among the holders of the preferred stock and common stock pro rata based on the number of shares of common stock held by each on an as-converted basis, subject to the limitation that any holder of preferred stock shall be entitled to participate in the distribution only until such time as the aggregate proceeds received by such holder equals $1.875 per share of Series A, $3.1875 per share of Series B, $4.65375 per share of Series C and $2,500 per share for the Series D preferred stock.

 

Any acquisition of the corporation by means of merger or other form of corporate reorganization in which the outstanding shares of the corporation are exchanged for securities or other consideration issued, or caused to be issued, by the acquiring corporation or its subsidiary (other than a reincorporation transaction) or a sale of all or substantially all of the assets of the Company shall be treated as a liquidation, dissolution, or winding-up of the corporation and shall entitle the holders of preferred stock and common stock to receive at the closing the amounts specified above in cash, securities or other property.

 

Dividend Rights

 

The preferred stockholders are entitled to receive dividends at a rate of $0.045 per share of Series A per annum, $0.0765 per share of Series B per annum, $0.11169 per share of Series C per annum and $60 per share of Series D per annum (adjusted to reflect stock splits, stock dividends, and recapitalizations). Such dividends are payable out of funds legally available, are payable only when and if declared by our board of directors and are noncumulative. No dividends may be paid on the common stock during any fiscal year until the Series A, Series B, Series C and Series D preferred stockholders have received their dividend preference for that fiscal year. After the payment of these dividends, any dividends declared by our board of directors out of funds legally available shall be shared equally among all outstanding shares on an as-converted basis. No dividends have been declared to date.

 

Redemption Rights

 

The Series A, Series B and Series C convertible preferred stock does not contain any date-certain redemption features.

 

If our Series D redeemable convertible preferred stock is still outstanding on or after June 27, 2019, (which is the sixth anniversary of the initial issuance of our Series D redeemable convertible preferred stock), at the election of the Series D majority by written notice to the corporation, we will be required to redeem all requested, or any portion of, the holders of a majority of the outstanding shares of Series D redeemable convertible

 

F-28


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

preferred stock, out of funds legally available therefor. The redemption price is an amount per share equal to the Series D redeemable convertible preferred stock purchase price of $1,000 per share (as adjusted to reflect subsequent stock dividends, stock splits or recapitalizations), plus a cumulative dividend of 6.0% of the Series D redeemable convertible preferred stock purchase price. The redemption date shall be no later than thirty days following the Company’s receipt of such written notice. On June 27, 2019, the aggregate redemption value of the Series D redeemable convertible preferred stock would be $112.9 million.

 

9. Convertible Preferred Stock Warrants

 

In conjunction with our Series C convertible preferred stock financing in February 2008, we issued warrants to purchase 752,069 shares of Series C convertible preferred stock. The warrants were immediately exercisable in whole or in part over the term of the warrants.

 

For the years ended December 31, 2011, 2012 and 2013, 4,028, 10,744 and 450,372 of the warrants were exercised at an exercise price of $1.8615 per share, resulting in cash proceeds of $7,500, $20,000 and $0.8 million. We classified our convertible preferred stock warrants as liabilities in our accompanying consolidated balance sheets. The convertible preferred stock warrant liability was $2.2 million as of December 31, 2012. Upon exercise of warrants, the fair value of the warrant liability was reclassified to convertible preferred stock. As of December 31, 2013, we did not have any outstanding convertible preferred stock warrants.

 

10. Stock Option Plans

 

The total stock-based compensation recognized for stock-based awards granted under the 2004 Stock Option Plan (the “2004 Plan”) and the 2008 Stock Option Plan (the “2008 Plan”) in the consolidated statements of operations is as follows:

 

     Year Ended December 31,  
         2011              2012              2013      
     (In thousands)  

Cost of revenue

   $ 49       $ 87       $ 162   

Sales and marketing

     696         1,316         2,228   

Research and development

     551         776         1,356   

General and administrative

     168         361         536   
  

 

 

    

 

 

    

 

 

 

Total stock-based compensation

   $   1,464       $   2,540       $   4,282   
  

 

 

    

 

 

    

 

 

 

 

Stock-based compensation relating to non-employee stock-based awards was insignificant for the years ended December 31, 2011, 2012 and 2013.

 

Determination of Fair Value

 

The estimated grant-date fair value of our equity-based awards issued to employees was calculated using the Black-Scholes option-pricing model, based on the following assumptions:

 

     Year Ended
December  31,
 
     2011     2012     2013  

Expected term (in years)

     6.08        6.08        6.02 – 6.08   

Risk-free interest rate

     1.35% – 2.35     0.82% – 1.10     1.12% – 1.76

Expected volatility

     44.0% – 46.0     46.0     45.0% – 47.0

Dividend rate

            

 

 

F-29


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

The fair value of each grant of stock options was determined by the Company and our board of directors using the Black-Scholes option-pricing model and assumptions discussed below. Each of these inputs is subjective and generally requires significant judgment to determine.

 

   

Expected Term . The expected term represents the period that our stock-based awards are expected to be outstanding. For option grants that are considered to be “plain vanilla,” we determine the expected term using the simplified method. The simplified method deems the term to be the average of the time-to-vesting and the contractual life of the options. For other option grants, we estimate expected term using historical data on employee exercises and post-vesting employment termination behavior taking into account the contractual life of the award.

 

   

Risk-Free Interest Rate . The risk-free interest rate is based on the U.S. Treasury yield curve in effect at the time of grant for zero-coupon U.S. Treasury notes with maturities approximately equal to the option’s expected term.

 

   

Expected Volatility . Since we do not have a trading history of our common stock, the expected volatility was derived from the average historical stock volatilities of several unrelated public companies within our industry that we consider to be comparable to our business over a period equivalent to the expected term of the stock option grants.

 

   

Dividend Rate . The expected dividend was assumed to be zero as we have never paid dividends and have no current plans to do so.

 

   

Forfeiture Rate . We estimate our forfeiture rate based on an analysis of our actual forfeitures and will continue to evaluate the adequacy of the forfeiture rate based on actual forfeiture experience, analysis of employee turnover behavior, and other factors. The impact from any forfeiture rate adjustment would be recognized in full in the period of adjustment and if the actual number of future forfeitures differs from our estimates, we might be required to record adjustments to stock-based compensation in future periods.

 

   

Fair Value of Common Stock . The fair value of the shares of common stock underlying the stock options has historically been determined by our board of directors, with input from management. Because there has been no public market for our common stock, our board of directors has determined the fair value of the common stock at the time of grant of the option by considering a number of objective and subjective factors, including valuations of comparable companies, sales of our convertible preferred stock to unrelated third parties, operating and financial performance, the lack of liquidity of our capital stock, and general and industry-specific economic outlook. The fair value of the underlying common stock will be determined by our board of directors until such time as our common stock is listed on an established stock exchange or national market system.

 

2004 and 2008 Plans

 

In 2004 and 2008, we adopted the 2004 Plan and 2008 Plan for the purpose of granting stock-based awards to employees, directors, and consultants. Stock options granted under the stock option plans may be either incentive stock options (“ISOs”) or nonstatutory stock options (“NSOs”). ISOs may be granted to employees with exercise prices not less than the fair value of the common stock on the grant date as determined by the board of directors. Under the 2004 and 2008 Plans, NSOs may be granted to employees, directors, or consultants at exercise prices not less than 85% and 100% of the fair value of the common stock on the grant date as determined by the Company and our board of directors. If, at the time we grant an option, the optionee directly or by attribution owns stock possessing more than 10% of the total combined voting power of all classes of our stock (“10% shareholder”), the exercise price must be at least 110% of the fair value of the common stock on the grant date as determined by the board of directors. Options may be granted with vesting terms as determined by

 

F-30


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

the board of directors. Options granted are exercisable over a maximum term of ten years from the date of grant or five years from the date of grant for 10% shareholders and generally vest over a period of four years.

 

With the establishment of the 2008 Plan, we no longer grant stock options under the 2004 Plan.

 

A summary of activity under our stock option plans and related information are as follows:

 

           Options Outstanding  
   Shares
Available
for
Grant
    Number of
Shares
Underlying
Outstanding
Options
    Weighted-
Average
Exercise
Price
     Weighted-
Average
Remaining
Contractual
Term
(Years)
   Aggregate
Intrinsic
Value
 
     (In thousands)                 (In thousands)  

Outstanding—December 31, 2010

     175        4,430      $ 0.78       8.5    $ 8,174   

Options authorized

     3,854                       

Options granted

     (2,655     2,655        2.97         

Options exercised

            (777     1.21         

Common stock repurchased

     58                       

Options canceled

     204        (204     1.71         
  

 

 

   

 

 

         

Outstanding—December 31, 2011

     1,636        6,104        1.64       8.3      13,080   

Options authorized

     4,000                       

Options granted

     (2,362     2,362        3.96         

Options exercised

            (941     1.51         

Common stock repurchased

     63                       

Options canceled

     464        (464     3.18         
  

 

 

   

 

 

         

Outstanding—December 31, 2012

     3,801        7,061        2.33       7.9      24,297   

Options authorized

     1,333                       

Options granted

     (4,359     4,359        6.84         

Options exercised

            (822     3.03         

Common stock repurchased

     33                       

Options canceled

     627        (627     3.96         
  

 

 

   

 

 

         

Outstanding—December 31, 2013

     1,435        9,971      $ 4.14       7.9    $ 58,515   
  

 

 

   

 

 

         

Vested—December 31, 2013

       4,806      $ 2.16       3.2    $ 37,740   
    

 

 

         

Vested and expected to vest—December 31, 2013

       9,078      $ 3.93       7.8    $ 55,269   
    

 

 

         

 

The total estimated fair value for stock-based compensation awards granted to employees for the years ended December 31, 2011, 2012 and 2013 was $3.5 million, $4.5 million and $13.9 million. The weighted-average grant-date fair value of options granted to employees for the years ended December 31, 2011, 2012 and 2013 was $1.34, $1.96 and $3.28 per share. The intrinsic value of options exercised for the years ended December 31, 2011, 2012 and 2013, was determined to be $1.3 million, $2.6 million and $3.4 million.

 

F-31


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

The stock options outstanding and exercisable under our stock option plans as of December 31, 2013, are as follows:

 

     Options Outstanding    Options Vested and
Exercisable

Range of Exercise Price

   Number of
Shares
Underlying
Outstanding

Options
   Weighted-
Average
Remaining
Contractual
Life (Years)
   Weighted-
Average

Exercise
Price per
Share
   Number of
Shares
Underlying
Vested

Options
   Weighted-
Average

Exercise
Price per
Share

$0.03—$0.50

       1,040          4.3        $ 0.35          1,040        $ 0.35  

$0.51—$2.70

       1,724          6.4          1.15          1,551          1.09  

$2.71—$3.50

       2,126          7.6          3.01          1,493          3.01  

$3.51—$4.50

       971          8.5          4.11          368          4.41  

$4.51—$6.00

       1,176          9.1          5.78          246          5.78  

$6.01—$7.00

       1,497          9.6          6.19          52          6.19  

$7.01—$9.00

       1,437          9.8          8.51          56          7.01  
    

 

 

                

 

 

      
       9,971          7.9        $ 4.14          4,806        $ 2.16  
    

 

 

                

 

 

      

 

The total fair value of options vested for the years ended December 31, 2011, 2012 and 2013, was $0.9 million, $2.3 million and $3.8 million. As of December 31, 2013, we have stock-based compensation of $14.2 million related to unvested stock options net of estimated forfeitures that we expect to recognize over a weighted-average period of 2.9 years.

 

Early Exercise of Stock Options

 

We typically allow our employees and directors to exercise options granted under the stock option plans prior to vesting. The unvested shares are subject to our repurchase right at the original purchase price. The proceeds from the early exercise of stock options initially are recorded in other noncurrent liabilities and reclassified to common stock as our repurchase right lapses. We issued 435,594, 308,738 and 296,218 shares of common stock for the years ended December 31, 2011, 2012 and 2013 upon early exercise of stock options. For the years ended December 31, 2011, 2012 and 2013, we repurchased 57,772, 63,448 and 32,743 shares of unvested common stock related to early exercise stock options at the original purchase price due to the termination of employees. As of December 31, 2012 and 2013, 353,665 and 300,746 shares held by employees and directors were subject to repurchase at an aggregate price of $0.7 million and $1.3 million.

 

F-32


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

11. Net Income Per Share Available (Loss Attributable) to Common Stock

 

The following table sets forth the computation of our basic and diluted net income per share available (loss attributable) to common stock:

 

     Year Ended
December  31,
 
     2011     2012     2013  
     (In thousands, except per share data)  

Numerator:

      

Basic:

      

Net income available (loss attributable) to common stockholders

   $ 7,304      $ (90,150   $ (29,078

Less noncumulative dividends on convertible preferred stock

       (2,522              

Less undistributed earnings allocated to participating securities

     (3,839              
  

 

 

   

 

 

   

 

 

 

Net income available (loss attributable) to common stockholders, basic

   $ 943      $ (90,150   $ (29,078
  

 

 

   

 

 

   

 

 

 

Diluted:

      

Net income attributable (loss available) to common stockholders, basic

   $ 943      $ (90,150   $ (29,078

Add undistributed earnings re-allocated to participating securities

     285                 
  

 

 

   

 

 

   

 

 

 

Net income attributable (loss available) to common stockholders, diluted

   $ 1,228      $ (90,150   $ (29,078
  

 

 

   

 

 

   

 

 

 

Denominator:

      

Basic:

      

Weighted-average shares used in computing net income per share available (loss attributable) to common stockholders, basic

     7,397        8,344        9,262   
  

 

 

   

 

 

   

 

 

 

Diluted:

      

Weighted-average shares used in computing net income per share available (loss attributable) to common stockholders, basic

     7,397        8,344        9,262   

Add weighted-average effect of dilutive securities:

      

Stock options

     2,832                 

Convertible preferred stock warrants

     174                 
  

 

 

   

 

 

   

 

 

 

Weighted-average shares used in computing net income per share available (loss attributable) to common stockholders, diluted

     10,403        8,344        9,262   
  

 

 

   

 

 

   

 

 

 

Net income per share available (loss attributable) to common stockholders:

      

Basic

   $ 0.13      $ (10.80   $ (3.14
  

 

 

   

 

 

   

 

 

 

Diluted

   $ 0.12      $ (10.80   $ (3.14
  

 

 

   

 

 

   

 

 

 

 

F-33


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

The following outstanding shares of common stock equivalents were excluded from the computation of diluted net income per share available (loss attributable) to common stockholders for the periods presented because including them would have been antidilutive:

 

     Year Ended
December  31,
 
         2011              2012              2013      
     (In thousands)  

Redeemable convertible preferred stock and convertible preferred stock (on an as-converted basis)

             30,112         34,462   

Stock options to purchase common stock

     1,828         6,932         8,498   

Common stock subject to repurchase

     110         474         341   

Convertible preferred stock warrants

             461         44   
  

 

 

    

 

 

    

 

 

 
     1,938         37,979         43,345   
  

 

 

    

 

 

    

 

 

 

 

The following table sets forth the computation of our unaudited pro forma basic and diluted net loss per share attributable to common stockholders for the year ended December 31, 2013:

 

     Year Ended
December 31,
2013
 
     (In thousands)  

Net loss per share attributable to common stockholders

   $ (29,078

Change in fair value of convertible preferred stock warrant liability

     2   

Accretion of redeemable convertible preferred stock dividends

     1,982   
  

 

 

 

Net loss per share attributable to common stockholders used in computing pro forma net loss per share attributable to common stockholders, basic and diluted

   $ (27,094
  

 

 

 

Weighted-average shares used in computing net loss per share attributable to common stock, basic and diluted

     9,262   

Pro forma adjustment to reflect assumed conversion of redeemable convertible preferred stock and convertible preferred stock

     34,461   
  

 

 

 

Weighted-average shares used in computing pro forma net loss per share attributable to common stockholders, basic and diluted

     43,723   
  

 

 

 

Pro forma net loss per share attributable to common stockholders, basic and diluted

   $ (0.62
  

 

 

 

 

F-34


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

The following table sets forth the computation of our unaudited supplemental pro forma basic and diluted net loss per share attributable to common stockholders for the year ended December 31, 2013:

 

     Year Ended
December 31,
2013
 
     (In thousands)  

Net loss per share attributable to common stockholders

   $ (29,078

Change in fair value of convertible preferred stock warrant liability

     2   

Accretion of redeemable convertible preferred stock dividends

     1,982   

Supplemental pro forma adjustment to eliminate the interest expense on outstanding borrowings to be repaid with the proceeds from the initial public offering

     232   
  

 

 

 

Net loss per share attributable to common stockholders used in computing supplemental pro forma net loss per share attributable to common stockholders, basic and diluted

   $ (26,862
  

 

 

 

Weighted-average shares used in computing net loss per share attributable to common stock, basic and diluted

     9,262   

Supplemental pro forma adjustment to reflect assumed conversion of redeemable convertible preferred stock and convertible preferred stock

     34,461   

Supplemental pro forma adjustment to reflect shares issued to repay outstanding borrowings

     364   
  

 

 

 

Weighted-average shares used in computing pro forma net loss per share attributable to common stockholders, basic and diluted

     44,087   
  

 

 

 

Pro forma net loss per share attributable to common stockholders, basic and diluted

   $ (0.61
  

 

 

 

 

12. Income Taxes

 

The geographical breakdown of income (loss) before provision for income taxes is as follows:

 

     Year Ended
December  31,
 
          2011                2012                2013       
     (In thousands)  

Domestic

   $     7,299       $ (90,694   $ (28,313

International

     855         1,302        1,857   
  

 

 

    

 

 

   

 

 

 

Income (loss) before provision for income taxes

   $ 8,154       $ (89,392   $ (26,456
  

 

 

    

 

 

   

 

 

 

 

F-35


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

The components of the provision for income taxes are as follows:

 

     Year Ended
December  31,
 
          2011               2012               2013       
     (In thousands)  

Current provisions for income taxes:

      

Federal

   $      $      $   

State

     78        37        33   

Foreign

     914        736        599   
  

 

 

   

 

 

   

 

 

 

Total current

     992        773        632   
  

 

 

   

 

 

   

 

 

 

Deferred tax benefit:

      

Foreign

     (142     (15     8   
  

 

 

   

 

 

   

 

 

 

Total provision for income taxes

   $       850      $       758      $       640   
  

 

 

   

 

 

   

 

 

 

 

The reconciliation of the statutory federal income tax and our effective income tax is as follows:

 

     Year Ended
December  31,
 
          2011               2012               2013       
     (In thousands)  

Tax at statutory federal rate

   $ 2,773      $ (30,393   $ (8,995

State tax—net of federal benefit

     51        24        22   

Foreign rate differential

     443        199        (115

Change in valuation allowance

     (3,132     29,649        8,051   

Stock compensation and other permanent items

     650        1,199        1,576   

Expenses for uncertain tax positions

     56        86        90   

Others

     9        (6     11   
  

 

 

   

 

 

   

 

 

 

Provision for income taxes

   $       850      $       758      $       640   
  

 

 

   

 

 

   

 

 

 

 

The tax effects of temporary differences that give rise to significant portions of deferred tax assets (liabilities) are as follows:

 

     December 31,  
          2012               2013       
     (In thousands)  

Deferred tax assets:

    

Net operating loss carryforwards

   $ 3,530      $ 35,898   

Research and development credits, net of uncertain tax positions

     2,473        5,445   

Accruals, reserves, and other

     36,241        10,269   

Depreciation and amortization

     562        1,099   
  

 

 

   

 

 

 

Gross deferred tax assets

     42,806        52,711   

Valuation allowance

     (42,048     (52,413
  

 

 

   

 

 

 

Total deferred tax assets

     758        298   

Deferred tax liabilities:

    

Fixed assets depreciation

     (451       

Others

     (20     (19
  

 

 

   

 

 

 

Total deferred tax liabilities

     (471     (19
  

 

 

   

 

 

 

Net deferred tax assets

   $       287      $       279   
  

 

 

   

 

 

 

 

F-36


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

Recognition of deferred tax assets is appropriate when realization of these assets is more likely than not. Based upon the weight of available evidence, which includes our historical operating performance and the recorded cumulative net losses in prior fiscal periods, we recorded a full valuation allowance of $42.0 million and $52.4 million against the net U.S. deferred tax assets as of December 31, 2012 and 2013. The net valuation allowance decreased by $2.4 million for the year ended December 31, 2011, increased by $32.9 million for the year ended December 31, 2012, and increased by $10.4 million for the year ended December 31, 2013.

 

As of December 31, 2012 and 2013, we had U.S. federal net operating loss carryforwards of $4.6 million and $96.3 million and state net operating loss carryforwards of $42.3 million and $56.8 million. The federal net operating loss carryforwards will expire at various dates beginning in the year ending December 31, 2025, if not utilized. The state net operating loss carryforwards will expire at various dates beginning in the year ending December 31, 2016, if not utilized. Additionally, as of December 31, 2012 and 2013, we had U.S. federal research and development credit carryforwards of $1.6 million and $3.9 million and state research and development credit carryforwards of $1.9 million and $3.4 million. The federal credit carryforwards will begin to expire at various dates beginning in 2025 while the state credit carryforwards can be carried over indefinitely.

 

Utilization of the net operating losses and credit carryforwards may be subject to an annual limitation provided for in the Internal Revenue Code and similar state codes. Any annual limitation could result in the expiration of net operating loss and credit carryforwards before utilization.

 

Our policy with respect to our undistributed foreign subsidiaries earnings is to consider those earnings to be indefinitely reinvested and, accordingly, no related provision for U.S. federal and state income taxes has been provided. Upon distribution of those earnings in the form of dividends or otherwise, we may be subject to both U.S. income taxes (subject to an adjustment for foreign tax credits) and withholding taxes in the various countries. As of December 31, 2012 and 2013, the undistributed earnings were $0.9 million and $1.3 million.

 

Uncertain Tax Positions

 

As of December 31, 2012 and 2013, we had gross unrecognized tax benefits of $1.5 million and $1.8 million, none of which would materially impact the effective tax rate if realized during the year due to our full valuation allowance position. Our policy for classifying interest and penalties associated with unrecognized income tax benefits is to include such items in the provision for income tax.

 

The activity related to the unrecognized tax benefits is as follows:

 

     Year Ended
December  31,
 
     2011      2012      2013  
     (In thousands)  

Gross unrecognized tax benefits—beginning balance

   $ 1,057       $ 1,348       $ 1,463   

Increases related to tax positions taken during current year

     291         115         383   

Decreases related to tax positions taken during the current year

                       
  

 

 

    

 

 

    

 

 

 

Gross unrecognized tax benefits—ending balance

   $ 1,348       $ 1,463       $ 1,846   
  

 

 

    

 

 

    

 

 

 

 

These amounts are related to certain deferred tax assets with a corresponding valuation allowance. If recognized, the impact on our effective tax rate would not be material due to the full valuation allowance.

 

We believe that there will not be any significant changes in our unrecognized tax benefits in the next 12 months.

 

We are subject to taxation in the United States, various states, and several foreign jurisdictions. All tax years remain open and are subject to examinations by the appropriate governmental agencies in all of the jurisdictions where we file tax returns. We are not currently under examination in any major jurisdiction.

 

F-37


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

13. Segment Information

 

Our chief operating decision maker (“CODM”) is our Chief Executive Officer. Our CODM reviews financial information presented on a consolidated basis, accompanied by disaggregated information about revenue by geographic region for purposes of allocating resources and evaluating financial performance. Accordingly, we were determined to have a single reportable segment and operating segment structure.

 

The following table represents total revenue based on the customer’s location, as determined by the customer’s shipping address:

 

     Year Ended
December  31,
 
          2011                2012                2013       
    

(In thousands)

 

United States

   $ 38,674       $ 43,389       $ 68,127   

Japan

     37,504         58,653         39,581   

Asia Pacific, excluding Japan

     8,679         10,315         15,052   

EMEA

     4,812         6,469         12,087   

Other

     1,609         1,240         6,891   
  

 

 

    

 

 

    

 

 

 

Total revenue

   $   91,278       $ 120,066       $ 141,738   
  

 

 

    

 

 

    

 

 

 

 

No other country outside of the United States and Japan comprised 10% or greater of our revenue for the years ended December 31, 2012 and 2013.

 

Our long-lived assets, net by location are summarized as follows:

 

     December 31,  
           2012                  2013        
     (In thousands)  

United States

   $ 6,659       $ 8,599   

Japan

     614         572   

Asia Pacific, excluding Japan

     1,639         1,657   

EMEA

     54         34   
  

 

 

    

 

 

 

Total property and equipment, net and intangible assets, net

   $ 8,966       $ 10,862   
  

 

 

    

 

 

 

 

14. Related-Party Transactions

 

Revenue recognized from a significant stockholder, acting as a reseller of Company products, was $3.3 million, $5.4 million and $4.4 million for the years ended December 31, 2011, 2012 and 2013. As of December 31, 2012 and 2013, we had gross accounts receivable of $0.5 million and $0.1 million from this significant stockholder. As of December 31, 2012 and 2013, we had no outstanding payable balances to this significant stockholder.

 

15. Subsequent Events

 

On March 6, 2014, the Company effected a 1-for-3.75 reverse stock split of our common stock and convertible preferred stock (collectively referred to as “Capital Stock”). Shares of the Company’s Series D redeemable convertible preferred stock will not be subject to the split but instead the conversion price of the Series D redeemable convertible preferred stock will be adjusted proportionally to reflect the split of the Common Stock issuable upon conversion of the Series D redeemable convertible preferred stock instead. On

 

F-38


Table of Contents

A10 NETWORKS, INC.

 

Notes to Consolidated Financial Statements

 

March 6, 2014 (i) each 3.75 shares of outstanding Capital Stock was combined into 1 share of Capital Stock; (ii) the number of shares of Capital Stock for which each outstanding option to purchase Capital Stock is exercisable was proportionately reduced on a 1-for-3.75 basis; (iii) the exercise price of each such outstanding option was proportionately increased on a 1-for-3.75 basis; (iv) each 3.75 shares of authorized Capital Stock was reduced to 1 share of Capital Stock; and (v) the conversion price of the Series D redeemable convertible preferred stock was adjusted from $2.2628 to $8.4855. All of the share and per share amounts have been adjusted, on a retroactive basis, to reflect this 1-for-3.75 reverse stock split. The Company reincorporated in Delaware on March 6, 2014.

 

In connection with the Company’s initial publication of the December 31, 2013 financial statements, the Company evaluated subsequent events for financial statement recognition purposes through February 18, 2014. In connection with the Company’s reissuance of its financial statements in the amendment to the registration statement on Form S-1, the Company evaluated subsequent events for disclosure purposes through March 7, 2014.

 

F-39


Table of Contents

 

LOGO

ACOS: High Performance Application Networking Platform Efficient & Accurate Memory Architecture High Speed Shared Memory Architecture 64-bit Multi-Core Optimized CPU 1 CPU 2 CPU 3 CPU N Optimized Flow Distribution Flexible Traffic Accelerator Switching and Routing Application Acceleration Application Security Application Optimization A10® Compelling Price Performance Agile Software Based Architecture Multiple IT Delivery Models Data Center Efficient Designs Rich Security Functionality Customer-Friendly Licensing Model www.a10networks.com


Table of Contents

 

 

LOGO

 

 

 


Table of Contents

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.

 

The following table sets forth all expenses to be paid by the Registrant, other than underwriting discounts and commissions, upon completion of this offering. All amounts shown are estimates except for the SEC registration fee and the FINRA filing fee.

 

SEC registration fee

   $ 27,773   

FINRA filing fee

     32,844   

NYSE listing fee

     250,000   

Printing and engraving

     300,000   

Legal fees and expenses

     1,800,000   

Accounting fees and expenses

     1,900,000   

Transfer agent and registrar fees

     30,000   

Miscellaneous

     159,383   
  

 

 

 

Total

   $ 4,500,000   
  

 

 

 

 

ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

 

Section 145 of the Delaware General Corporation Law authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors, and other corporate agents.

 

On completion of this offering, as permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrant’s restated certificate of incorporation will include provisions that eliminate the personal liability of its directors and officers for monetary damages for breach of their fiduciary duty as directors and officers.

 

In addition, as permitted by Section 145 of the Delaware General Corporation Law, the restated certificate of incorporation and bylaws of the Registrant will provide that:

 

   

The Registrant shall indemnify its directors and officers for serving the Registrant in those capacities or for serving other business enterprises at the Registrant’s request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe such person’s conduct was unlawful.

 

   

The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.

 

   

The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.

 

   

The Registrant will not be obligated pursuant to the bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings authorized by the Registrant’s board of directors or brought to enforce a right to indemnification.

 

   

The rights conferred in the restated certificate of incorporation and bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees, and agents and to obtain insurance to indemnify such persons.

 

II-1


Table of Contents
   

The Registrant may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees, and agents.

 

The Registrant’s policy is to enter into separate indemnification agreements with each of its directors and officers that provide the maximum indemnity allowed to directors and executive officers by Section 145 of the Delaware General Corporation Law and also to provide for certain additional procedural protections. The Registrant also maintains directors and officers insurance to insure such persons against certain liabilities.

 

These indemnification provisions and the indemnification agreements entered into between the Registrant and its officers and directors may be sufficiently broad to permit indemnification of the Registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.

 

The underwriting agreement filed as Exhibit 1.1 to this Registration Statement provides for indemnification by the underwriters of the Registrant and its officers and directors for certain liabilities arising under the Securities Act and otherwise.

 

ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.

 

Since January 1, 2010, the Registrant issued the following unregistered securities:

 

  a.   Preferred Stock Issuances

 

On June 27, 2013, the Registrant issued 50,000 shares of its Series D redeemable convertible preferred stock to four entities, each of which is related to Summit Partners, L.P., at a purchase price of $1,000 per share.

 

On September 30, 2013, the Registrant issued 30,000 shares of its Series D redeemable convertible preferred stock to the same four entities at a purchase price of $1,000 per share.

 

  b.   Option and Common Stock Issuances

 

The following information gives effect to the 1-for-3.75 reverse stock split of our common stock effected March 6, 2014.

 

From January 1, 2010 through December 31, 2013, the Registrant granted to its officers, directors, employees, consultants and other service providers options to purchase an aggregate of 11,662,015 shares of common stock under its 2008 Stock Plan at exercise prices ranging from $0.71 to $8.51 per share. Of the options granted an option to purchase 40,000 shares of common stock was granted to 1 non-employee director with a per share exercise price of $6.19, options to purchase 1,450,657 shares of common stock were granted to 5 executive officers with per share exercise prices ranging from $0.71 to $8.51, options to purchase 9,879,130 shares of common stock were granted to 731 other employees with per share exercise prices ranging from $0.71 to $8.51 and options to purchase 292,228 shares of common stock were granted to 32 consultants with per share exercise prices ranging from $0.71 to $8.51.

 

From January 1, 2010 through December 31, 2013, the Registrant issued and sold to its officers, directors, employees, consultants and other service providers an aggregate of 2,940,825 shares of its common stock upon the exercise of options under its 2008 Stock Plan at exercise prices ranging from $0.19 to $6.19 per share, for a weighted-average exercise price of $1.75; and an aggregate of 521,677 shares of its common stock upon the exercise of options under its 2004 Stock Plan at exercise prices ranging from $0.004 to $0.19 per share, at a weighted-average exercise price of $0.17. Of the options exercised, 125,333 shares of common stock were issued to 2 non-employee directors with a per share exercise price of $0.004 to $6.19, 442,129 shares of common stock were issued to 4 executive officers with per share exercise prices ranging from $0.19 to $6.19, 2,767,339 shares of common stock were issued to 255 other employees with per share exercise prices ranging from $0.04 to $6.19 and 127,701 shares of common stock were issued to 10 consultants with per share exercise prices ranging from $0.45 to $6.19.

 

II-2


Table of Contents

In May 2010, the Registrant issued 5,981 shares of common stock to an individual.

 

None of the foregoing transactions involved any underwriters, underwriting discounts or commissions, or any public offering.

 

The offers, sales, and issuances of the securities described in Item 15(a) were deemed to be exempt from registration under the Securities Act in reliance on Section 4(a)(2) of the Securities Act or Regulation D promulgated thereunder as transactions by an issuer not involving a public offering. The recipients of securities in each of these transactions acquired the securities for investment only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the securities issued in these transactions. Each of the recipients of securities in these transactions was an accredited or sophisticated person and had adequate access, through employment, business or other relationships, to information about us.

 

The offers, sales and issuances of the securities described in Item 15(b) were deemed to be exempt from registration under the Securities Act under either (1) Rule 701 promulgated under the Securities Act as offers and sale of securities pursuant to certain compensatory benefit plans and contracts relating to compensation in compliance with Rule 701 or (2) Section 4(a)(2) of the Securities Act as transactions by an issuer not involving any public offering, or because they did not involve a sales of securities. The recipients of securities in each of these transactions represented their intention to acquire the securities for investment only and not with view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the stock certificates and instruments issued in such transactions. All recipients had adequate access, through their relationships with us, to information about us.

 

ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.

 

(a) Exhibits.

 

We have filed the exhibits listed on the accompanying Exhibit Index of this Registration Statement.

 

(b) Financial Statement Schedules.

 

All financial statement schedules are omitted because the information called for is not required or is shown either in the consolidated financial statements or in the notes thereto.

 

ITEM 17. UNDERTAKINGS.

 

The undersigned Registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

 

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

 

II-3


Table of Contents

The undersigned Registrant hereby undertakes that:

 

  (1)   For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or Rule 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

 

  (2)   For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

II-4


Table of Contents

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Amendment No. 1 to the registration statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in San Jose, California, on the 10 th day of March, 2014.

 

A10 NETWORKS, INC.
By:  

/s/    Lee Chen

  Lee Chen
  Chief Executive Officer and President

 

Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to the registration statement on Form S-1 has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

/s/    Lee Chen        

Lee Chen

  Chief Executive Officer, President and Director (Principal Executive Officer)  

March 10, 2014

 

*

Greg Straughn

 

Chief Financial Officer

(Principal Accounting and Financial Officer)

 

March 10, 2014

 

*

Robert Cochran

  Vice President, Legal and Corporate Collaboration and Secretary and Director  

March 10, 2014

*

Peter Y. Chung

  Director   March 10, 2014

/s/    Alan S. Henricks        

Alan S. Henricks

  Director   March 10, 2014

*

Phillip J. Salsbury, P.h.D.

  Director   March 10, 2014

 

*By:     /s/ Lee Chen
  Lee Chen
  Attorney-in-fact

 

II-5


Table of Contents

EXHIBIT INDEX

 

Exhibit
Number

  

Description

  1.1    Form of Underwriting Agreement
  3.1    Restated Certificate of Incorporation of the Registrant, to be in effect upon completion of this offering.
  3.2    Form of Amended and Restated Bylaws of the Registrant, to be in effect upon completion of this offering.
  4.1    Specimen common stock certificate of the Registrant.
  4.2    Fourth Amended and Restated Rights Agreement, dated as of June 27, 2013 between the Registrant and certain holders of the Registrant’s capital stock named therein.
  5.1    Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1    Form of Indemnification Agreement between the Registrant and each of its directors and executive officers, to be in effect upon the completion of the offering.
10.2+    2004 Stock Plan and forms of agreements thereunder.
10.3+    2008 Stock Plan and forms of agreements thereunder.
10.4+    2014 Equity Incentive Plan and forms of agreements thereunder, to be in effect upon completion of this offering.
10.5+    2014 Equity Stock Purchase Plan and forms of agreements thereunder, to be in effect upon completion of this offering.
10.6+    Offer Letter, dated July 30, 2004, by and between the Registrant and Lee Chen.
10.7+    Offer Letter, dated November 3, 2008, by and between the Registrant and Rajkumar Jalan.
10.8+    Offer Letter, dated May 31, 2011, by and between the Registrant and Greg Straughn.
10.9+    Offer Letter, dated January 4, 2012, by and between the Registrant and Robert Cochran.
10.10+    Offer Letter, dated July 18, 2013, by and between the Registrant and Ray Smets.
10.11+    Offer Letter, dated August 28, 2013, by and between the Registrant and Jason Matlof.
10.12†**    Reseller Agreement, dated April 2, 2009, by and between the Registrant and NEC Corporation.
10.13**    First Amendment to Reseller Agreement, dated May 19, 2011, by and between the Registrant and NEC Corporation.
10.14†**    Second Amendment to Reseller Agreement, dated April 1, 2011, by and between the Registrant and NEC Corporation.
10.15†**    Third Amendment to Reseller Agreement, dated April 1, 2011, by and between the Registrant and NEC Corporation.
10.16†**    Fourth Amendment to Reseller Agreement, dated October 3, 2011, by and between the Registrant and NEC Corporation.
10.17†**    Fifth Amendment to Reseller Agreement, dated April 2, 2012, by and between the Registrant and NEC Corporation.
10.18†**    Sixth Amendment to Reseller Agreement, dated November 29, 2012, by and between the Registrant and NEC Corporation.
10.19†**    Seventh Amendment to Reseller Agreement, dated April 9, 2013, by and between the Registrant and NEC Corporation.
10.20†**    Eighth Amendment to Reseller Agreement, dated October 22, 2013, by and between the Registrant and NEC Corporation.


Table of Contents

Exhibit
Number

  

Description

10.21†**    Manufacturing Services Agreement, dated December 8, 2006, by and between the Registrant and Lanner Electronics (USA).
10.22**    Amendment No. 1 to Manufacturing Services Agreement, dated June 27, 2013, by and between the Registrant and Lanner Electronics (USA).
10.23**    Contract Manufacturer Agreement, dated July 1, 2008, by and between the Registrant and AEWIN Technologies, Inc.
10.24    Credit Agreement, dated as of September 30, 2013, among the Registrant, Royal Bank of Canada, as lender and administrative agent, and JPMorgan Chase Bank, N.A., and Bank of America, N.A., as lenders.
10.25+    Form of Change in Control and Severance Agreement.
21.1    List of subsidiaries of the Registrant.
23.1    Consent of Deloitte & Touche LLP, independent registered public accounting firm.
23.2    Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1).
24.1**    Power of Attorney.

 

*   To be filed by amendment.
**   Previously filed
+   Indicates a management contract or compensatory plan.
  Portions of this exhibit have been omitted pending a determination by the Securities and Exchange Commission as to whether these portions should be granted confidential treatment.

Exhibit 1.1

 

                                  Shares

 

A10 NETWORKS, INC.

COMMON STOCK

$        PAR VALUE PER SHARE

 

 

 

UNDERWRITING AGREEMENT

 

 

 

 

 

                     , 2014


                              , 2014                        

 

Morgan Stanley & Co. LLC

Merrill Lynch, Pierce, Fenner & Smith

                     Incorporated

J.P. Morgan Securities LLC

RBC Capital Markets, LLC

c/o Morgan Stanley & Co. LLC

      1585 Broadway

      New York, New York 10036

Ladies and Gentlemen:

A10 Networks, Inc., a Delaware corporation (the “ Company ”), proposes to issue and sell to the several Underwriters named in Schedule II hereto (the “ Underwriters ”), and certain stockholders of the Company (the “ Selling Stockholders ”) named in Schedule I hereto severally propose to sell to the several Underwriters, an aggregate of                               shares of the Common Stock, par value $      per share, of the Company (the “ Firm Shares ”), of which                              shares are to be issued and sold by the Company and                              shares are to be sold by the Selling Stockholders, each Selling Stockholder selling the amount set forth opposite such Selling Stockholder’s name in Schedule I hereto.

In addition, the Selling Stockholders propose to sell to the several Underwriters not more than an additional                              shares of Common Stock, par value $      per share (the “ Additional Shares ”), if and to the extent that you, as managers of the offering, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the “ Shares .” The shares of Common Stock, par value $      per share, of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the “ Common Stock .” The Company and the Selling Stockholders are hereinafter sometimes collectively referred to as the “ Sellers .”

The Company has filed with the Securities and Exchange Commission (the “ Commission ”) a registration statement, including a prospectus, relating to the Shares. The registration statement as amended at the time it becomes effective, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the “ Securities Act ”), is hereinafter referred to as the “ Registration Statement ”; the prospectus in the form first used to confirm sales of Shares (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “ Prospectus .” If the


Company has filed an abbreviated registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the “ Rule 462 Registration Statement ”), then any reference herein to the term “ Registration Statement ” shall be deemed to include such Rule 462 Registration Statement.

For purposes of this Agreement, “ free writing prospectus ” has the meaning set forth in Rule 405 under the Securities Act, “ Time of Sale Prospectus ” means the preliminary prospectus contained in the Registration Statement at the time of its effectiveness together with the documents, pricing information and the free writing prospectuses, if any, each as set forth in Schedule III hereto, and “ broadly available road show ” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof.

1.           Representations and Warranties of the Company .  The Company represents and warrants to and agrees with each of the Underwriters that:

(a)        The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the Company’s knowledge, threatened by the Commission.

(b)        (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain as of its date or as of the Closing Date any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and

 

2


warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.

(c)        The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule III hereto, and electronic road shows, if any, each furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.

(d)        The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own or lease its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole (a “ Material Adverse Effect ”).

(e)        Each significant subsidiary (as such term is defined in Rule 1-02 of Regulation S-X) of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation (to the extent such concepts are applicable under such laws), has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (to the extent such concepts are applicable under such laws), except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect; all of the issued shares of capital stock of each significant subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except to the extent that such liens, encumbrances, equities or claims would not be reasonably likely to have a Material Adverse Effect.

 

3


(f)        This Agreement has been duly authorized, executed and delivered by the Company.

(g)       The authorized capital stock of the Company will conform, as of the Closing Date, as to legal matters to the description thereof contained in each of the Time of Sale Prospectus and the Prospectus.

(h)       The shares of Common Stock (including the Shares to be sold by the Selling Stockholders) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable.

(i)        The Shares to be sold by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights that have not been validly waived.

(j)        The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not (i) contravene any provision of applicable law, (ii) violate the terms of the certificate of incorporation or by-laws of the Company, (iii) conflict with or result in a breach of any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries or (iv) result in any violation of any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, except that in the case of clauses (i), (iii) and (iv) as would not, individually or in the aggregate, reasonably be expected have a Material Adverse Effect or materially affect the power or ability of the Company to perform its obligations under this Agreement; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required to be obtained for the performance by the Company of its obligations under this Agreement, except (i) such as may have previously been obtained, (ii) as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions or the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“ FINRA ”) in connection with the offer and sale of the Shares and (iii) for any such consents, approvals, authorizations, orders or qualifications, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect or a material adverse effect on the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus.

(k)       There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus and the Prospectus.

 

4


(l)        There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or materially affect the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other documents to which the Company or its subsidiaries is subject or by which the Company or its subsidiaries is bound that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described in all material respects or filed as required.

(m)       Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.

(n)        The Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

(o)        The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, be reasonably expected to have a Material Adverse Effect.

(p)        There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, be reasonably expected to have a Material Adverse Effect.

 

5


(q)        There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration Statement, except as otherwise have been validly waived in connection with the issuance and sale of the Shares contemplated hereby and as have been described in the Time of Sale Prospectus and the Prospectus.

(r)        Except as described in the Time of Sale Prospectus, the Registration Statement and the Prospectus, neither the Company nor any officer, director, subsidiary, or controlled affiliates, nor to the Company’s knowledge, any agent, distributor, or representative of the Company or of any of its subsidiaries or controlled affiliates has any reason to believe that the Company or any of the foregoing persons or entities have taken any action in violation of, or which may cause the Company or any of its subsidiaries to be in violation of, any applicable U.S. law governing imports into or exports from the United States in connection with the Company’s products, including without limitation: any executive orders or regulations issued with respect to the laws referred to in this Section 1(r), the Arms Export Control Act (22 U.S.C.A. § 2278), the Export Administration Act (50 U.S.C. App. §§ 2401-2420), the International Traffic in Arms Regulations (22 CFR 120-130), the Export Administration Regulations (15 CFR 730 et seq.), the Customs Laws of the United States (19 U.S.C. § 1 et seq.), the International Emergency Economic Powers Act (50 U.S.C. § 1701-1706), any other export control regulations issued by the agencies listed in Part 730 of the Export Administration Regulations, or any applicable non-U.S. laws of a similar nature, except non-compliances which would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. Except as described in the Time of Sale Prospectus, the Registration Statement and the Prospectus, there has never been a claim or change made, investigation undertaken, violation found, or settlement of any enforcement action under any of the laws referred to in this Section 1(r) by any governmental entity with respect to matters arising under such laws against the Company, its subsidiaries or, to the Company’s knowledge, against the agents, distributors, or representative of any of the foregoing in connection with their relationship with the Company. The Company maintains a compliance program appropriate to the requirements of the aforementioned laws.

(s)        Neither the Company nor any of its subsidiaries or controlled affiliates, nor any director or officer of the Company, nor, to the Company’s knowledge, any employee, agent or representative of the Company or of any of its subsidiaries or controlled affiliates acting on behalf of the Company or any of its subsidiaries or controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of

 

6


the foregoing, or any political party or party official or candidate for political office) to illegally influence official action or secure an improper advantage for the Company or its subsidiaries; and the Company and its subsidiaries and controlled affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and are maintaining (and have no present or currently foreseeable intent to discontinue) policies and procedures designed to promote and achieve compliance with such laws.

(t)        The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Anti-Money Laundering Laws ”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

(u)        (i)  Neither the Company nor any of its subsidiaries, nor any director or officer thereof, nor, to the Company’s knowledge, any employee, agent, controlled affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“ Person ”) that is, or is owned or controlled by a Person that is:

(A)      the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“ OFAC ”), the United Nations Security Council (“ UNSC ”), the European Union (“ EU ”), Her Majesty’s Treasury (“ HMT ”), or other relevant sanctions authority (collectively, “ Sanctions ”), nor

(B)      located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan and Syria).

(ii)     The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:

(A)       to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or

 

7


(B)      in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).

(C)      For the past 5 years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.

(v)        Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, and except as disclosed in the Time of Sale Prospectus and the Prospectus, (i) the Company and its subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction; (ii) the Company has not purchased any of its outstanding capital stock other than from its employees or other service providers in connection with the termination of their service, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock other than ordinary and customary dividends; and (iii) there has not been any material change in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, taken as a whole, except in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.

(w)       The Company and its subsidiaries do not own any real property. The Company and its subsidiaries have good and marketable title to all personal property (other than intellectual property, which is covered by Section 1(x)) owned by them which is material to the business of the Company and its subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects, except such as are described in the Time of Sale Prospectus and the Prospectus or such as do not materially diminish the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries, taken as whole; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and, to the Company’s knowledge, enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries, taken as a whole, in each case except as described in the Time of Sale Prospectus and the Prospectus.

(x)        The Company and its subsidiaries, taken as a whole, own, possess or have the valid right to use, or can acquire on commercially reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in connection with the business now

 

8


conducted by them (the “ Company Intellectual Property ”). Except as disclosed in the Time of Sale Prospectus, the Registration Statement and the Prospectus, or as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, (i) to the Company’s knowledge, there are no third parties who have been able to establish any material rights to any Company Intellectual Property, except for the retained rights of the owners of the Company Intellectual Property that is licensed to the Company; (ii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights or any of its subsidiaries’ rights in or to any Company Intellectual Property and neither the Company nor any of its subsidiaries is aware of any facts that could form a reasonable basis for any such actions, suits, proceedings or claims; and (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company or any of its subsidiaries infringes or misappropriates any intellectual property or other proprietary rights of others, and neither the Company nor any of its subsidiaries is aware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim.

(y)        No material labor dispute with the employees of the Company or any of its subsidiaries exists, except as described in the Time of Sale Prospectus and the Prospectus, or, to the knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that would reasonably be expected to have a Material Adverse Effect.

(z)        The Company and each of its subsidiaries, taken a whole, are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are, in the Company’s reasonable judgment, prudent and customary in the businesses in which they are engaged; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect, except as described in the Time of Sale Prospectus and the Prospectus.

(aa)      The Company and its subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses except where the failure to obtain such certificates, authorizations or permits would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, and neither the Company nor any of its subsidiaries has received any written notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect, except as described in the Time of Sale Prospectus.

 

9


(bb)      The Company and its subsidiaries, taken as a whole, maintain a system of internal accounting controls over financial reporting sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States (“ U.S. GAAP ”) and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the amounts reflected on the Company’s balance sheet for assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Time of Sale Prospectus, since the end of the Company’s most recent fiscal year for which audited financial statements are available, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal control over financial reporting.

(cc)      The financial statements of the Company filed with the Commission as a part of the Registration Statement and included in the Time of Sale Prospectus and the Prospectus present fairly the financial position of the Company as of the dates indicated and the results of its operations and cash flows for the periods specified. Such financial statements have been prepared in conformity with U.S. GAAP applied on a consistent basis throughout the periods involved. To the Company’s knowledge, Deloitte & Touche LLP is an independent public accounting firm within the meaning of the Securities Act and the rules and regulations promulgated thereunder.

(dd)      The Company maintains disclosure controls and procedures that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective.

(ee)      Except as described in the Time of Sale Prospectus and the Registration Statement, the Company has not sold, issued or distributed any shares of Common Stock during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.

 

10


(ff)       The Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect) and have paid all taxes required to be paid thereon (except for cases in which the failure to file or pay would not reasonably be expected to have a Material Adverse Effect, or, except as currently being contested in good faith and for which reserves required by U.S. GAAP have been created in the financial statements of the Company), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company nor any of its subsidiaries have any notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely to the Company or its subsidiaries and which could reasonably be expected to have) a Material Adverse Effect.

(gg)     From the time of initial confidential submission of the Registration Statement to the Commission (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an “ Emerging Growth Company ”). “ Testing-the-Waters Communication ” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act.

(hh)     The Company (i) has not alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of Morgan Stanley & Co. LLC with entities that are qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act and (ii) has not authorized anyone other than Morgan Stanley & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC to engage in Testing-the-Waters Communications. The Company reconfirms that Morgan Stanley & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC have each been authorized to act on its behalf in undertaking Testing-the-Waters Communications, if any. The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule IV hereto. “ Written Testing-the-Waters Communication ” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act.

(ii)       As of the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, none of (A) the Time of Sale Prospectus, (B) any free writing prospectus, when considered together with the Time of Sale Prospectus, and (C) any individual Written Testing-the-Waters Communication, when considered together with the Time of Sale Prospectus, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

11


2.           Representations and Warranties of the Selling Stockholders .  Each Selling Stockholder, solely with respect to itself and not as to any other Selling Stockholder, represents and warrants to and agrees with each of the Underwriters that:

(a)        This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.

(b)        The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and                            , as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder (the “ Custody Agreement ”) and the Power of Attorney appointing certain individuals as such Selling Stockholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “ Power of Attorney ”) will not contravene (i) any provision of applicable law, (ii) the certificate of incorporation or by-laws of such Selling Stockholder (if such Selling Stockholder is a corporation), (iii) any agreement or other instrument binding upon such Selling Stockholder, (iv) the constituent documents of such Selling Stockholder (if such Selling Stockholder is not a natural person or a corporation) or (v) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, except in the cases of (i) and (iii) above, for such contraventions as would not reasonably be expected to have a material adverse effect on the ability of such Selling Stockholder to perform its obligations hereunder, or under the Custody Agreement or the Power of Attorney. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as have been obtained and made under the Securities Act and such as may be required by the Exchange Act or the rules and regulations thereunder or the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares.

(c)        With respect to the Shares to be sold by such Selling Stockholder that are outstanding on the date hereof, such Selling Stockholder has and will have on the Closing Date, and with respect to such Shares to be sold upon exercise of options on the Closing Date will have on the Closing Date, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances (other than those created by the Custody Agreement and Power of Attorney) and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder or a security entitlement in respect of such Shares.

 

12


(d)        The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Stockholder and are valid and binding agreements of such Selling Stockholder, except as limited by laws of general application relating to bankruptcy, insolvency and the relief of debtors and as limited by rules of law governing specific performance, injunctive relief or other equitable remedies and by general principles of equity.

(e)        Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“ Cede ”) or such other nominee as may be designated by the Depository Trust Company (“ DTC ”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “ UCC ”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be validly asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.

(f)        Such Selling Stockholder is not prompted by any material information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.

(g)        (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the

 

13


circumstances under which they were made, not misleading, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such Selling Stockholder makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in such Registration Statement, Time of Sale Prospectus or Prospectus; provided further that, the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, any broadly available road show, or the Prospectus or any amendments or supplements thereto it being understood and agreed that the only information furnished by such Selling Stockholder consists of the name of such Selling Stockholder the number of offered shares and the address and other information with respect to such Selling Stockholder (excluding percentages) that appear in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” in the Prospectus (“ Selling Stockholder Information ”).

3.           Agreements to Sell and Purchase . Each Seller, severally and not jointly, hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from such Seller at $              a share (the “ Purchase Price ”) the number of Firm Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion to the number of Firm Shares to be sold by such Seller as the number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the total number of Firm Shares.

On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Selling Stockholders, severally and not jointly, hereby agree to sell to the Underwriters the Additional Shares, and the Underwriters shall have the right to purchase, severally and not jointly, at the Purchase Price up to                                  Additional Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion to the number of Firm Shares as the number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the total number of Firm Shares, provided, however, that the amount paid by the Underwriters for any Additional Shares shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm Shares but not payable on such Additional Shares. You may

 

14


exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date on which such shares are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Shares nor later than ten business days after the date of such notice. Additional Shares may be purchased as provided in Section 5 hereof solely for the purpose of covering over-allotments made in connection with the offering of the Firm Shares. On each day, if any, that Additional Shares are to be purchased (an “ Option Closing Date ”), each Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the total number of Firm Shares.

The Company hereby agrees that, without the prior written consent of Morgan Stanley & Co. LLC on behalf of the Underwriters, it will not, during the period ending 180 days after the date of the Prospectus (the “ Restricted Period ”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock.

The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be sold hereunder, (b) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriters have been advised in writing, (c) the grant of options to purchase or the issuance of shares of Common Stock by the Company to employees, officers, directors, advisors or consultants of the Company pursuant to employee benefit plans in effect on the date hereof and described in the Time of Sale Prospectus and Prospectus or pursuant to an employee stock purchase plan described in the Time of Sale Prospectus and Prospectus, (d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), for the transfer of shares of Common Stock, provided that such plan does not provide for the transfer of Common Stock during the Restricted Period and no public announcement or filing under the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made by or on behalf of the Company, (e) the sale or issuance of or entry into an agreement to sell or issue shares of Common Stock or securities convertible into or exercisable for Common Stock in connection with any (i) mergers, (ii) acquisition of securities, businesses, property.

 

15


technologies or other assets, (iii) joint ventures, (iv) strategic alliances, commercial relationships or other collaborations, (v) equipment leasing arrangements, (vi) debt financing or (vii) the assumption of employee benefit plans in connection with mergers or acquisitions; provided, that the aggregate number of shares of Common Stock or securities convertible into or exercisable for Common Stock (on an as-converted or as-exercised basis, as the case may be) that the Company may sell or issue or agree to sell or issue pursuant to this clause (e) shall not exceed 5% of the total number of shares of the Company’s Common Stock issued and outstanding immediately following the completion of the transactions contemplated by this Agreement (determined on a fully-diluted basis and as adjusted for stock splits, stock dividends and other similar events after the date hereof); and provided further, that each recipient of shares of Common Stock or securities convertible into or exercisable for Common Stock pursuant to this clause (e) shall, on or prior to such issuance, execute a lock-up agreement substantially in the form of Exhibit A hereto with respect to the remaining portion of the Restricted Period, or (f) the filing of one or more registration statements on Form S-8 with the Commission with respect to shares of Common Stock issued or issuable under any equity compensation plan in effect on the date hereof.

If Morgan Stanley & Co. LLC in its sole discretion, agrees to release or waive the restrictions set forth in a lock-up letter described in Section 6(g) hereof for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by (i) a press release substantially in the form of Exhibit B hereto through a major news service or (ii) any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two business days before the effective date of the release or waiver.

4.           Terms of Public Offering . The Sellers are advised by you that the Underwriters propose to make a public offering of their respective portions of the Shares as soon after the Registration Statement and this Agreement have become effective as in your judgment is advisable. The Sellers are further advised by you that the Shares are to be offered to the public initially at $        a share (the “ Public Offering Price ”) and to certain dealers selected by you at a price that represents a concession not in excess of $        a share under the Public Offering Price, and that any Underwriter may allow, and such dealers may reallow, a concession, not in excess of $        a share, to any Underwriter or to certain other dealers.

5.           Payment and Delivery . Payment for the Firm Shares to be sold by each Seller shall be made to such Seller in Federal or other funds immediately available in New York City against delivery of such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on                           , 20      , or at such other time on the same or such other date, not later than                      , 20      , as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the “ Closing Date .” The Closing Date and each Option Closing Date are each sometimes referred to herein as an “ Applicable Closing Date .”

 

16


Payment for any Additional Shares shall be made to the Selling Stockholders in Federal or other funds immediately available in New York City against delivery of such Additional Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date specified in the corresponding notice described in Section 3 or at such other time on the same or on such other date, in any event not later than                , 20      , as shall be designated in writing by you.

The Firm Shares and Additional Shares shall be registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and Additional Shares shall be delivered to you on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the several Underwriters. The Purchase Price payable by the Underwriters shall be reduced by (i) any transfer taxes paid by, or on behalf of, the Underwriters in connection with the transfer of the Shares to the Underwriters duly paid and (ii) any withholding required by law.

6.          Conditions to the Underwriters’ Obligations . The obligations of the Sellers to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on each Applicable Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [                       ] (New York City time) on the date hereof.

The several obligations of the Underwriters are subject to the following further conditions:

(a)        Subsequent to the execution and delivery of this Agreement and prior to each Applicable Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.

(b)        The Underwriters shall have received on each Applicable Closing Date a certificate, dated such Applicable Closing Date and signed on behalf of the Company by an executive officer of the Company, to the effect set forth in Section 6(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such Applicable Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Applicable Closing Date.

The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.

 

17


(c)        The Underwriters shall have received on each Applicable Closing Date an opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation (“ WSGR ”), outside counsel for the Company, dated such Applicable Closing Date, substantially in the form attached as Exhibit C hereto.

(d)        The Underwriters shall have received on each Applicable Closing Date an opinion of WSGR, counsel for certain Selling Stockholders named therein, dated such Applicable Closing Date, substantially in the form attached as Exhibit C hereto, and for all other Selling Stockholders not named therein, an opinion from such other counsel acceptable to the Underwriters, dated such Applicable Closing Date, an opinion of counsel, including the opinions set forth on Annex I hereto.

(e)        The Underwriters shall have received on each Applicable Closing Date an opinion of Pillsbury Winthrop Shaw Pittman LLP, counsel for the Underwriters, dated such Applicable Closing Date, in the form and substance agreed upon by such counsel and Morgan Stanley & Co. LLC.

With respect to Section 6(c) and 6(e) above, WSGR and Pillsbury Winthrop Shaw Pittman LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 6(d) above, WSGR may rely upon an opinion or opinions of counsel for any Selling Stockholders and, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of each Selling Stockholder contained herein and in the Custody Agreement and Power of Attorney of such Selling Stockholder and in other documents and instruments; provided that (A) each such counsel for the Selling Stockholders is satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance satisfactory to your counsel, (C) copies of such Custody Agreements and Powers of Attorney and of any such other documents and instruments shall be delivered to you and shall be in form and substance satisfactory to your counsel and (D) WSGR shall state in their opinion that they are justified in relying on each such other opinion.

The opinions of WSGR described in Sections 6(c) and 6(d) (and any opinions of counsel for any Selling Stockholder referred to in the immediately preceding paragraph) shall be rendered to the Underwriters at the request of the Company or one or more of the Selling Stockholders, as the case may be, and shall so state therein.

(f)        The Underwriters shall have received, on each of the date hereof and each Applicable Closing Date, a letter dated the date hereof or such Applicable Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration

 

18


Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on each Applicable Closing Date shall use a “cut-off date” not earlier than three days prior to such Applicable Closing Date.

(g)        The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain stockholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on each Applicable Closing Date.

(h)        The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.

(i)         The chief financial officer of the Company shall have delivered to the Underwriters on each of the date hereof and the Closing Date a certificate in a form reasonably acceptable to Morgan Stanley & Co. LLC.

7.           Covenants of the Company . The Company covenants with each Underwriter as follows:

(a)        To furnish to you, without charge, four signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to you in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 7(e) or 7(f) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.

(b)        Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.

(c)        To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.

(d)        Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d)

 

19


under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.

(e)        If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.

(f)        If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.

(g)        To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction or (ii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.

 

20


(h)        To make generally available to the Company’s security holders and to you as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.

(i)         If any Seller is not a U.S. person for U.S. federal income tax purposes, the Company will deliver to each Underwriter (or its agent), on or before the Closing Date, (i) a certificate with respect to the Company’s status as a “United States real property holding corporation,” dated not more than thirty (30) days prior to the Closing Date, as described in Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), and (ii) proof of delivery to the IRS of the required notice, as described in Treasury Regulations Section 1.897-2(h)(2).

(j)         The Company will promptly notify Morgan Stanley & Co. LLC if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities Act and (b) completion of the Restricted Period referred to in Section 3.

(k)        If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify Morgan Stanley & Co. LLC and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.

8.           Covenants of the Sellers .  Each Seller, severally and not jointly, covenants with each Underwriter as follows:

(a)        Each Seller will deliver to each Underwriter (or its agent), prior to or at the Closing Date, a properly completed and executed Internal Revenue Service (“ IRS ”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such form.

9.           Expenses .  Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Sellers agree to pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel, the Company’s accountants and counsel for the Selling Stockholders (unless such Selling Stockholder has retained and paid for its own counsel) in connection with

 

21


the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the reasonable, documented cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 7(g) hereof, including filing fees and the reasonable, documented fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable, documented fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by FINRA (provided that the amount payable by the Company with respect to fees and disbursements of counsel for the Underwriters incurred pursuant to subsections (iii) and (iv) shall not exceed $30,000), (v) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to listing the Shares on [the NYSE/NYSE MKT/The NASDAQ Global Market] and other national securities exchanges and foreign stock exchanges, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and 50% of the cost of any aircraft chartered in connection with the road show (with the other 50% of such aircraft costs to be borne by the Underwriters), (ix) the document production charges and expenses associated with printing this Agreement, and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 11 entitled “Indemnity and Contribution”, the last paragraph of Section 13 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make and travel and lodging expenses incurred by them in connection with any road show.

The provisions of this Section shall not supersede or otherwise affect any agreement that the Sellers may otherwise have for the allocation of such expenses among themselves.

 

22


10.         Covenants of the Underwriters .  Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.

11.         Indemnity and Contribution .  (a) The Company agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any “road show” as defined in Rule 433(h) under the Securities Act (a “ road show ”), or the Prospectus or any amendment or supplement thereto, or any Written Testing-the-Waters Communication or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.

(b)        Each Selling Stockholder agrees, severally and not jointly, to indemnify and hold harmless (i) each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, and (ii) the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show, or the Prospectus or any amendment or supplement thereto, or any Written Testing-the-Waters Communication or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (i) except

 

23


insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein and (ii) only to the extent such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with the Selling Stockholder Information provided by and relating to such Selling Stockholder.

(c)        Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, or the Prospectus or any amendment or supplement thereto.

(d)        In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 11(a), Section 11(b) or Section 11(c), such person (the “ indemnified party ”) shall promptly notify the person against whom such indemnity may be sought (the “ indemnifying party ”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonably incurred and documented fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in writing to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel

 

24


would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Stockholders and all persons, if any, who control any Selling Stockholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by Morgan Stanley & Co. LLC. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Stockholders and such control persons of any Selling Stockholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Stockholders under the Powers of Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (y) does not contain any statement as to or any admission of fault, culpability or failure to act by or on behalf of any indemnified party.

(e)        To the extent the indemnification provided for in Section 11(a), Section 11(b) or Section 11(c) is unavailable to an indemnified party or

 

25


insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 11(e)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 11(e)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Sellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 11 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint.

(f)        The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 11 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 11(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 11(e) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 11 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

 

26


(g)        The indemnity and contribution provisions contained in this Section 11 and the representations, warranties and other statements of the Company and the Selling Stockholders contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Stockholder or any person controlling any Selling Stockholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.

(h)        Notwithstanding anything to the contrary in this Agreement, the liability of each Selling Stockholder under the indemnity and contribution agreements contain in this Section 11, shall be limited in the aggregate to an amount equal to the aggregate Public Offering Price of the Shares sold by such Selling Stockholder (after deducting underwriting discounts and commissions but before expenses) under this Agreement.

12.         Termination .  The Underwriters may terminate this Agreement by notice given by you to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange or The NASDAQ Global Market, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets, or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.

13.         Effectiveness; Defaulting Underwriters . This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite their respective names in Schedule II bears to the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to

 

27


purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 13 by an amount in excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to you, the Company and the Selling Stockholders for the purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter, the Company or the Selling Stockholders. In any such case either you or the relevant Sellers shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.

If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of any Seller to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason any Seller shall be unable to perform its obligations under this Agreement, the Sellers will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.

14.         Entire Agreement .  (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other, with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.

(b)        The Company acknowledges that in connection with the offering of the Shares: (i) the Underwriters have acted at arms-length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this

 

28


Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Shares.

15.         Counterparts .  This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

16.         Applicable Law .  This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.

17.         Headings .  The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.

18.         Notices .  All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to you at Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department; if to the Company shall be delivered, mailed or sent to 3 West Plumeria Drive, San Jose, California 95134 and if to the Selling Stockholders shall be delivered, mailed or sent to [address].

 

29


Very truly yours,
A10 Networks, Inc.
By:    

 

  Name:
  Title:

 

30


The Selling Stockholders named in Schedule I
hereto, acting severally

By:    

 

  Attorney-in Fact

Accepted as of the date hereof

Morgan Stanley & Co. LLC

Merrill Lynch, Pierce, Fenner & Smith

   Incorporated

J.P. Morgan Securities LLC

RBC Capital Markets, LLC

Acting severally on behalf of themselves and the

several Underwriters named in Schedule II hereto

 

By:   Morgan Stanley & Co. LLC
By:      

 

  Name:
  Title:
By:  

Merrill Lynch, Pierce, Fenner & Smith

     Incorporated

By:      

 

  Name:
  Title:
By:   J.P. Morgan Securities LLC
By:      

 

  Name:
  Title:

 

31


By:   RBC Capital Markets, LLC
By:    

 

  Name:
  Title:

 

32


SCHEDULE I

 

Selling Stockholder

      Number of Firm Shares    
To Be Sold

[NAMES OF SELLING STOCKHOLDERS]

 
 
 
 
 
 
 
 
 

 

Total:

 
 

 

 

I-1


SCHEDULE II

 

Underwriter

       Number of Firm Shares    
To Be Purchased

Morgan Stanley & Co. LLC

  

Merrill Lynch, Pierce Fenner & Smith

                     Incorporated

  

J.P. Morgan Securities LLC

  

RBC Capital Markets, LLC

  

Pacific Crest Securities LLC

  

Oppenheimer & Co. Inc.

  

Total:

  
  

 

 

II-1


SCHEDULE III

Time of Sale Prospectus

 

1. Preliminary Prospectus issued [date]  

 

2. [all free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act]  

 

3. [free writing prospectus containing a description of terms that does not reflect final terms, if the Time of Sale Prospectus does not include a final term sheet]  

 

4. [orally communicated pricing information such as price per share and size of offering if a Rule 134 pricing term sheet is used at the time of sale instead of a pricing term sheet filed by the Company under Rule 433(d) as a free writing prospectus]  

 

III-1


SCHEDULE IV

 

III-2


EXHIBIT A

[FORM OF LOCK-UP LETTER]

                          , 20     

Morgan Stanley & Co. LLC

Merrill Lynch, Pierce, Fenner & Smith

                    Incorporated

J.P. Morgan Securities LLC

RBC Capital Markets, LLC

c/o Morgan Stanley & Co. LLC

      1585 Broadway

      New York, NY 10036

Ladies and Gentlemen:

The undersigned understands that Morgan Stanley & Co. LLC (“ Morgan Stanley ”), Merrill Lynch, Pierce Fenner & Smith Incorporated (“ Merrill ”), J.P. Morgan Securities LLC (“ J.P. Morgan ”) and RBC Capital Markets, LLC (“ RBC Capital ”) propose to enter into an Underwriting Agreement (the “ Underwriting Agreement ”) with A10 Networks, Inc., a California corporation together with any successor entities (the “ Company ”), and certain selling stockholders of the Company named in the Underwriting Agreement, if any, providing for the public offering (the “ Public Offering ”) by the several Underwriters, including Morgan Stanley, Merrill, J.P. Morgan and RBC Capital (the “ Underwriters ”), of shares (the “ Shares ”) of the common stock of the Company (the “ Common Stock ”).

To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus (the “ Restricted Period )” relating to the Public Offering (the “ Prospectus ”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to:

(a)        transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion of the Public Offering, provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of Common Stock or other securities acquired in such open market transactions;

 

A-1


(b)        the transfer of shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (i) to the spouse, domestic partner, parent, sibling, child or grandchild of the undersigned or any other person with whom the undersigned has a relationship by blood, marriage or adoption not more remote than first cousin (each, an “ immediate family member ”) or to a trust, or other entity formed for estate planning purposes, formed for the benefit of the undersigned or of an immediate family member of the undersigned , (ii) by bona fide gift, will or intestacy, (iii) if the undersigned is a corporation, partnership, limited liability company or other business entity (A) to another corporation, partnership, limited liability company or other business entity that controls, is controlled by or is under common control with the undersigned or (B) as part of a disposition, transfer or distribution by the undersigned to its equity holders or (iv) if the undersigned is a trust, to a trustor or beneficiary of the trust; provided that in the case of any transfer or distribution pursuant to this clause (b), (i) each transferee, donee or distributee shall sign and deliver a lock-up agreement substantially in the form of this agreement prior to or upon such transfer or distribution, and (ii) no filing under Section 16(a) of the Exchange Act, reporting a reduction of beneficial ownership of Shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period in connection with such transfer or distribution;

(c)        the receipt by the undersigned from the Company of shares of Common Stock upon the vesting of restricted stock awards issued pursuant to the Company’s equity incentive plans or the transfer of shares of Common Stock or any securities convertible into Common Stock to the Company upon a vesting event of the Company’s securities or upon the exercise of options or warrants to purchase the Company’s securities, in each case on a “cashless” or “net exercise” basis or to cover tax withholding obligations of the undersigned in connection with such vesting or exercise, provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made during the Restricted Period;

(d)        the disposition of shares of Common Stock to the Company solely in connection with the payment of taxes due with respect to the vesting of restricted stock awards issued pursuant to the Company’s equity incentive plans, which plans are in each case described in the Registration Statement, provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made during the Restricted Period in connection with such disposition;

(e)        the transfer of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to the Company, pursuant to agreements under which the Company has the option to repurchase such shares or securities or a right of first refusal with respect to transfers of such shares or securities, provided that no filing

 

A-2


under Section 16(a) of the Exchange Act, reporting a reduction of beneficial ownership of Shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period;

(f)        the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that such plan does not provide for the transfer of Common Stock during the Restricted Period and no public announcement or filing under the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made by or on behalf of the undersigned or the Company;

(g)        the conversion of the outstanding preferred stock of the Company into shares of Common Stock of the Company, provided that such shares of Common Stock remain subject to the terms of this letter;

(h)        if the undersigned is an individual, the transfer of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock that occurs by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, provided that the undersigned shall use its reasonable best efforts to cause the transferee to sign and deliver a lock-up agreement substantially in the form of this agreement prior to such transfer, and provided further, that any filing under Section 16(a) of the Exchange Act that is required to be made during the Restricted Period as a result of such transfer, states that such transfer has occurred by operation of law; or

(i)         the sale and transfer of shares of Common Stock by the undersigned to the Underwriters in the Public Offering pursuant to the terms of the Underwriting Agreement.

In addition, the undersigned agrees that, without the prior written consent of Morgan Stanley, on behalf of the Underwriters, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.

If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed Shares the undersigned may purchase in the offering.

If the undersigned is an officer or director of the Company, (i) Morgan Stanley agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, Morgan Stanley will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release

 

A-3


or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by Morgan Stanley hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.

The undersigned understands that the Company and the Underwriters are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.

Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.

This agreement shall automatically terminate upon the earlier to occur of: (i) the date the Company provides the Underwriters with written notice that it does not intend to proceed with the Public Offering, but only in the event such notice is given prior to the execution of the Underwriting Agreement; (ii) the termination of the Underwriting Agreement before the sale of any Common Stock to the Underwriters, or (iii) September 30, 2014, if the Underwriting Agreement has not been executed by that date.

 

Very truly yours,

 

(Name)

 

(Address)

 

A-4


EXHIBIT B

FORM OF WAIVER OF LOCK-UP

                          , 20     

[Name and Address of

Officer or Director

Requesting Waiver]

Dear Mr./Ms. [Name]:

This letter is being delivered to you in connection with the offering by A10 Networks, Inc. (the “ Company ”) of            shares of common stock, $      par value (the “ Common Stock ”), of the Company and the lock-up letter dated          , 20      (the “ Lock-up Letter ”), executed by you in connection with such offering, and your request for a [waiver] [release] dated          , 20      , with respect to          shares of Common Stock (the “ Shares ”).

Morgan Stanley & Co. LLC hereby agrees to [waive] [release] the transfer restrictions set forth in the Lock-up Letter, but only with respect to the Shares, effective          , 20      ; provided, however, that such [waiver] [release] is conditioned on the Company announcing the impending [waiver] [release] by press release through a major news service at least two business days before effectiveness of such [waiver] [release]. This letter will serve as notice to the Company of the impending [waiver] [release].

Except as expressly [waived] [released] hereby, the Lock-up Letter shall remain in full force and effect.

 

Very truly yours,
Morgan Stanley & Co. LLC

 

B -1


Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto
By:  

 

  Name:
  Title:

cc:  Company

 

B-2


FORM OF PRESS RELEASE

A10 Networks, Inc.

[Date]

A10 Networks, Inc. (the “ Company ”) announced today that Morgan Stanley & Co. LLC, the lead book-running manager in the Company’s recent public sale of            shares of common stock is [waiving][releasing] a lock-up restriction with respect to          shares of the Company’s common stock held by [certain officers or directors] [an officer or director] of the Company. The [waiver][release] will take effect on          , 20      , and the shares may be sold on or after such date.

This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.

 

B-3


ANNEX I

 

I-1

Exhibit 3.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION OF

A10 NETWORKS, INC.

A10 Networks, Inc., a corporation organized and existing under the laws of the State of Delaware (the “ Corporation ”), certifies that:

A. The name of the Corporation is A10 Networks, Inc.

The Corporation’s Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on [    ], 2014.

B. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of Delaware, and restates, integrates and further amends the provisions of the Corporation’s Restated Certificate.

C. This Amended and Restated Certificate of Incorporation was duly approved by the stockholders of the Corporation in accordance with Section 228 of the General Corporation Law of Delaware.

D. The text of the Corporation’s Restated Certificate is amended and restated to read as set forth in EXHIBIT A attached hereto.


IN WITNESS WHEREOF, A10 Networks, Inc. has caused this Amended and Restated Certificate of Incorporation to be signed by Lee Chen, a duly authorized officer of the Corporation, on             , 2014.

 

 

Lee Chen, President


EXHIBIT A

ARTICLE I

The name of the Corporation is A10 Networks, Inc.

ARTICLE II

The purpose of this Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware (the “DGCL”).

ARTICLE III

The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE IV

4.1 Authorized Capital Stock . The total number of shares of all classes of capital stock that the Corporation is authorized to issue is 600,000,000 shares, consisting of 500,000,000 shares of Common Stock, having a par value of $0.00001 (the “ Common Stock ”), and 100,000,000 shares of Preferred Stock, having a par value of $0.00001 (the “ Preferred Stock ”).

4.2 Increase or Decrease in Authorized Capital Stock . The number of authorized shares of Preferred Stock or Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote generally in the election of directors, irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), voting together as a single class, without a separate vote of the holders of the class or classes the number of authorized shares of which are being increased or decreased.

4.3 Common Stock .

(a) The holders of shares of Common Stock shall be entitled to one vote for each such share on each matter on which the holders of shares of Common Stock are entitled to vote. Except as otherwise required by law or this certificate of incorporation (this “ Certificate of Incorporation ” which term, as used herein, shall mean the certificate of incorporation of the Corporation, as amended from time to time, including the terms of any certificate of designations of any series of Preferred Stock), and subject to the rights of the holders of Preferred Stock, at any annual or special meeting of the stockholders the holders of shares of Common Stock shall have the right to vote for the election of directors and on all other matters submitted to a vote of the stockholders; provided, however, that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation that relates solely to the terms, number of shares, powers, designations, preferences, or relative participating, optional or other special rights (including, without limitation, voting rights), or to qualifications, limitations or restrictions thereon, of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one more other such series, to vote thereon

 

-1-


pursuant to this Certificate of Incorporation (including, without limitation, by any certificate of designations relating to any series of Preferred Stock) or pursuant to the DGCL.

(b) Subject to the rights of the holders of Preferred Stock, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board of Directors from time to time out of any assets or funds of the Corporation legally available therefor and shall share equally on a per share basis in such dividends and distributions.

(c) In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, and subject to the rights of the holders of Preferred Stock in respect thereof, the holders of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by them.

4.4 Preferred Stock .

(a) The Preferred Stock may be issued from time to time in one or more series pursuant to a resolution or resolutions providing for such issue duly adopted by the Board of Directors (authority to do so being hereby expressly vested in the Board of Directors). The Board of Directors is further authorized, subject to limitations prescribed by law, to fix by resolution or resolutions and to set forth in a certification of designations filed pursuant to the DGCL the powers, designations, preferences and relative, participation, optional or other rights, if any, and the qualifications, limitations or restrictions thereof, if any, of any wholly unissued series of Preferred Stock, including without limitation authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of any such series, and the number of shares constituting any such series and the designation thereof, or any of the foregoing.

(b) The Board of Directors is further authorized to increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares of any such series then outstanding) the number of shares of any series, the number of which was fixed by it, subsequent to the issuance of shares of such series then outstanding, subject to the powers, preferences and rights, and the qualifications, limitations and restrictions thereof stated in the Certificate of Incorporation or the resolution of the Board of Directors originally fixing the number of shares of such series. If the number of shares of any series is so decreased, then the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.

ARTICLE V

5.1 General Powers . The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

5.2 Number of Directors; Election; Term .

(a) Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, the number of directors that constitutes the entire Board of Directors of the

 

-2-


Corporation shall be fixed solely by resolution of the majority of the Whole Board. For purposes of this Certificate of Incorporation, the term “ Whole Board ” will mean the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships.

(b) Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, effective upon the closing date (the “ Effective Date ”) of the initial sale of shares of common stock in the Corporation’s initial public offering pursuant to an effective registration statement filed under the Securities Act of 1933, as amended, the directors of the Corporation shall be divided into three classes as nearly equal in size as is practicable, hereby designated Class I, Class II and Class III. The initial assignment of members of the Board of Directors to each such class shall be made by the Board of Directors. The term of office of the initial Class I directors shall expire at the first regularly-scheduled annual meeting of the stockholders following the Effective Date, the term of office of the initial Class II directors shall expire at the second annual meeting of the stockholders following the Effective Date and the term of office of the initial Class III directors shall expire at the third annual meeting of the stockholders following the Effective Date. At each annual meeting of stockholders, commencing with the first regularly-scheduled annual meeting of stockholders following the Effective Date, each of the successors elected to replace the directors of a Class whose term shall have expired at such annual meeting shall be elected to hold office until the third annual meeting next succeeding his or her election and until his or her respective successor shall have been duly elected and qualified. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, if the number of directors that constitutes the Board of Directors is changed, any newly created directorships or decrease in directorships shall be so apportioned by the Board of Directors among the classes as to make all classes as nearly equal in number as is practicable, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

(c) Notwithstanding the foregoing provisions of this Section 5.2, and subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, each director shall serve until his or her successor is duly elected and qualified or until his or her earlier death, resignation, or removal.

(d) Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

5.3 Removal . Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, a director may be removed from office by the stockholders of the Corporation only for cause and only by the affirmative vote of the holders of at least 66  2 3 % in voting power of the stock of the Corporation entitled to vote thereon.

5.4 Vacancies and Newly Created Directorships . Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, and except as otherwise provided in the DGCL, vacancies occurring on the Board of Directors for any reason and newly created directorships resulting from an increase in the authorized number of directors may be filled only by vote of a majority of the remaining members of the Board of Directors, although less than a quorum, or by a sole remaining director, at any meeting of the Board of Directors. A person so elected by the Board of Directors to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been assigned by the Board of Directors and until his or her successor shall be duly elected and qualified.

 

-3-


ARTICLE VI

In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the Corporation is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation by the affirmative vote of a majority of the Whole Board. Notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any series of Preferred Stock required by law, by this Certificate of Incorporation or by any Preferred Stock Designation, the affirmative vote of the holders of at least 66 2/3% of the voting power of the stock of the Corporation entitled to vote thereon shall be required for the stockholders of the Corporation to amend, alter or repeal the Bylaws or adopt new Bylaws.

ARTICLE VII

7.1 No Action by Written Consent of Stockholders . Except as otherwise expressly provided by the terms of any series of Preferred Stock permitting the holders of such series of Preferred Stock to act by written consent, any action required or permitted to be taken by stockholders of the Corporation must be effected at a duly called annual or special meeting of the stockholders and may not be effected by written consent in lieu of a meeting.

7.2 Special Meetings . Except as otherwise expressly provided by the terms of any series of Preferred Stock permitting the holders of such series of Preferred Stock to call a special meeting of the holders of such series, special meetings of stockholders of the Corporation may be called only by the affirmative vote of a majority of the Whole Board, the chairperson of the Board of Directors, the chief executive officer or the president (in the absence of a chief executive officer), and the ability of the stockholders to call a special meeting is hereby specifically denied. The Board of Directors, by the affirmative vote of a majority of the Whole Board, may cancel, postpone or reschedule any previously scheduled special meeting at any time, before or after the notice for such meeting has been sent to the stockholders.

7.3 Advance Notice . Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws of the Corporation.

ARTICLE VIII

8.1 Limitation of Personal Liability . To the fullest extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

8.2 Indemnification .

The Corporation shall indemnify, to the fullest extent permitted by applicable law, any director or officer of the Corporation who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a

 

-4-


Proceeding ”) by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding. The Corporation shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized by the Board.

The Corporation shall have the power to indemnify, to the extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, any employee or agent of the Corporation who was or is a party or is threatened to be made a party to any Proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.

Any repeal or amendment of this Article VIII by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Certificate of Incorporation inconsistent with this Article VIII will, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to further limit or eliminate the liability of directors) and shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or amendment or adoption of such inconsistent provision with respect to acts or omissions occurring prior to such repeal or amendment or adoption of such inconsistent provision.

ARTICLE IX

To the maximum extent permitted from time to time under the law of the State of Delaware, the Corporation renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any Excluded Opportunity. An “ Excluded Opportunity ” is any business opportunity, matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes into the possession of, any director or officer of the Corporation who is not an employee of the Corporation or any of its subsidiaries (a “ Covered Person ”), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a director or officers of the Corporation.

ARTICLE X

If any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (ii) to the fullest extent possible, the provisions of this Certificate of Incorporation (including, without limitation, each such portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors,

 

-5-


officers, employees and agents from personal liability in respect of their good faith service or for the benefit of the Corporation to the fullest extent permitted by law.

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation (including any rights, preferences or other designations of Preferred Stock), in the manner now or hereafter prescribed by this Certificate of Incorporation and the DGCL; and all rights, preferences and privileges herein conferred upon stockholders by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article IX. Notwithstanding any other provision of this Certificate of Incorporation, and in addition to any other vote that may be required by law or the terms of any series of Preferred Stock, the affirmative vote of the holders of at least 66  2 3 % of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter or repeal, or adopt any provision as part of this Certificate of Incorporation inconsistent with the purpose and intent of, Article V, Article VI, Article VII, Article VIII, Article IX or this Article X (including, without limitation, any such Article as renumbered as a result of any amendment, alteration, change, repeal or adoption of any other Article).

 

-6-

Exhibit 3.2

AMENDED AND RESTATED BYLAWS OF

A10 NETWORKS, INC.

Adopted [            ], 2014


TABLE OF CONTENTS

 

          Page  

ARTICLE I — CORPORATE OFFICES

     1   

1.1

  

REGISTERED OFFICE

     1   

1.2

  

OTHER OFFICES

     1   

ARTICLE II — MEETINGS OF STOCKHOLDERS

     1   

2.1

  

PLACE OF MEETINGS

     1   

2.2

  

ANNUAL MEETING

     1   

2.3

  

SPECIAL MEETING

     1   

2.4

  

ADVANCE NOTICE PROCEDURES

     2   

2.5

  

NOTICE OF STOCKHOLDERS’ MEETINGS

     6   

2.6

  

QUORUM

     6   

2.7

  

ADJOURNED MEETING; NOTICE

     6   

2.8

  

CONDUCT OF BUSINESS

     7   

2.9

  

VOTING

     7   

2.10

  

STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING

     7   

2.11

  

RECORD DATES

     7   

2.12

  

PROXIES

     8   

2.13

  

LIST OF STOCKHOLDERS ENTITLED TO VOTE

     8   

2.14

  

INSPECTORS OF ELECTION

     9   

ARTICLE III — DIRECTORS

     9   

3.1

  

POWERS

     9   

3.2

  

NUMBER OF DIRECTORS

     9   

3.3

  

ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS

     9   

3.4

  

RESIGNATION AND VACANCIES

     10   

3.5

  

PLACE OF MEETINGS; MEETINGS BY TELEPHONE

     10   

3.6

  

REGULAR MEETINGS

     10   

3.7

  

SPECIAL MEETINGS; NOTICE

     11   

3.8

  

QUORUM; VOTING

     11   

3.9

  

BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING

     11   

3.10

  

FEES AND COMPENSATION OF DIRECTORS

     12   

3.11

  

REMOVAL OF DIRECTORS

     12   

ARTICLE IV — COMMITTEES

     12   

4.1

  

COMMITTEES OF DIRECTORS

     12   

4.2

  

COMMITTEE MINUTES

     12   

4.3

  

MEETINGS AND ACTION OF COMMITTEES

     12   

4.4

  

SUBCOMMITTEES

     13   

ARTICLE V — OFFICERS

     13   

5.1

  

OFFICERS

     13   

5.2

  

APPOINTMENT OF OFFICERS

     13   

5.3

  

SUBORDINATE OFFICERS

     13   

5.4

  

REMOVAL AND RESIGNATION OF OFFICERS

     14   

 

-i-


TABLE OF CONTENTS

(continued)

 

          Page  

5.5

  

VACANCIES IN OFFICES

     14   

5.6

  

REPRESENTATION OF SHARES OF OTHER CORPORATIONS

     14   

5.7

  

AUTHORITY AND DUTIES OF OFFICERS

     14   

5.8

  

THE CHAIRPERSON OF THE BOARD

     14   

5.9

  

THE VICE CHAIRPERSON OF THE BOARD

     15   

5.10

  

THE CHIEF EXECUTIVE OFFICER

     15   

5.11

  

THE PRESIDENT

     15   

5.12

  

THE VICE PRESIDENTS AND ASSISTANT VICE PRESIDENTS

     15   

5.13

  

THE SECRETARY AND ASSISTANT SECRETARIES

     15   

5.14

  

THE CHIEF FINANCIAL OFFICER AND ASSISTANT TREASURERS

     16   

ARTICLE VI — STOCK

     16   

6.1

  

STOCK CERTIFICATES; PARTLY PAID SHARES

     16   

6.2

  

SPECIAL DESIGNATION ON CERTIFICATES

     16   

6.3

  

LOST, STOLEN OR DESTROYED CERTIFICATES

     17   

6.4

  

DIVIDENDS

     17   

6.5

  

TRANSFER OF STOCK

     17   

6.6

  

STOCK TRANSFER AGREEMENTS

     18   

6.7

  

REGISTERED STOCKHOLDERS

     18   

ARTICLE VII — MANNER OF GIVING NOTICE AND WAIVER

     18   

7.1

  

NOTICE OF STOCKHOLDERS’ MEETINGS

     18   

7.2

  

NOTICE BY ELECTRONIC TRANSMISSION

     18   

7.3

  

NOTICE TO STOCKHOLDERS SHARING AN ADDRESS

     19   

7.4

  

NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL

     19   

7.5

  

WAIVER OF NOTICE

     19   

ARTICLE VIII — INDEMNIFICATION

     20   

8.1

  

INDEMNIFICATION OF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS

     20   

8.2

  

INDEMNIFICATION OF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE RIGHT OF THE CORPORATION

     20   

8.3

  

SUCCESSFUL DEFENSE

     21   

8.4

  

INDEMNIFICATION OF OTHERS; ADVANCE PAYMENT TO OTHERS

     21   

8.5

  

ADVANCE PAYMENT OF EXPENSES

     21   

8.6

  

LIMITATION ON INDEMNIFICATION

     21   

8.7

  

DETERMINATION; CLAIM

     22   

8.8

  

NON-EXCLUSIVITY OF RIGHTS

     22   

8.9

  

INSURANCE

     22   

8.10

  

SURVIVAL

     23   

8.11

  

EFFECT OF REPEAL OR MODIFICATION

     23   

8.12

  

CERTAIN DEFINITIONS

     23   

ARTICLE IX — GENERAL MATTERS

     23   

9.1

  

EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS

     23   

 

-ii-


TABLE OF CONTENTS

(continued)

 

          Page  

9.2

  

FISCAL YEAR

     23   

9.3

  

SEAL

     24   

9.4

  

CONSTRUCTION; DEFINITIONS

     24   

ARTICLE X — AMENDMENTS

     24   

 

-iii-


BYLAWS

ARTICLE I — CORPORATE OFFICES

1.1 REGISTERED OFFICE

The registered office of A10 Networks, Inc. shall be fixed in the corporation’s certificate of incorporation. References in these bylaws to the certificate of incorporation shall mean the certificate of incorporation of the corporation, as amended from time to time, including the terms of any certificate of designations of any series of Preferred Stock.

1.2 OTHER OFFICES

The corporation’s board of directors may at any time establish other offices at any place or places where the corporation is qualified to do business.

ARTICLE II — MEETINGS OF STOCKHOLDERS

2.1 PLACE OF MEETINGS

Meetings of stockholders shall be held at any place, within or outside the State of Delaware, designated by the board of directors. The board of directors may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “ DGCL ”). In the absence of any such designation or determination, stockholders’ meetings shall be held at the corporation’s then-principal executive office.

2.2 ANNUAL MEETING

The annual meeting of stockholders shall be held on such date, at such time, and at such place (if any) within or without the State of Delaware, as the board of directors shall designate from time to time and stated in the corporation’s notice of the meeting. At the annual meeting, directors shall be elected and any other proper business, brought in accordance with Section 2.4 of these bylaws, may be transacted.

2.3 SPECIAL MEETING

(i) A special meeting of the stockholders, other than those required by statute, may be called at any time only by (A) the affirmative vote of a majority of the Whole Board, (B) the chairperson of the board of directors, (C) the chief executive officer, or (D) the president (in the absence of a chief executive officer). A special meeting of the stockholders may not be called by any other person or persons. The board of directors, by the affirmative vote of a majority of the Whole Board, may cancel, postpone or reschedule any previously scheduled special meeting at any time, before or after the notice for such meeting has been sent to the stockholders. For purposes of these Bylaws, the term “ Whole Board ” will mean the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships.

(ii) The notice of a special meeting shall include the purpose for which the meeting is called. Only such business shall be conducted at a special meeting of stockholders as shall have been brought


before the meeting by or at the direction of the board of directors acting by the affirmative vote of a majority of the Whole Board, the chairperson of the board of directors, the chief executive officer or the president (in the absence of a chief executive officer).

2.4 ADVANCE NOTICE PROCEDURES

(i) Advance Notice of Stockholder Business at Annual Meeting. At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be brought: (A) pursuant to the corporation’s proxy materials with respect to such meeting, (B) by or at the direction of the board of directors, or (C) by a stockholder who (1) is a stockholder of record at the time of the giving of the notice required by this Section 2.4(i) and on the record date for the determination of stockholders entitled to vote at the annual meeting and (2) has timely complied in proper written form with the notice procedures set forth in this Section 2.4(i). In addition, for business to be properly brought by a stockholder before an annual meeting, such business must be a proper matter for stockholder action pursuant to these bylaws and applicable law. Except for proposals properly made in accordance with Rule 14a-8 under the Securities and Exchange Act of 1934, and the rules and regulations thereunder (as so amended and inclusive of such rules and regulations), clause (C) above shall be the exclusive means for a stockholder to bring business before an annual meeting of stockholders.

(a) To comply with clause (C) of Section 2.4(i), above, a stockholder’s notice must set forth all information required under this Section 2.4(i) and must be timely received by the secretary of the corporation. To be timely, a stockholder’s notice must be received by the secretary at the principal executive offices of the corporation not later than the 45th day nor earlier than the 75th day before the one-year anniversary of the date on which the corporation first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier) for the preceding year’s annual meeting; provided , however , that in the event that no annual meeting was held in the previous year or if the date of the annual meeting is advanced by more than 30 days prior to or delayed by more than 30 days after the one-year anniversary of the date of the previous year’s annual meeting, then, for notice by the stockholder to be timely, it must be so received by the secretary not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of (i) the 90th day prior to such annual meeting, or (ii) the tenth day following the day on which Public Announcement (as defined below) of the date of such annual meeting is first made. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described in this Section 2.4(i)(a). “ Public Announcement ” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or any successor thereto (the “ 1934 Act ”).

(b) To be in proper written form, a stockholder’s notice to the secretary must set forth as to each matter of business the stockholder intends to bring before the annual meeting: (1) a brief description of the business intended to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (2) the name and address, as they appear on the corporation’s books, of the stockholder proposing such business and any Stockholder Associated Person (as defined below), (3) the class and number of shares of the corporation that are held of record or are beneficially owned by the stockholder or any Stockholder Associated Person and any derivative positions held or beneficially held by the stockholder or any Stockholder Associated Person as of the date of delivery of such notice, (4) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of such stockholder or any Stockholder Associated Person with respect to any securities of the

 

-2-


corporation, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such stockholder or any Stockholder Associated Person with respect to any securities of the corporation, (5) any material interest of the stockholder or a Stockholder Associated Person in such business, and (6) a statement whether either such stockholder or any Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of at least the percentage of the voting power of the corporation’s voting shares required under applicable law to carry the proposal (such information provided and statements made as required by clauses (1) through (6), a “ Business Solicitation Statement ”). In addition, to be in proper written form, a stockholder’s notice to the secretary must be supplemented not later than ten days following the record date for notice of the meeting to disclose the information contained in clauses (3) and (4) above as of the record date for notice of the meeting. For purposes of this Section 2.4, a “ Stockholder Associated Person ” of any stockholder shall mean (i) any person controlling, directly or indirectly, or acting in concert with, such stockholder, (ii) any beneficial owner of shares of stock of the corporation owned of record or beneficially by such stockholder and on whose behalf the proposal or nomination, as the case may be, is being made, or (iii) any person controlling, controlled by or under common control with such person referred to in the preceding clauses (i) and (ii).

(c) Without exception, no business shall be conducted at any annual meeting except in accordance with the provisions set forth in this Section 2.4(i) and, if applicable, Section 2.4(ii). In addition, business proposed to be brought by a stockholder may not be brought before the annual meeting if such stockholder or a Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Business Solicitation Statement applicable to such business or if the Business Solicitation Statement applicable to such business contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. The chairperson of the annual meeting shall, if the facts warrant, determine and declare at the annual meeting that business was not properly brought before the annual meeting and in accordance with the provisions of this Section 2.4(i), and, if the chairperson should so determine, he or she shall so declare at the annual meeting that any such business not properly brought before the annual meeting shall not be conducted.

(ii) Advance Notice of Director Nominations at Annual Meetings. Notwithstanding anything in these bylaws to the contrary, only persons who are nominated in accordance with the procedures set forth in this Section 2.4(ii) shall be eligible for election or re-election as directors at an annual meeting of stockholders. Nominations of persons for election or re-election to the board of directors of the corporation shall be made at an annual meeting of stockholders only (A) by or at the direction of the board of directors or (B) by a stockholder who (1) was a stockholder of record at the time of the giving of the notice required by this Section 2.4(ii) and on the record date for the determination of stockholders entitled to vote at the annual meeting and (2) has complied with the notice procedures set forth in this Section 2.4(ii). In addition to any other applicable requirements, for a nomination to be made by a stockholder, the stockholder must have given timely notice thereof in proper written form to the secretary of the corporation.

(a) To comply with clause (B) of Section 2.4(ii) above, a nomination to be made by a stockholder must set forth all information required under this Section 2.4(ii) and must be received by the secretary at the then-principal executive offices of the corporation at the time set forth in, and in accordance with, the final three sentences of Section 2.4(i)(a), above; provided additionally, however, that in the event that the number of directors to be elected to the board of directors is increased and there is no Public Announcement naming all of the nominees for director or specifying the size of the increased board made by the corporation at least ten (10) days before the last day a stockholder may deliver a notice of nomination pursuant to the foregoing provisions, a stockholder’s notice required by this Section 2.4(ii) shall also be

 

-3-


considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received by the secretary at the principal executive offices of the corporation not later than the close of business on the tenth day following the day on which such Public Announcement is first made by the corporation.

(b) To be in proper written form, such stockholder’s notice to the secretary must set forth:

(1) as to each person whom the stockholder proposes to nominate for election or re-election as a director (a “ nominee ”): (A) the name, age, business address and residence address of the nominee, (B) the principal occupation or employment of the nominee, (C) the class and number of shares of the corporation that are held of record or are beneficially owned by the nominee and any derivative positions held or beneficially held by the nominee, (D) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of the nominee with respect to any securities of the corporation, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit of share price changes for, or to increase or decrease the voting power of the nominee, (E) a description of all arrangements or understandings between or among the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder or concerning the nominee’s potential service on the board of directors, (F) a written statement executed by the nominee acknowledging that as a director of the corporation, the nominee will owe fiduciary duties under Delaware law with respect to the corporation and its stockholders, and (G) any other information relating to the nominee that would be required to be disclosed about such nominee if proxies were being solicited for the election or re-election of the nominee as a director, or that is otherwise required, in each case pursuant to Regulation 14A under the 1934 Act (including without limitation the nominee’s written consent to being named in the proxy statement, if any, as a nominee and to serving as a director if elected or re-elected, as the case may be); and

(2) as to such stockholder giving notice, (A) the information required to be provided pursuant to clauses (2) through (5) of Section 2.4(i)(b), above, and the supplement referenced in the second sentence of Section 2.4(i)(b) above (except that the references to “business” in such clauses shall instead refer to nominations of directors for purposes of this paragraph), and (B) a statement whether either such stockholder or Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of at least the percentage of the voting power of the corporation’s voting shares reasonably believed by such stockholder or Stockholder Associated Person to be necessary to elect or re-elect such nominee(s) (such information provided and statements made as required by clauses (A) and (B) above, a “ Nominee Solicitation Statement ”).

(c) At the request of the board of directors, any person nominated by a stockholder for election or re-election as a director must furnish to the secretary (1) that information required to be set forth in the stockholder’s notice of nomination of such person as a director as of a date subsequent to the date on which the notice of such person’s nomination was given and (2) such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as an independent director or audit committee financial expert of the corporation under applicable law, securities exchange rule or regulation, or any publicly disclosed corporate governance guideline or committee charter of the corporation and (3) such other information that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee; in the absence of the furnishing of any such information of the kind specified in this Section 2.4(ii)(c) if requested, such stockholder’s nomination shall not be considered in proper form pursuant to this Section 2.4(ii).

 

-4-


(d) Without exception, no person shall be eligible for election or re-election as a director of the corporation at an annual meeting of stockholders unless nominated in accordance with the provisions set forth in this Section 2.4(ii). In addition, a nominee shall not be eligible for election or re-election if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement applicable to such nominee contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. The chairperson of the annual meeting shall, if the facts warrant, determine and declare at the annual meeting that a nomination was not made in accordance with the provisions prescribed by these bylaws, and if the chairperson should so determine, he or she shall so declare at the annual meeting, and the defective nomination shall be disregarded.

(iii) Advance Notice of Director Nominations for Special Meetings.

(a) For a special meeting of stockholders at which directors are to be elected or re-elected, nominations of persons for election or re-election to the board of directors shall be made only (1) by or at the direction of the board of directors or (2) by any stockholder who (A) is a stockholder of record at the time of the giving of the notice required by this Section 2.4(iii) and on the record date for the determination of stockholders entitled to vote at the special meeting and (B) delivers a timely written notice of the nomination to the secretary that includes the information set forth in Sections 2.4(ii)(b) and (ii)(c) above. To be timely, such notice must be received by the secretary at the then-principal executive offices of the corporation not later than the close of business on the later of the 90th day prior to such special meeting or the tenth day following the day on which Public Announcement is first made of the date of the special meeting and of the nominees proposed by the board of directors to be elected or re-elected at such meeting. A person shall not be eligible for election or re-election as a director at a special meeting unless the person is nominated (i) by or at the direction of the board of directors or (ii) by a stockholder in accordance with the notice procedures set forth in this Section 2.4(iii). In addition, a nominee shall not be eligible for election or re-election if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement applicable to such nominee contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. Any person nominated in accordance with this Section 2.4(iii) is subject to, and must comply with, the provisions of Section 2.4(ii)(c).

(b) The chairperson of the special meeting shall, if the facts warrant, determine and declare at the meeting that a nomination or business was not made in accordance with the procedures prescribed by these bylaws, and if the chairperson should so determine, he or she shall so declare at the meeting, and the defective nomination or business shall be disregarded.

(iv) Other Requirements and Rights. In addition to the foregoing provisions of this Section 2.4, a stockholder must also comply with all applicable requirements of state law and of the 1934 Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.4. Nothing in this Section 2.4 shall be deemed to affect any rights of:

(a) a stockholder to request inclusion of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under the 1934 Act; or

(b) the corporation to omit a proposal from the corporation’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under the 1934 Act.

 

-5-


2.5 NOTICE OF STOCKHOLDERS’ MEETINGS

Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Except as otherwise provided in the DGCL, the certificate of incorporation or these bylaws, the written notice of any meeting of stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting.

2.6 QUORUM

The holders of a majority of the voting power of the stock issued, outstanding and entitled to vote, and present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders, unless otherwise required by law, the certificate of incorporation, these bylaws or the rules of any applicable stock exchange. Where a separate vote by a class or series or classes or series is required, a majority of the voting power of the then-issued and outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter, except as otherwise required by law, the certificate of incorporation, these bylaws or the rules of any applicable stock exchange.

If a quorum is not present or represented at any meeting of the stockholders, then either (i) the chairperson of the meeting, or (ii) the stockholders entitled to vote at the meeting, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. The chairperson of the meeting shall have the authority to adjourn a meeting of the stockholders in all other events. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the original meeting.

2.7 ADJOURNED MEETING; NOTICE

When a meeting is adjourned to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If, after the adjournment, a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the board of directors shall fix a new record date for notice of such adjourned meeting in accordance with Section 213(a) of the DGCL and Section 2.11 of these bylaws, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.

 

-6-


2.8 CONDUCT OF BUSINESS

The chairperson of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of business. The chairperson of any meeting of stockholders shall be designated by the board of directors; in the absence of such designation, the chairperson of the board, if any, the chief executive officer (in the absence of the chairperson) or the president (in the absence of the chairperson of the board and the chief executive officer), or in their absence any other executive officer of the corporation, shall serve as chairperson of the stockholder meeting.

2.9 VOTING

The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.11 of these bylaws, subject to Section 217 (relating to voting rights of fiduciaries, pledgors and joint owners of stock) and Section 218 (relating to voting trusts and other voting agreements) of the DGCL.

Except as may be otherwise provided in the certificate of incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.

Except as otherwise required by law, the certificate of incorporation, these bylaws or the rules of any applicable stock exchange, in all matters other than the election of directors, the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders. Except as otherwise required by law, the certificate of incorporation, these bylaws or the rules of any applicable stock exchange, directors shall be elected by a plurality of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Where a separate vote by a class or series or classes or series is required, in all matters other than the election of directors, the affirmative vote of the majority of the voting power of shares of such class or series or classes or series present in person or represented by proxy at the meeting shall be the act of such class or series or classes or series, except as otherwise provided by law, the certificate of incorporation, these bylaws or the rules of any applicable stock exchange.

2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING

Subject to the rights of the holders of the shares of any series of Preferred Stock or any other class of stock or series thereof that have been expressly granted the right to take action by written consent, any action required or permitted to be taken by the stockholders of the corporation must be effected at a duly called annual or special meeting of stockholders of the corporation and may not be effected by any consent in writing by such stockholders.

2.11 RECORD DATES

In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the board of directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the board of directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination.

 

-7-


If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.

A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the provisions of Section 213 of the DGCL and this Section 2.11 at the adjourned meeting.

In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

2.12 PROXIES

Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. A written proxy may be in the form of a telegram, cablegram, or other means of electronic transmission which sets forth or is submitted with information from which it can be determined that the telegram, cablegram, or other means of electronic transmission was authorized by the stockholder.

2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE

The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting; provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date. The stockholder list shall be arranged in alphabetical order and show the address of each stockholder and the number of shares registered in the name of each stockholder. The corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the corporation’s then-principal place of business. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at a place (as opposed to solely by means of remote communication), then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also

 

-8-


be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Such list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.

2.14 INSPECTORS OF ELECTION

Before any meeting of stockholders, the board of directors shall appoint an inspector or inspectors of election to act at the meeting or its adjournment. The number of inspectors shall be either one (1) or three (3). If any person appointed as inspector fails to appear or fails or refuses to act, then the chairperson of the meeting shall appoint a person to fill that vacancy.

Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed and designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspector or inspectors’ count of all votes and ballots, (vi) determine the result; and (vii) do any other acts that may be proper to conduct the election or vote with fairness to all stockholders.

In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspector or inspectors may consider such information as is permitted by applicable law. If there are three (3) inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein.

ARTICLE III — DIRECTORS

3.1 POWERS

The business and affairs of the corporation shall be managed by or under the direction of the board of directors, except as may be otherwise provided in the DGCL or the certificate of incorporation.

3.2 NUMBER OF DIRECTORS

The board of directors shall consist of one or more members, each of whom shall be a natural person. Unless the certificate of incorporation fixes the number of directors, the number of directors shall be determined from time to time solely by resolution of the board of directors. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.

3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS

Except as provided in Section 3.4 of these bylaws, each director, including a director elected to fill a vacancy, shall hold office until the expiration of the term for which elected and until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws. The certificate of

 

-9-


incorporation or these bylaws may prescribe other qualifications for directors. If so provided in the certificate of incorporation, the directors of the corporation shall be divided into classes.

3.4 RESIGNATION AND VACANCIES

Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation; provided, however , that if such notice is given by electronic transmission, such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the director. A resignation is effective when the resignation is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. Acceptance of such resignation shall not be necessary to make it effective. A resignation which is conditioned upon the director failing to receive a specified vote for reelection as a director may provide that it is irrevocable. Unless otherwise provided in the certificate of incorporation or these bylaws, when one or more directors resign from the board of directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective.

Unless otherwise provided in the certificate of incorporation or these bylaws, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class shall be filled only by a majority of the directors then-in office, although less than a quorum, or by a sole remaining director. If the directors are divided into classes, a person so elected by the directors then in office to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen and until his or her successor shall have been duly elected and qualified.

If, at the time of filling any vacancy or any newly created directorship, the directors then-in office constitute less than a majority of the whole board of directors (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10% of the voting stock at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office as aforesaid, which election shall be governed by the provisions of Section 211 of the DGCL as far as applicable.

3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE

The board of directors may hold meetings, both regular and special, either within or outside the State of Delaware.

Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

3.6 REGULAR MEETINGS

Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board of directors.

 

-10-


3.7 SPECIAL MEETINGS; NOTICE

Special meetings of the board of directors for any purpose or purposes may be called at any time by the chairperson of the board of directors, the chief executive officer, the president, the secretary or a majority of the authorized number of directors, at such times and places as he or she or they shall designate.

Notice of the time and place of special meetings shall be:

(i) delivered personally by hand, by courier or by telephone;

(ii) sent by United States first-class mail, postage prepaid;

(iii) sent by facsimile; or

(iv) sent by electronic mail,

directed to each director at that director’s address, telephone number, facsimile number or electronic mail address, as the case may be, as shown on the corporation’s records.

If the notice is (i) delivered personally by hand, by courier or by telephone, (ii) sent by facsimile or (iii) sent by electronic mail, it shall be delivered or sent at least 24 hours before the time of the holding of the meeting. If the notice is sent by United States mail, it shall be deposited in the United States mail at least four days before the time of the holding of the meeting. Any oral notice may be communicated to the director. The notice need not specify the place of the meeting (if the meeting is to be held at the corporation’s principal executive office) nor the purpose of the meeting.

3.8 QUORUM; VOTING

At all meetings of the board of directors, a majority of the total authorized number of directors shall constitute a quorum for the transaction of business. If a quorum is not present at any meeting of the board of directors, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.

The vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by[the DGCL/applicable law], the certificate of incorporation or these bylaws.

If the certificate of incorporation provides that one or more directors shall have more or less than one vote per director on any matter, every reference in these bylaws to a majority or other proportion of the directors shall refer to a majority or other proportion of the votes of such directors.

3.9 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING

Unless otherwise restricted by the certificate of incorporation, these bylaws or [DGCL/applicable law], any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board of directors or committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board of directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

-11-


3.10 FEES AND COMPENSATION OF DIRECTORS

Unless otherwise restricted by the certificate of incorporation, these bylaws or [DCGL/applicable law], the board of directors shall have the authority to fix the compensation of directors.

3.11 REMOVAL OF DIRECTORS

A director may be removed from office by the stockholders of the corporation only for cause.

No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s term of office.

ARTICLE IV — COMMITTEES

4.1 COMMITTEES OF DIRECTORS

The board of directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors or in these bylaws, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the corporation.

4.2 COMMITTEE MINUTES

Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

4.3 MEETINGS AND ACTION OF COMMITTEES

Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of:

(i) Section 3.5 (place of meetings and meetings by telephone);

(ii) Section 3.6 (regular meetings);

(iii) Section 3.7 (special meetings; notice);

(iv) Section 3.8 (quorum; voting);

(v) Section 3.9 (action without a meeting); and

 

-12-


(vi) Section 7.5 (waiver of notice)

with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the board of directors and its members. However :

(i) the time of regular meetings of committees may be determined by resolution of the committee;

(ii) special meetings of committees may also be called by resolution of the committee; and

(iii) notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The board of directors or a committee may adopt rules for the government of any committee not inconsistent with the provisions of these bylaws.

Any provision in the certificate of incorporation providing that one or more directors shall have more or less than one vote per director on any matter shall apply to voting in any committee or subcommittee, unless otherwise provided in the certificate of incorporation or these bylaws.

4.4 SUBCOMMITTEES

Unless otherwise provided in the certificate of incorporation, these bylaws or the resolutions of the board of directors designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.

ARTICLE V — OFFICERS

5.1 OFFICERS

The officers of the corporation shall be a president and a secretary. The corporation may also have, at the discretion of the board of directors, a chairperson of the board of directors, a vice chairperson of the board of directors, a chief executive officer, a chief financial officer or treasurer, one or more vice presidents, one or more assistant vice presidents, one or more assistant treasurers, one or more assistant secretaries, and any such other officers as may be appointed in accordance with the provisions of these bylaws. Any number of offices may be held by the same person.

5.2 APPOINTMENT OF OFFICERS

The board of directors shall appoint the officers of the corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws, subject to the rights, if any, of an officer under any contract of employment. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in this Section 5 for the regular election to such office.

5.3 SUBORDINATE OFFICERS

The board of directors may appoint, or empower the chief executive officer or, in the absence of a chief executive officer, the president, to appoint, such other officers and agents as the business of the

 

-13-


corporation may require. Each of such officers and agents shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the board of directors may from time to time determine.

5.4 REMOVAL AND RESIGNATION OF OFFICERS

Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the board of directors at any regular or special meeting of the board of directors. Any such officer, except in the case of an officer chosen by the board of directors, may also be removed by an officer upon whom such power of removal may be conferred by the board of directors.

Any officer may resign at any time by giving written or electronic notice to the corporation; provided, however , that if such notice is given by electronic transmission, such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the officer. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice. Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.

5.5 VACANCIES IN OFFICES

Any vacancy occurring in any office of the corporation shall be filled by the board of directors or as provided in Section 5.3.

5.6 REPRESENTATION OF SHARES OF OTHER CORPORATIONS

The chairperson of the board of directors, the president, any vice president, the treasurer, the secretary or assistant secretary of this corporation, or any other person authorized by the board of directors or the president or a vice president, is authorized to vote, represent, and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.

5.7 AUTHORITY AND DUTIES OF OFFICERS

All officers of the corporation shall respectively have such authority and perform such duties in the management of the business of the corporation as may be designated from time to time by the board of directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the board of directors.

5.8 THE CHAIRPERSON OF THE BOARD

The chairperson of the board shall have the powers and duties customarily and usually associated with the office of the chairperson of the board. The chairperson of the board shall preside at meetings of the board of directors.

 

-14-


5.9 THE VICE CHAIRPERSON OF THE BOARD

The vice chairperson of the board shall have the powers and duties customarily and usually associated with the office of the vice chairperson of the board. In the case of absence or disability of the chairperson of the board, the vice chairperson of the board shall perform the duties and exercise the powers of the chairperson of the board.

5.10 THE CHIEF EXECUTIVE OFFICER

The chief executive officer shall have, subject to the supervision, direction and control of the board of directors, ultimate authority for decisions relating to the supervision, direction and management of the affairs and the business of the corporation customarily and usually associated with the position of chief executive officer, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the corporation. If at any time the office of the chairperson and vice chairperson of the board shall not be filled, or in the event of the temporary absence or disability of the chairperson of the board and the vice chairperson of the board, the chief executive officer shall perform the duties and exercise the powers of the chairperson of the board unless otherwise determined by the board of directors.

5.11 THE PRESIDENT

The president shall have, subject to the supervision, direction and control of the board of directors, the general powers and duties of supervision, direction and management of the affairs and business of the corporation customarily and usually associated with the position of president. The president shall have such powers and perform such duties as may from time to time be assigned to him or her by the board of directors, the chairperson of the board or the chief executive officer. In the event of the absence or disability of the chief executive officer, the president shall perform the duties and exercise the powers of the chief executive officer unless otherwise determined by the board of directors.

5.12 THE VICE PRESIDENTS AND ASSISTANT VICE PRESIDENTS

Each vice president and assistant vice president shall have such powers and perform such duties as may from time to time be assigned to him or her by the board of directors, the chairperson of the board, the chief executive officer or the president.

5.13 THE SECRETARY AND ASSISTANT SECRETARIES

(i) The secretary shall attend meetings of the board of directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book or books kept for such purpose. The secretary shall have all such further powers and duties as are customarily and usually associated with the position of secretary or as may from time to time be assigned to him or her by the board of directors, the chairperson of the board, the chief executive officer or the president.

(ii) Each assistant secretary shall have such powers and perform such duties as may from time to time be assigned to him or her by the board of directors, the chairperson of the board, the chief executive officer, the president or the secretary. In the event of the absence, inability or refusal to act of the secretary, the assistant secretary (or if there shall be more than one, the assistant secretaries in the order determined by the board of directors) shall perform the duties and exercise the powers of the secretary.

 

-15-


5.14 THE CHIEF FINANCIAL OFFICER AND ASSISTANT TREASURERS

(i) The chief financial officer shall be the treasurer of the corporation. The chief financial officer shall have custody of the corporation’s funds and securities, shall be responsible for maintaining the corporation’s accounting records and statements, shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation, and shall deposit or cause to be deposited moneys or other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. The chief financial officer shall also maintain adequate records of all assets, liabilities and transactions of the corporation and shall assure that adequate audits thereof are currently and regularly made. The chief financial officer shall have all such further powers and duties as are customarily and usually associated with the position of chief financial officer, or as may from time to time be assigned to him or her by the board of directors, the chairperson, the chief executive officer or the president.

(ii) Each assistant treasurer shall have such powers and perform such duties as may from time to time be assigned to him or her by the board of directors, the chief executive officer, the president or the chief financial officer. In the event of the absence, inability or refusal to act of the chief financial officer, the assistant treasurer (or if there shall be more than one, the assistant treasurers in the order determined by the board of directors) shall perform the duties and exercise the powers of the chief financial officer.

ARTICLE VI — STOCK

6.1 STOCK CERTIFICATES; PARTLY PAID SHARES

The shares of the corporation shall be represented by certificates, provided that the board of directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Every holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of the corporation by the chairperson of the board of directors or vice-chairperson of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. The corporation shall not have power to issue a certificate in bearer form.

The corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly-paid shares, or upon the books and records of the corporation in the case of uncertificated partly-paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully-paid shares, the corporation shall declare a dividend upon partly-paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.

6.2 SPECIAL DESIGNATION ON CERTIFICATES

If the corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional or other

 

-16-


special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the corporation shall issue to represent such class or series of stock; provided, however , that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to this section 6.2 or Sections 151, 156, 202(a) or 218(a) of the DGCL or with respect to this section 6.2 a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated stock and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.

6.3 LOST, STOLEN OR DESTROYED CERTIFICATES

Except as provided in this Section 6.3, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the corporation and cancelled at the same time. The corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.

6.4 DIVIDENDS

The board of directors, subject to any restrictions contained in the certificate of incorporation or applicable law, may declare and pay dividends upon the shares of the corporation’s capital stock. Dividends may be paid in cash, in property, or in shares of the corporation’s capital stock, subject to the provisions of the certificate of incorporation.

The board of directors may set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the corporation, and meeting contingencies.

6.5 TRANSFER OF STOCK

Transfers of record of shares of stock of the corporation shall be made only upon its books by the holders thereof, in person or by an attorney duly authorized, and, if such stock is certificated, upon the surrender of a certificate or certificates for a like number of shares, properly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer; provided, however, that such succession, assignment or authority to transfer is not prohibited by the certificate of incorporation, these bylaws, applicable law or contract.

 

-17-


6.6 STOCK TRANSFER AGREEMENTS

The corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the corporation to restrict the transfer of shares of stock of the corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.

6.7 REGISTERED STOCKHOLDERS

The corporation:

(i) shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner;

(ii) shall be entitled (to the fullest extent permitted by applicable law) to hold liable for calls and assessments the person registered on its books as the owner of shares; and

(iii) shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

ARTICLE VII — MANNER OF GIVING NOTICE AND WAIVER

7.1 NOTICE OF STOCKHOLDERS’ MEETINGS

Notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the corporation’s records. An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

7.2 NOTICE BY ELECTRONIC TRANSMISSION

Without limiting the manner by which notice otherwise may be given effectively to stockholders pursuant to the DGCL, the certificate of incorporation or these bylaws, any notice to stockholders given by the corporation under any provision of the DGCL, the certificate of incorporation or these bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if:

(i) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent; and

(ii) such inability becomes known to the secretary or an assistant secretary or to the transfer agent, or other person responsible for the giving of notice.

However, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.

 

-18-


Any notice given pursuant to the preceding paragraph shall be deemed given:

 

  (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;

 

  (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice;

 

  (iii) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and

 

  (iv) if by any other form of electronic transmission, when directed to the stockholder.

An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the corporation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

An “ electronic transmission ” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

7.3 NOTICE TO STOCKHOLDERS SHARING AN ADDRESS

Except as otherwise prohibited under the DGCL, without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the corporation under the provisions of the DGCL, the certificate of incorporation or these bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any stockholder who fails to object in writing to the corporation, within 60 days of having been given written notice by the corporation of its intention to send the single notice, shall be deemed to have consented to receiving such single written notice.

7.4 NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL

Whenever notice is required to be given, under the DGCL, the certificate of incorporation or these bylaws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the corporation is such as to require the filing of a certificate under the DGCL, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.

7.5 WAIVER OF NOTICE

Whenever notice is required to be given to stockholders, directors or other persons under any provision of the DGCL, the certificate of incorporation or these bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether

 

-19-


before or after the time of the event for which notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders or the board of directors, as the case may be, need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the certificate of incorporation or these bylaws.

ARTICLE VIII — INDEMNIFICATION

8.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS

Subject to the other provisions of this Article VIII, the corporation shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ Proceeding ”) (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director of the corporation or an officer of the corporation, or while a director of the corporation or officer of the corporation is or was serving at the request of the corporation as a director, officer, employee or agent of a subsidiary or another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

8.2 INDEMNIFICATION OF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE RIGHT OF THE CORPORATION

Subject to the other provisions of this Article VIII, the corporation shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the corporation, or while a director or officer of the corporation is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

-20-


8.3 SUCCESSFUL DEFENSE

To the extent that a present or former director or officer of the corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described in Section 8.1 or Section 8.2, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

8.4 INDEMNIFICATION OF OTHERS; ADVANCE PAYMENT TO OTHERS

Subject to the other provisions of this Article VIII, the corporation shall have power to advance expenses to and indemnify its employees and its agents to the extent not prohibited by the DGCL or other applicable law. The board of directors shall have the power to delegate the determination of whether employees or agents shall be indemnified or receive an advancement of expenses to such person or persons as the board of determines.

8.5 ADVANCE PAYMENT OF EXPENSES

Expenses (including attorneys’ fees) incurred by an officer or director of the corporation in defending any Proceeding shall be paid by the corporation in advance of the final disposition of such Proceeding upon receipt of a written request therefor (together with documentation reasonably evidencing such expenses) and an undertaking by or on behalf of the person to repay such amounts if it shall ultimately be determined that the person is not entitled to be indemnified under this Article VIII or the DGCL. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems reasonably appropriate and shall be subject to the corporation’s expense guidelines.

8.6 LIMITATION ON INDEMNIFICATION

Subject to the requirements in Section 8.3 and the DGCL, the corporation shall not be obligated to indemnify any person pursuant to this Article VIII in connection with any Proceeding (or any part of any Proceeding):

(i) for which payment has actually been made to or on behalf of such person under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid;

(ii) for an accounting or disgorgement of profits pursuant to Section 16(b) of the 1934 Act, or similar provisions of federal, state or local statutory law or common law, if such person is held liable therefor (including pursuant to any settlement arrangements);

(iii) for any reimbursement of the corporation by such person of any bonus or other incentive-based or equity-based compensation or of any profits realized by such person from the sale of securities of the corporation, as required in each case under the 1934 Act (including any such reimbursements that arise from an accounting restatement of the corporation pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act ”), or the payment to the corporation of profits arising from the purchase and sale by such person of securities in violation of Section 306 of the Sarbanes-Oxley Act), if such person is held liable therefor (including pursuant to any settlement arrangements);

(iv) initiated by such person against the corporation or its directors, officers, employees, agents or other indemnitees, unless (a) the board of directors authorized the Proceeding (or the relevant part of

 

-21-


the Proceeding) prior to its initiation, (b) the corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the corporation under applicable law, (c) otherwise required to be made under Section 8.7 or (d) otherwise required by applicable law; or

(v) if prohibited by applicable law; provided, however , that if any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Article VIII (including, without limitation, each portion of any paragraph or clause containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion of any paragraph or clause containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforcebable.

8.7 DETERMINATION; CLAIM

If a claim for indemnification or advancement of expenses under this Article VIII is not paid in full within 90 days after receipt by the corporation of the written request therefor, the claimant shall be entitled to an adjudication by a court of competent jurisdiction of his or her entitlement to such indemnification or advancement of expenses. The corporation shall indemnify such person against any and all expenses that are incurred by such person in connection with any action for indemnification or advancement of expenses from the corporation under this Article VIII, to the extent such person is successful in such action, and to the extent not prohibited by law. In any such suit, the corporation shall, to the fullest extent not prohibited by law, have the burden of proving that the claimant is not entitled to the requested indemnification or advancement of expenses.

8.8 NON-EXCLUSIVITY OF RIGHTS

The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the certificate of incorporation or any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. The corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advancement of expenses, to the fullest extent not prohibited by the DGCL or other applicable law.

8.9 INSURANCE

The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under the provisions of the DGCL.

 

-22-


8.10 SURVIVAL

The rights to indemnification and advancement of expenses conferred by this Article VIII shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

8.11 EFFECT OF REPEAL OR MODIFICATION

Any amendment, alteration or repeal of this Article VIII shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to such amendment, alteration or repeal.

8.12 CERTAIN DEFINITIONS

For purposes of this Article VIII, references to the “ corporation ” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to “ other enterprises ” shall include employee benefit plans; references to “ fines ” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “ serving at the request of the corporation ” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “ not opposed to the best interests of the corporation ” as referred to in this Article VIII.

ARTICLE IX — GENERAL MATTERS

9.1 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS

Except as otherwise provided by law, the certificate of incorporation or these bylaws, the board of directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute any document or instrument in the name of and on behalf of the corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the board of directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

9.2 FISCAL YEAR

The fiscal year of the corporation shall be fixed by resolution of the board of directors and may be changed by the board of directors.

 

-23-


9.3 SEAL

The corporation may adopt a corporate seal, which shall be adopted and which may be altered by the board of directors. The corporation may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

9.4 CONSTRUCTION; DEFINITIONS

Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the DGCL shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “ person ” includes both an entity and a natural person.

ARTICLE X — AMENDMENTS

These bylaws may be adopted, amended or repealed by the affirmative vote of the holders of at least 66 2/3% of the total voting power of outstanding voting securities, voting together as a single class. The board of directors, acting by the affirmative vote of a majority of the Whole Board, shall also have the power to adopt, amend or repeal bylaws; provided, however , that a bylaw amendment adopted by stockholders which specifies the votes that shall be necessary for the election of directors shall not be further amended or repealed by the board of directors.

 

-24-


A10 NETWORKS, INC.

CERTIFICATE OF AMENDMENT OF BYLAWS

The undersigned hereby certifies that he or she is the duly elected, qualified, and acting Secretary or Assistant Secretary of A10 NETWORKS, INC., a Delaware corporation and that the foregoing bylaws, comprising [    ] pages, were amended and restated on             , 2014 by the corporation’s board of directors.

IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand this     day of             , 2014.

 

 

Secretary

Exhibit 4.1

 

LOGO

. ZQ|CERT#|COY|CLS|RGSTRY|ACCT#|TRANSTYPE|RUN#|TRANS#
COMMON STOCK PAR VALUE $0.00001
A10R
COMMON STOCK
THIS CERTIFICATE IS TRANSFERABLE IN CANTON, MA, JERSEY CITY, NJ AND COLLEGE STATION, TX
Certificate Number ZQ00000000
A10 NETWORKS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT
Shares
**000000 ******************
***000000 *****************
****000000 ****************
*****000000 ***************
******000000 **************
MR. SAMPLE & MRS. SAMPLE & MR. SAMPLE & MRS. SAMPLE
** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander
David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample**** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Sample **** Mr. Sample
CUSIP 002121 10 1
SEE REVERSE FOR CERTAIN DEFINITIONS
is the owner of
***ZERO HUNDRED THOUSAND
ZERO HUNDRED AND ZERO***
**000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**S

FULLY-PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF
A10 Networks, Inc. (hereinafter called the “Company”), transferable on the books of the Company in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby, are issued and shall be held subject to all of the provisions of the Certificate of Incorporation, as amended, and the By-Laws, as amended, of the Company (copies of which are on file with the Company and with the Transfer Agent), to all of which each holder, by acceptance hereof, assents. This Certificate is not valid unless countersigned and registered by the Transfer Agent and Registrar.
Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers.
President
Secretary
A10 NETWORKS, INC. SEAL 2014 DELAWARE
DATED DD-MMM-YYYY
COUNTERSIGNED AND REGISTERED:
COMPUTERSHARE TRUST COMPANY, N.A.
TRANSFER AGENT AND REGISTRAR,
By AUTHORIZED SIGNATURE
1234567
A10
PO BOX 43004, Providence, RI 02940-3004
MR A SAMPLE
DESIGNATION (IF ANY)
ADD 1 ADD 2 ADD 3 ADD 4
CUSIP XXXXXX XX X
Holder ID XXXXXXXXXX
Insurance Value 1,000,000.00
Number of Shares 123456
DTC 12345678 123456789012345
Certificate Numbers Num/No. Denom. Total
1234567890/1234567890 1 1 1
1234567890/1234567890 2 2 2
1234567890/1234567890 3 3 3
1234567890/1234567890 4 4 4
1234567890/1234567890 5 5 5
1234567890/1234567890 6 6 6
Total Transaction 7


LOGO

A10 NETWORKS, INC.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO REQUESTS, A SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OF THE COMPANY AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND RIGHTS, AND THE VARIATIONS IN RIGHTS, PREFERENCES AND LIMITATIONS DETERMINED FOR EACH SERIES, WHICH ARE FIXED BY THE CERTIFICATE OF INCORPORATION OF THE COMPANY, AS AMENDED, AND THE RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE COMPANY, AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE VARIATIONS FOR FUTURE SERIES. SUCH REQUEST MAY BE MADE TO THE OFFICE OF THE SECRETARY OF THE COMPANY OR TO THE TRANSFER AGENT. THE BOARD OF DIRECTORS MAY REQUIRE THE OWNER OF A LOST OR DESTROYED STOCK CERTIFICATE, OR HIS LEGAL REPRESENTATIVES, TO GIVE THE COMPANY A BOND TO INDEMNIFY IT AND ITS TRANSFER AGENTS AND REGISTRARS AGAINST ANY CLAIM THAT MAY BE MADE AGAINST THEM ON ACCOUNT OF THE ALLEGED LOSS OR DESTRUCTION OF ANY SUCH CERTIFICATE.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM
- as tenants in common
UNIF GIFT MIN ACT -
Custodian
TEN ENT
- as tenants by the entireties
(Cust)
under Uniform Gifts to Minors Act
(Minor)
(State)
JT TEN
- as joint tenants with right of survivorship and not as tenants in common
UNIF TRF MIN ACT-
Custodian (until age)
(Cust)
under Uniform Transfers to Minors Act
(Minor)
(State)
Additional abbreviations may also be used though not in the above list.
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
For value received, hereby sell, assign and transfer unto
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE)
Shares
of the common stock represented by the within Certificate, and do hereby irrevocably constitute and appoint
Attorney
to transfer the said stock on the books of the within-named Company with full power of substitution in the premises.
Signature(s) Guaranteed: Medallion Guarantee Stamp
Dated: 20
Signature(s) Guaranteed: Medallion Guarantee Stamp
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (Banks, Stockbrokers, Savings and Loan Associations and Credit Unions) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15.
Signature:
Signature:
Notice:
The signature to this assignment must correspond with the name as written upon the face of the certificate, in every particular, without alteration or enlargement, or any change whatever.
The IRS requires that we report the cost basis of certain shares acquired after January 1, 2011. If your shares were covered by the legislation and you have sold or transferred the shares and requested a specific cost basis calculation method, we have processed as requested. If you did not specify a cost basis calculation method, we have defaulted to the first in, first out (FIFO) method. Please visit our website or consult your tax advisor if you need additional information about cost basis.
If you do not keep in contact with us or do not have any activity in your account for the time periods specified by state law, your property could become subject to state unclaimed property laws and transferred to the appropriate state.
SECURITY INSTRUCTIONS
THIS IS WATERMARKED PAPER DO NOT ACCEPT WITHOUT NOTHING WATERMARK. HOLD TO LIGHT TO VERIFY WATERMARK
1234567

Exhibit 4.2

A10 NETWORKS, INC.

FOURTH AMENDED AND RESTATED RIGHTS AGREEMENT


TABLE OF CONTENTS

 

          Page  
Section 1.    Termination of Prior Rights      2   
Section 2.    Registration Rights      2   
2.1    Definitions      2   
2.2    Requested Registration      3   
2.3    Company Registration      5   
2.4    Obligations of the Company      5   
2.5    Furnish Information      7   
2.6    Expenses of Demand Registration      7   
2.7    Expenses of Company Registration      7   
2.8    Underwriting Requirements      7   
2.9    Delay of Registration      8   
2.10    Indemnification      8   
2.11    Restrictions on Transfer      10   
2.12    Reports Under Securities Exchange Act of 1934      12   
2.13    Form S-3 Registration      13   
2.14    Assignment of Registration Rights      14   
2.15    Limitations on Subsequent Registration Rights      14   
2.16    “Market Stand-Off” Agreement      14   
2.17    Subsidiary Public Offering      15   
Section 3.    Information Rights      15   
3.1    Delivery of Financial Statements      15   
3.2    Termination of Financial Statement Rights      16   
3.3    Confidentiality      16   
Section 4.    Right of First Refusal      16   
4.1    Right of First Refusal to Major Series D Investors      16   
Section 5.    Miscellaneous      18   
5.1    Successors and Assigns      18   
5.2    Third Parties      18   
5.3    Governing Law      18   
5.4    Counterparts      18   
5.5    Notices      18   
5.6    Severability      19   
5.7    Amendment      19   
5.8    Rights of Holders      19   
5.9    Entire Agreement      20   
5.10    Delays or Omissions      20   


TABLE OF CONTENTS

(continued)

 

          Page  
5.11    Titles and Subtitles      20   
5.12    Telecopy Execution and Delivery      20   
5.13    Jurisdiction; Venue      20   
5.14    Further Assurances      20   
5.15    Attorneys’ Fees      21   
5.16    Aggregation of Stock      21   
5.17    Remedies      21   
5.18    Jury Trial      21   


FOURTH AMENDED AND RESTATED RIGHTS AGREEMENT

THIS FOURTH AMENDED AND RESTATED RIGHTS AGREEMENT (the “ Agreement ”) is made and entered into as of the 27 day of June, 2013, by and among A10 Networks, Inc., a California corporation (the “ Company ”), the investors in the Company’s Series A Preferred Stock pursuant to those certain Series A Preferred Stock Purchase Agreements dated as of October 21, 2004 and July 30, 2005 (the “ Series A Investors ”), the investors in the Company’s Series B Preferred Stock pursuant to that certain Series B Preferred Stock Purchase Agreement dated as of August 21, 2006, as amended (the “ Series B Investors ”), the Investors in the Company’s Series C Preferred Stock pursuant to the Series C Preferred Stock Purchase Agreement dated as of February 28, 2008, as amended (the “ Series C Investors ,” and collectively with the Series A Investors and the Series B Investors, the “ Prior Investors ”), the Investors in the Company’s Series D Preferred Stock (the “ Series D Investors ”) pursuant to the Series D Preferred Stock Purchase Agreement of even date herewith, as it may be amended from time to time (the “ Series D Agreement ”) and with respect to Section 2.16 only, Lee Chen (the “ Key Holder ”). The Prior Investors and the Series D Investors are referred to collectively as the “ Investors ” and are listed on the Schedule of Investors attached to this Agreement as Exhibit A .

RECITALS

WHEREAS, the Company and the Prior Investors are parties to that certain Third Amended and Restated Rights Agreement dated February 28, 2008 (the “ Prior Rights Agreement ”);

WHEREAS, the Prior Investors have certain registration and other rights under the Prior Rights Agreement;

WHEREAS, the Company, to induce the Series D Investors to purchase shares of the Company’s Series D Preferred Stock (the “ Shares ”) pursuant to the Series D Agreement, desires to grant certain registration rights and other rights to the Series D Investors, and the Prior Investors desire to facilitate such grant;

WHEREAS, the sale of the Shares to the Series D Investors is conditioned upon the registration rights and other rights being extended to the Series D Investors; and

WHEREAS, the Prior Rights Agreement may be amended, waived or modified as set forth in Section 4.7 thereof.

NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, the parties agree as follows:


Section 1. Termination of Prior Rights . The Company and the Prior Investors, to induce the Series D Investors to invest in the Company, accept and agree to the termination of all prior rights under the Prior Rights Agreement, and accept and agree to be bound by the terms of this Agreement.

Section 2. Registration Rights .

2.1 Definitions . As used in this Agreement:

(a) The term “ affiliate ” has the meaning set forth in Rule 501 of the Securities Act of 1933, as amended (the “ Act ”).

(b) The term “ Form S-3 ” means such form under the Act as in effect on the date hereof or any registration form under the Act subsequently adopted by the Securities and Exchange Commission (“ SEC ”) which permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC.

(c) The term “ Holder ” means any Investor holding Registrable Securities or securities convertible into Registrable Securities, or any assignee thereof in accordance with Section 2.14 hereof.

(d) The term “ Initiating Holders ” means any Holder or Holders who in the aggregate hold no less than fifty percent (50%) of the outstanding Registrable Securities.

(e) The term “ Major Investor ” means each Holder holding not less than 250,000 shares of Preferred Stock or Common Stock (adjusted to reflect stock splits, stock dividends and recapitalizations) issued upon conversion of the Preferred Stock. For purposes of this Agreement, all holdings of equity interests by persons who are affiliates of each other shall be aggregated for purposes of meeting any threshold tests under this Agreement, including this Section 2.1(e) and 2.1(f) below.

(f) The term “ Major Series D Investor ” means each Holder holding not less than 2,000 shares of Series D Preferred Stock or 825,000 shares of Common Stock (adjusted as each such number may be adjusted from time to time for stock splits, stock dividends, combinations, subdivisions, recapitalizations and the like) issued upon conversion of the Series D Preferred Stock.

(g) The term “ person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a Governmental Authority or any department, agency or political subdivision thereof.

(h) The terms “ register ,” “ registered ,” and “ registration ” refer to a registration effected by preparing and filing a registration statement in compliance with the Act, and the subsequent declaration or ordering of the effectiveness of such registration statement.


(i) The term “ Registrable Securities ” means:

(i) the shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock of the Company (the “ Preferred Stock ”), 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 Preferred Stock excluding in all cases, however, any Registrable Securities sold by a person in a transaction in which his or her rights under this Agreement are not assigned; provided , however , that 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 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.

(j) 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.

(k) The term “ Series D Initiating Holders ” means any Holder or Holders who in the aggregate hold no less than fifty percent (50%) of the shares of Common Stock issuable or issued upon conversion of the Series D Preferred Stock.

(l) The term “ WKSI ” means a well-known seasoned issuer, as defined under SEC Rule 405.

2.2 Requested Registration .

(a) If the Company shall receive at any time after six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction) (the “ Initial Public Offering ”), a written request from the Initiating Holders or Series D Initiating Holders that the Company file a registration statement under the Act covering the registration of not less than fifty percent (50%) of the Registrable Securities then outstanding and held by the holders of (i) Preferred Stock or (ii) Series D Preferred Stock, as applicable, (or any lesser number of shares if the anticipated aggregate offering price, net of underwriting discounts and commissions would exceed $5,000,000) (such request by the Initiating Holders, a “ Preferred Demand ” and such request by the Series D Initiating Holders, a “ Series D Demand ” and such requested securities in either case, the “ Demand Securities ”)) 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


2.2(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 Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.

(b) If the Initiating Holders, pursuant to a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand, 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 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 such Holder’s 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, pursuant to a Preferred Demand, or a majority in interest of the Series D Initiating Holders, pursuant to a Series D Demand, 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 2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, pursuant to a Preferred Demand, or a majority in interest of the Series D Initiating Holders, pursuant to a Series D Demand. Notwithstanding any other provision of this Section 2.2, if the underwriter advises the Initiating Holders, pursuant to a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand, in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders, pursuant to a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand, 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, pursuant to a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder (a “ Cutback Registration ”). The Company shall not include in any registration pursuant to a Preferred Demand or Series D Demand that is an underwritten offering any securities that are held by an employee of the Company or any of its subsidiaries or any person controlled by any such employee without the prior written consent of the managing underwriters and shall not include in any registration pursuant to a Preferred Demand or Series D Demand any securities that are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities held by the Initiating Holders, pursuant to a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand, included in such registration.

(c) The Company is obligated to effect only one (1) such registration pursuant to a Preferred Demand and two (2) such registrations pursuant to a Series D Demand; provided that a Cutback Registration shall not be deemed a registration pursuant to a Preferred Demand or Series D Demand if less than 75% of the securities requesting registration in such demand are not registered pursuant to such registration.


(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2, 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 materially and adversely detrimental to the Company and its shareholders 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 ninety (90) days after receipt of the request of the Initiating Holders, pursuant to a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand; provided, however, that the Company may not utilize this right more than once in any twelve (12) month period.

(e) Notwithstanding the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2.2 during the period starting with the date of filing of, and ending on a date ninety (90) days after the effective date of, a Company-initiated registration; provided the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective.

2.3 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 shareholders other than the Holders) any of its Common Stock or other securities under the Act in connection with a public offering of such securities (other than a registration relating either to the sale of securities to participants in a Company stock option, stock purchase or similar plan on Form S-8), the Company shall, at least thirty (30) days prior to filing such registration statement, 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 4.5, the Company shall, subject to the provisions of Section 2.8, use its best efforts to cause to be registered under the Act all of the Registrable Securities that each such Holder has requested to be registered.

2.4 Obligations of the Company . Whenever required under this Section 2 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 Act with respect to the disposition of all securities covered by such registration statement.

(c) Furnish to the Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Act, and such other


documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them.

(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 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 pursuant to this Section 2, on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Section 2, 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, (i) an opinion, dated such date, of the outside 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, if any, 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.

(h) Provide a transfer agent and registrar for all Registrable Securities registered pursuant to such registration statement and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration.

(i) Cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed.

(j) In connection with any underwritten offering pursuant to a registration statement filed pursuant to Section 2.2, enter into an underwriting agreement in form reasonably necessary to effect the offer and sale of Common Stock, provided such underwriting agreement


contains reasonable and customary provisions, and provided further, that each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.

2.5 Furnish Information . It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such customary 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.

2.6 Expenses of Demand Registration . All expenses other than underwriting discounts and commissions incurred in connection with registrations, filings or qualifications pursuant to Section 2.2, including (without limitation), all registration, filing and qualification fees, printers and accounting fees, fees and disbursements of counsel for the Company, and the reasonable fees and disbursements of one counsel for the selling Holders shall be borne by the Company with respect to such registrations; provided, however, that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 2.2 if the registration request is subsequently withdrawn at the request of a majority in interest of the Initiating Holders, if such request was a Preferred Demand, or a majority in interest of the Series D Initiating Holders, if such request was a Series D Demand (in which case all participating Holders shall bear such expenses) unless a majority in interest of the Initiating Holders, if such request was a Preferred Demand, or a majority in interest of the Series D Initiating Holders, if such request was a Series D Demand, agrees to forfeit their right to the demand registration pursuant to Section 2.2; provided further, however, that if at the time of such withdrawal, (i) the Holders have learned of a material and adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request or (ii) the underwriters indicated that the registration would have likely been a Cutback Registration, then the Holders shall not be required to pay any of such expenses and shall retain their rights pursuant to Section 2.2.

2.7 Expenses of Company Registration . The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of Registrable Securities with respect to registrations pursuant to Section 2.3 for each Holder (which right may be assigned as provided in Section 2.14), including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them, but excluding underwriting discounts and commissions relating to Registrable Securities.

2.8 Underwriting Requirements . In connection with any offering involving an underwriting of shares being issued by the Company, the Company shall not be required under Section 2.3 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 (provided that such underwriters shall be of nationally recognized reputation), and then only in such quantity as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the


Company that the underwriters reasonably believe 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 believe will not jeopardize the success of the offering (the securities so included to be apportioned pro rata (i)  first among the selling shareholders holding Registrable Securities and (ii)  second among selling shareholders holding other equity securities. In no event shall 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 Company’s first firm commitment underwritten public offering of the Company’s securities registered under the Act (the “ Initial Public Offering ”), in which case the selling shareholders may be excluded if the underwriters make the determination described above and no other shareholder’s securities are included. Notwithstanding the foregoing, the Company shall not include in any registration pursuant to this Section 2.3 that is an underwritten offering any securities that are held by an employee of the Company or any of its subsidiaries or any person controlled by any such employee without the prior written consent of the underwriters. For purposes of the preceding parenthetical concerning apportionment, for any selling shareholder which is a holder of Registrable Securities and which 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 “ selling shareholder ,” and any pro rata reduction with respect to such “ selling shareholder ” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “ selling shareholder ,” as defined in this sentence.

2.9 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 2.

2.10 Indemnification . In the event any Registrable Securities are included in a registration statement under this Section 2:

(a) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, any underwriter (as defined in the Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the 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 Act, the 1934 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 or incorporated by reference in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, any issuer free writing prospectus (as defined in Rule 433 of the Act), any issuer information (as defined in Rule 433 of the Act) filed or required to be filed pursuant to Rule 433(d) under the Act or any other document incident to any such registration, qualification or compliance prepared by or on behalf of the Company or used or referred to by the Company, (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 Act, the 1934 Act, any state securities law or any rule or regulation promulgated under the Act, the 1934 Act or any state securities law; and the Company will pay as incurred to each such Holder, underwriter or controlling person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action; provided that the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability, or action arises out of or is based on any untrue statement or omission based upon written information furnished to the Company by such Holder or underwriter and stated to be specifically for use therein; and provided further that the indemnity agreement contained in this subsection 2.10(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 use in connection with such registration by any such Holder, underwriter or controlling person.

(b) To the extent permitted by law, each selling Holder, severally (and not jointly and severally), will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the registration statement, each person, if any, who controls the Company within the meaning of the Act, any underwriter, any other Holder selling securities in such registration statement and any controlling person of any such underwriter or other Holder, against any losses, claims, damages, or liabilities (joint or several) to which any of the foregoing persons may become subject, under the 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 pay, as incurred, any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this subsection 2.10(b), in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this subsection 2.10(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; provided that in no event shall any indemnity under this subsection 2.10(b) exceed the net proceeds from the offering received by such Holder, except in the case of fraud by such Holder.

(c) Promptly after receipt by an indemnified party under this Section 2.10 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 2.10, 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 differing 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 2.10, 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 2.10. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Each indemnified party shall furnish such information regarding itself or the claim in question as an indemnifying party may reasonably request in writing and as shall be reasonably required in connection with defense of such claim and litigation resulting therefrom.

(d) If the indemnification provided for in this Section 2.10 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation.

(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, as between the Company and the underwriters only, the provisions in the underwriting agreement shall control.

(f) The obligations of the Company and Holders under this Section 2.10 shall survive the completion of any offering of Registrable Securities in a registration statement under this Section 2, and otherwise.

2.11 Restrictions on Transfer .

(a) The holder of each certificate representing Registrable Securities by acceptance thereof agrees to comply in all respects with the provisions of this Section 2.11. Each Holder agrees not to make any sale, assignment, transfer, pledge or other disposition of all or any portion of the Registrable Securities, or any beneficial interest therein, unless and until the transferee


thereof has agreed in writing for the benefit of the Company to take and hold such Registrable Securities subject to, and to be bound by, the terms and conditions set forth in this Agreement, including, without limitation, this Section 2.11 and Section 2.16, and:

(i) There is then in effect a registration statement under the Act covering such proposed disposition and the disposition is made in accordance with the registration statement; or

(ii) The Holder shall have given prior written notice to the Company of the Holder’s intention to make such disposition, and the Holder shall have furnished the Company, at the Holder’s expense, with (i) an opinion of counsel reasonably satisfactory to the Company to the effect that such disposition will not require registration of such Registrable Securities under the Act or (ii) a “no action” letter from the Commission to the effect that the transfer of such securities without registration will not result in a recommendation by the staff of the Commission that action be taken with respect thereto, whereupon the holder of such Registrable Securities shall be entitled to transfer such Registrable Securities in accordance with the terms of the notice delivered by the Holder to the Company, whereupon the holder of such Registrable Securities shall be entitled to transfer such Registrable Securities in accordance with the terms of the notice delivered by the Holder to the Company.

(b) Notwithstanding the provisions of Section 2.11(a), no such registration statement or opinion of counsel or “no action” letter shall be necessary for (i) a transfer not involving a change in beneficial ownership, (ii) customary transfers pursuant to Rule 144 of the Act or (iii) transactions involving the distribution without consideration of Registrable Securities by any Holder to (x) a parent, subsidiary or other affiliate of the Holder, if the Holder is a corporation or other entity, (y) any of the Holder’s partners, members or other equity owners, or retired partners, retired members or other equity owners, or to the estate of any of the Holder’s partners, members or other equity owners or retired partners, retired members or other equity owners, or (z) a person that is controlled by or under common control with one or more general partners or managing members of, or shares the same management company with, the Holder; provided , in each case, that the Holder shall give written notice to the Company of the Holder’s intention to effect such disposition.

(c) Each certificate representing Registrable Securities shall (unless otherwise permitted by the provisions of this Agreement) be stamped or otherwise imprinted with a legend substantially similar to the following (in addition to any legend required under applicable state securities laws):

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ ACT ”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES


MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE, INCLUDING A LOCK-UP PERIOD IN THE EVENT OF A PUBLIC OFFERING, AS SET FORTH IN AN INVESTORS’ RIGHTS AGREEMENT, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE COMPANY.

The Holders consent to the Company making a notation on its records and giving instructions to any transfer agent of the Registrable Securities in order to implement the restrictions on transfer established in this Section 2.11.

(d) The first legend referring to federal and state securities laws identified in Section 2.11(c) stamped on a certificate evidencing the Registrable Securities and the stock transfer instructions and record notations with respect to the Registrable Securities shall be removed and the Company shall issue a certificate without such legend to the holder of Registrable Securities if (i) those securities are registered under the Act, or (ii) the holder provides the Company with a certificate to the effect that a sale or transfer of those securities may be made without registration or qualification.

2.12 Reports Under Securities Exchange Act of 1934 . With a view to making available to the Holders the benefits of Rule 144 promulgated under the Act and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company agrees to:

(a) make and keep public information available, as those terms are understood and defined in SEC Rule 144, at all times after ninety (90) days after the effective date of the Initial Public Offering;

(b) take such action, including the voluntary registration of its Common Stock under Section 12 of the 1934 Act, as is necessary to enable the Holders to utilize Form S-3 for the sale of their Registrable Securities, such action to be taken as soon as practicable after the end of the fiscal year following the effective date of the Initial Public Offering;

(c) file with the SEC in a timely manner all reports and other documents required of the Company under the Act and the 1934 Act; and

(d) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a certificate by an officer of the Company that it has complied with the reporting requirements of SEC Rule 144 (at any time after ninety (90) days after the effective date of the first registration statement filed by the Company), the Act and the 1934 Act (at


any time after it has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC which permits the selling of any such securities without registration or pursuant to such form.

2.13 Form S-3 Registration . In case the Company shall receive from any Holder or Holders of the Registrable Securities 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, 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 fifteen (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 2.13, (i) if Form S-3 is not legally 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 $1,000,000; or (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 materially and adversely 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 for a period of not more than ninety (90) days after receipt of the request of the Holder or Holders under this Section 2.13; provided, however, that the Company shall not utilize this right more than once in any twelve (12) month period. If for any reason the Company ceases to be a WKSI or becomes ineligible to utilize Form S-3, then the Company shall prepare and file with the Securities and Exchange Commission one or more registration statements on such form that is available for the sale of Registrable Securities. All registrations pursuant to this Section 2.13 shall be underwritten registrations unless otherwise approved by the holders of a majority of the Registrable Securities initially requesting registration.

(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. All expenses other than underwriting discounts and commissions incurred in connection with a registration requested pursuant to this Section 2.13, including (without limitation) all registration, filing, qualification,


printer’s and accounting fees and the reasonable fees and disbursements of counsel for the Company and one counsel for the selling Holder or Holders, shall 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 this Section 2.13 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 the registration under this Section 2.13 for a six (6) month period; provided further, however, that if at the time of such withdrawal, (i) the Holders have learned of a material adverse change in the condition or business of the Company from that known to the Holders at the time of their request or (ii) the underwriters indicated that the registration would have likely not included at least 75% of such Registrable Securities requested to be included in such registration, then the Holders shall not be required to pay any of such expenses and shall retain their rights pursuant to this Section 2.13 for such a six (6) month period.

(d) The Company is obligated to effect an unlimited number of registrations pursuant to this Section 2.13 and registrations effected pursuant to this Section 2.13 shall not be counted as demand registrations under Section 2.2 or 2.3.

2.14 Assignment of Registration Rights . The rights to cause the Company to register Registrable Securities pursuant to this Section 2 may be assigned by a Holder to a transferee or assignee of at least 100,000 shares of such securities provided the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such assignee and the securities with respect to which such registration rights are being assigned. The foregoing 100,000 share limitation shall not apply, however, to transfers by a Holder to affiliates, shareholders, partners or retired partners of the Holder (including spouses and ancestors, lineal descendants and siblings of such partners or spouses who acquire Registrable Securities by gift, will or intestate succession) if all such transferees or assignees agree in writing to appoint a single representative as their attorney in fact for the purpose of receiving any notices and exercising their rights under this Section 2.

2.15 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 of a majority of the outstanding Registrable Securities, enter into any agreement with any holder or prospective holder of any securities of the Company which would allow such holder or prospective holder (a) to hold registration rights with respect to such securities unless such new registration rights, including standoff obligations, are subordinate to the registration rights granted Holders under this Agreement; or (b) to make a demand registration which could result in such registration statement being declared effective prior to the earlier of either of the dates set forth in subsection 2.2(a) or within one hundred eighty (180) days of the effective date of any registration effected pursuant to Section 2.2.

2.16 “Market Stand-Off” Agreement .

(a) Initial Public Offering. Each Holder hereby agrees that during the period of duration (up to, but not exceeding 180 days) specified by the Company and the lead


underwriter following the effective date of the Initial Public Offering, it shall not, to the extent requested by the underwriter, sell or otherwise transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale (other than with respect to transfers pursuant to Section 2.11(b)) any Common Stock of the Company held by it at any time during such period except Common Stock included in such registration; provided, however, that such Holder’s obligation under this Section 2.16(a) shall be subject to Company causing each officer, director and all other persons with registration rights (whether or not pursuant to this Agreement) to enter into a similar agreement.

(b) Other Public Offerings. If a majority of the holders of Series D Preferred Stock agree (in their sole discretion) that during the period of duration (up to, but not exceeding 90 days) specified by the Company and the lead underwriter following the effective date of a registration statement of the Company filed under the Act which covers the registration of the Registrable Securities, other than a registration statement filed in connection with the Initial Public Offering, then each Holder agrees that it shall not, to the extent requested by the underwriter, sell or otherwise transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale (other than with respect to transfers pursuant to Section 2.11(b)) any Common Stock of the Company at any time during such period except Common Stock included in such registration, and the Company shall use commercially reasonable efforts to cause each officer, director and holder of 5% of the equity of the Company and all other persons with registration rights (whether or not pursuant to this Agreement) to enter into a similar agreement.

To enforce the foregoing covenants, the Company may impose stop-transfer instructions with respect to the Registrable Securities of the Holder (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period. If required pursuant to this Agreement, each Holder agrees to execute a market standoff agreement with said underwriters in customary form consistent with the provisions of this Section 2.16.

2.17 Subsidiary Public Offering . If, after an initial public offering of the capital stock or other equity securities of one of the Company’s subsidiaries, the Company distributes securities of such subsidiary to its equity holders, then the rights of Holders hereunder and the obligations of the Company pursuant to this Agreement shall apply, mutatis mutandis , to such subsidiary, and the Company shall cause such subsidiary to comply with such subsidiary’s obligations under this Agreement.

Section 3. Information Rights .

3.1 Delivery of Financial Statements .

(a) The Company shall deliver to each Holder, as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, an income statement for such fiscal year, a balance sheet of the Company as of the end of such year, and statements of income and cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“ GAAP ”),


and, if deemed appropriate by the Board of Directors, audited and certified by independent public accountants of nationally recognized standing selected by the Company.

(b) The Company shall deliver to each Major Investor:

(i) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Company, a balance sheet of the Company as of the end of each such quarterly period, and statements of income and cash flows for such period and for the current fiscal year to date, prepared in accordance with GAAP, subject to changes resulting from normal year-end audit adjustments, all in reasonable detail and certified by the principal financial or accounting officer of the Company, except that such financial statements need not contain the notes required by GAAP;

(ii) as soon as practicable, but in any event within thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets and sources and applications of funds statements for such months and, as soon as prepared, any other budgets or revised budgets prepared by the Company; and

(iii) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as the Holder may from time to time request.

3.2 Termination of Financial Statement Rights . The covenants set forth in Section 3.1 shall terminate as to the Holders and be of no further force or effect (i) immediately upon the consummation of the Company’s Initial Public Offering in which all shares of the Company’s Series D Preferred Stock are converted to Common Stock or (ii) when the Company is required to file reports pursuant to Section 13 or 15(d) of the 1934 Act.

3.3 Confidentiality . Anything in this Agreement to the contrary notwithstanding, no Holder by reason of this Agreement shall have access to any trade secrets of the Company not shared with other Holders (in their capacity as Holders). Each Holder acknowledges that the information received by it pursuant to this Agreement may be confidential and for its use only, and it will not reproduce, disclose or disseminate such confidential information in violation of the Exchange Act or reproduce, disclose or disseminate such information to any other person (other than its employees or agents having a need to know the contents of such information, and its attorneys), except in connection with the exercise of rights under this Agreement, unless the Company has made such information available to the public generally. Notwithstanding the foregoing, each Holder may include summary financial information concerning the Company and general statements concerning the nature and progress of the Company’s business in such Holder’s reports to its limited partners.

Section 4. Right of First Refusal .

4.1 Right of First Refusal to Major Series D Investors . The Company hereby grants to each Major Series D Investor, the right of first refusal to purchase its pro rata share of New Securities (as defined in Section 4.1(a)) which the Company may, from time to time, propose to sell


and issue after the date of this Agreement. A Major Series D Investor’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Major Series D Investor immediately prior to the issuance of New Securities (assuming full conversion of the Preferred Stock and full conversion or exercise of all outstanding convertible securities, rights, options and warrants held by said Major Series D Investor, to the extent such securities are “in-the-money”) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Preferred Stock and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, to the extent such securities are “in-the-money”).

(a) “ New Securities ” shall mean any capital stock (including Common Stock and/or Preferred Stock) of the Company or any of its subsidiaries whether now authorized or not, and rights, convertible securities, options or warrants to purchase such capital stock, and securities of any type whatsoever that are, or may become, exercisable or convertible into capital stock; provided that the term “ New Securities ” does not include any securities of the Company that do not constitute “ Additional Stock ” (as defined in the Company’s Amended and Restated Articles of Incorporation, as amended from time to time).

(b) In the event the Company proposes to undertake an issuance of New Securities, it shall give each Major Series D Investor written notice of its intention, describing the type of New Securities, and their price and the general terms upon which the Company proposes to issue the same. Each Major Series D Investor shall have thirty (30) days after any such notice is mailed or delivered to agree to purchase such Holder’s pro rata share of such New Securities and to indicate whether such Holder desires to exercise its over-allotment option for the price and upon the terms specified in the notice by giving written notice to the Company, in substantially the form attached as Schedule 1, and stating therein the quantity of New Securities to be purchased.

(c) In the event the Holders fail to exercise fully the right of first refusal and over-allotment rights, if any within said thirty (30) day period (the “ Election Period ”), the Company shall have thirty (30) days thereafter to sell or enter into an agreement (pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within thirty (30) days from the date of said agreement) to sell that portion of the New Securities with respect to which the Major Series D Investors’ right of first refusal option set forth in this Section 4.1 was not exercised, at a price and upon terms no more favorable to the purchasers thereof than specified in the Company’s notice to Major Series D Investors delivered pursuant to Section 4.1(b). In the event the Company has not sold within such thirty (30) day period following the Election Period, or such thirty (30) day period following the date of said agreement, the Company shall not thereafter issue or sell any New Securities, without first again offering such securities to the Major Series D Investors in the manner provided in this Section 4.1.

(d) The right of first refusal granted under this Agreement shall expire upon the consummation of the Company’s Initial Public Offering in which all shares of the Company’s Series D Preferred Stock are converted to Common Stock.


Section 5. Miscellaneous .

5.1 Successors and Assigns . The provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.

5.2 Third Parties . Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto, and their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

5.3 Governing Law . This Agreement 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.

5.4 Counterparts . This Agreement and any amendments hereto may be executed in any number of counterparts, each of which shall be enforceable against the parties that execute such counterparts, and all of which together shall constitute one instrument.

5.5 Notices . All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or electronic mail or otherwise delivered by hand, messenger or courier service addressed:

(a) if to an Investor, to the Investor’s address, facsimile number or electronic mail address as shown on Exhibit A hereto, as may be updated in accordance with the provisions hereof, with a copy (which shall not constitute notice) to the counsel set forth on the signature pages hereto;

(b) if to any other Holder, to such address, facsimile number or electronic mail address as shown in the Company’s records, or, until any such Holder so furnishes an address, facsimile number or electronic mail address to the Company, then to the address of the last holder of such shares for which the Company has contact information in its records; or

(c) if to the Company, to the attention of the President the Company at 3 W. Plumeria Dr., San Jose, CA 95134, or at such other current address as the Company shall have furnished to the Investors or Holders, with a copy (which shall not constitute notice) to Herbert Fockler and Mark Baudler, Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Road, Palo Alto, CA 94304.

Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given (i) if delivered by hand, messenger or courier service, when delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid, specifying next-business-day delivery, one business day after deposit with the courier), or (ii) if sent via mail, at the earlier of its receipt or five days after the same has been deposited in a regularly-maintained


receptacle for the deposit of the United States mail, addressed and mailed as aforesaid, or (iii) if sent via facsimile, upon confirmation of facsimile transfer or, if sent via electronic mail, upon confirmation of delivery when directed to the relevant electronic mail address if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day. In the event of any conflict between the Company’s books and records and this Agreement or any notice delivered hereunder, the Company’s books and records will control absent fraud or error.

5.6 Severability . If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Agreement, and such court will replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the same economic, business and other purposes of the illegal, void or unenforceable provision. The balance of this Agreement shall be enforceable in accordance with its terms.

5.7 Amendment . Except as expressly provided herein, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument referencing this Agreement and signed by the Company and the Holders holding a majority of the Registrable Securities (excluding any of such shares that have been sold to the public or pursuant to Rule 144, and excluding, with respect to Section 2 (other than Sections 2.11, 2.12 and 2.16), any of such shares held by any Holders whose rights to request registration or inclusion in any registration pursuant to Section 2 have terminated in accordance with Section 2.17); provided , however , that this Agreement may not be amended, waived, discharged or terminated in any manner that adversely impacts any Series D Investor without the consent of Series D Investors holding a majority of the shares of Series D Preferred Stock; provided further, however , that Brocade Communications Systems, Inc. or its affiliates (or their designees) (“ Brocade ”) may be added as an Investor under this Agreement without any further consent of the Holders upon the issuance of Additional Brocade Stock (as defined in the Company’s Articles of Incorporation), but only to the extent that such party is issued Additional Brocade Stock. To become a party to this Agreement pursuant to the prior sentence, Brocade shall execute a counterpart to this Agreement. Any such amendment, waiver, discharge or termination effected in accordance with this paragraph shall be binding upon each Holder and each future holder of all such securities of Holder. Each Holder acknowledges that by the operation of this paragraph, the holders of a majority of the Registrable Securities (excluding any of such shares that have been sold to the public or pursuant to Rule 144, and excluding, with respect to Section 2 (other than Sections 2.11, 2.12 and 2.16), any of such shares held by any Holders whose rights to request registration or inclusion in any registration pursuant to Section 2 have terminated in accordance with Section 2.17) will have the right and power to diminish or eliminate all rights of such Holder under this Agreement.

5.8 Rights of Holders . Each Holder of Registrable Securities shall have the absolute right to exercise or refrain from exercising any right or rights that such Holder may have by reason of this Agreement, including, without limitation, the right to consent to the waiver or modification of any obligation under this Agreement, and such Holder shall not incur any liability to


any other holder of any securities of the Company as a result of exercising or refraining from exercising any such right or rights.

5.9 Entire Agreement . This Agreement and the exhibits hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and supersedes in its entirety the Prior Rights Agreement, which shall have no further force and effect. No party hereto shall be liable or bound to any other party in any manner with regard to the subjects hereof or thereof by any warranties, representations or covenants except as specifically set forth herein.

5.10 Delays or Omissions . Except as expressly provided herein, no delay or omission to exercise any right, power or remedy accruing to any party to this Agreement upon any breach or default of any other party under this Agreement shall impair any such right, power or remedy of such non-defaulting party, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party to this Agreement, shall be cumulative and not alternative.

5.11 Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All references in this Agreement to sections, paragraphs and exhibits shall, unless otherwise provided, refer to sections and paragraphs hereof and exhibits attached hereto.

5.12 Telecopy Execution and Delivery . A facsimile, telecopy or other reproduction of this Agreement may be executed by one or more parties hereto and delivered by such party by facsimile or any similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen. Such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute and deliver an original of this Agreement as well as any facsimile, telecopy or other reproduction hereof. No party hereto shall raise the use of a facsimile machine or electronic transmission in pdf to deliver a signature or the fact that any signature or document was transmitted or communicated through the use of facsimile machine as a defense to the formation of a contract, and each such party forever waives any such defense.

5.13 Jurisdiction; Venue . With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in Santa Clara County in the State of California (or in the event of exclusive federal jurisdiction, the courts of the Northern District of California).

5.14 Further Assurances . Each party hereto agrees to execute and deliver, by the proper exercise of its corporate, limited liability company, partnership or other powers, all such other


and additional instruments and documents and do all such other acts and things as may be necessary to more fully effectuate this Agreement.

5.15 Attorneys’ Fees . In the event that any suit or action is instituted to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

5.16 Aggregation of Stock . All securities held or acquired by affiliated entities (including affiliated venture capital funds) or persons shall be aggregated together for purposes of determining the availability of any rights under this Agreement.

5.17 Remedies . The Company acknowledges and agrees that the Investors would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached and money damages would not be an adequate remedy. Accordingly, in addition to the other remedies available to the Investors, the Company agrees that the Investors shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof (without the posting of bond or other security) in any action instituted in any court of the United States or any state thereof having jurisdiction over the parties and the matter.

5.18 Jury Trial . EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT. If the waiver of jury trial set forth in this section is not enforceable, then any claim or cause of action arising out of or relating to this Agreement shall be settled by judicial reference pursuant to California Code of Civil Procedure Section 638 et seq. before a referee sitting without a jury, such referee to be mutually acceptable to the parties or, if no agreement is reached, by a referee appointed by the Presiding Judge of the California Superior Court for Santa Clara County. This paragraph shall not restrict a party from exercising remedies under the Uniform Commercial Code or from exercising pre-judgment remedies under applicable law.

(signature page follows)


IN WITNESS WHEREOF , the parties hereto have executed this Fourth Amended and Restated Rights Agreement as of the day and year first above written.

 

COMPANY:

A10 NETWORKS, INC.,

a California corporation

/s/ Greg Straughn

Greg Straughn, Chief Financial Officer


IN WITNESS WHEREOF , the parties hereto have executed this Fourth Amended and Restated Rights Agreement as of the day and year first above written.

 

SERIES D INVESTORS:
SUMMIT PARTNERS GROWTH EQUITY
FUND VIII-A, L.P.
By:   Summit Partners GE VIII, L.P.
Its:   General Partner
By:   Summit Partners GE VIII, LLC
Its:   General Partner
By:  

/s/ Peter Chung

Name:   Peter Chung
Its:   Member
SUMMIT PARTNERS GROWTH EQUITY
FUND VIII-B, L.P.
By:   Summit Partners GE VIII, L.P.
Its:   General Partner
By:   Summit Partners GE VIII, LLC
Its:   General Partner
By:  

/s/ Peter Chung

Name:   Peter Chung
Its:   Member


IN WITNESS WHEREOF , the parties hereto have executed this Fourth Amended and Restated Rights Agreement as of the day and year first above written.

 

SERIES D INVESTORS:
SUMMIT INVESTORS I, LLC
By:   Summit Investors Management, LLC
Its:   Manager
By:   Summit Partners, L.P.
Its:   Manager
By:   Summit Master Company, LLC
Its:   General Partner
By:  

/s/ Peter Chung

Name:   Peter Chung
Its:   Member
SUMMIT INVESTORS I (UK), L.P.
By:   Summit Investors Management, LLC
Its:   General Partner
By:   Summit Partners, L.P.
Its:   Manager
By:   Summit Master Company, LLC
Its:   General Partner
By:  

/s/ Peter Chung

Name:   Peter Chung
Its:   Member


IN WITNESS WHEREOF , the parties hereto have executed this Fourth Amended and Restated Rights Agreement as of the day and year first above written.

 

PRIOR INVESTORS:

 

Mitsui & Co., Ltd.

By:  

/s/ Junichi Shibuta

Name:   Junichi Shibuta
Title:   General Manager, IT Innovation Div. I


IN WITNESS WHEREOF , the parties hereto have executed this Fourth Amended and Restated Rights Agreement as of the day and year first above written.

 

PRIOR INVESTORS:
Mitsui & Co. (U.S.A.), Inc.
By:  

/s/ Takashi Amino

Name:   Takashi Amino
Title:   General Manager, IT Business Dept.
  IT Business Division


IN WITNESS WHEREOF , the parties hereto have executed this Fourth Amended and Restated Rights Agreement as of the day and year first above written.

 

PRIOR INVESTORS:
Centillion Venture Capital Corp.
By:  

 

Name:  

 

Title:  

 


IN WITNESS WHEREOF , the parties hereto have executed this Fourth Amended and Restated Rights Agreement as of the day and year first above written.

 

PRIOR INVESTORS:
Very Positive Investments Ltd.
By:  

 

Name:  

 

Title:  


IN WITNESS WHEREOF , the parties hereto have executed this Fourth Amended and Restated Rights Agreement as of the day and year first above written.

 

KEY HOLDER:

/s/ Lee Chen

Lee Chen


EXHIBIT A

SCHEDULE OF INVESTORS

 

CyberTouch Investments, Inc.

99 Park Avenue III, Science Park

Hsinchu 308, Taiwan, R.O.C.

 

Lee Chen

19752 Versailles Way

Saratoga, CA 95070

 

Chiy Chen

12332 Viewoak Drive

Saratoga, CA 95070

 

Wei Chen

5116 Forest View Drive

San Jose, CA 95129

 

Wen H. Chiu

18615 Maude Avenue

Saratoga, CA 95070

 

LinLong Jiang

844 Talisman Drive

Sunnyvale, CA 94087

 

Frank Jiang

c/o CyberTouch Investments, Inc.

99 Park Avenue III, Science Park

Hsinchu 308, Taiwan, R.O.C.

 

Felix C. or Ruby C. Lin

7048 Huntsfield Court

San Jose, CA 95120

 

Lin Ma

39764 Potrero Drive

Newark, CA 94560

 

Peter Liu

14020 Shadow Oaks Way

Saratoga, CA 95070

 

Ming Xu

6181 Camino Verde Drive, Apt. P-6

San Jose, CA 95119

 

The Kwong Trust created on October 27, 1999

Raymond Wai-Kit Kwong & Emma Lim

Kwong, Trustees

101 First Street, PM#225

Los Altos, CA 94022

 

John Jokom

46965 Ocotillo Ct.

Fremont. CA 94539

 

Soo Bin Tan

2939 24 th Avenue

San Francisco, CA 94132

 

I Chan Lee

18615 Maude Avenue

Saratoga, CA 95070

 

Wen-Liang Hsu

45731 Vineyard Avenue

Fremont, CA 94539

 

Harbinger III Venture Capital Corp.

7F, No. 187, Tiding Blvd., Sec. 2, Neihu

Taipei, 114, Taiwan, R.O.C.

 

Catherine K. Sun

2939 24 th Avenue

San Francisco, CA

94132

 

Alex S. Wang & Suyang Tseng

12502 Beauchamps Lane

Saratoga, CA 95070

 

Kwun Nan Lin

1167 Wunderlich Drive

San Jose, CA 95129

 
 
 
 
 
 
 
 
 


Wensheng Sun

12155 Carol Lane

Saratoga, CA 95070

 

Shaofu Wu

Room 1603, Bldg. 81, #99, Zhongtan Rd.

Shanghai 210061, China

 

Li-Hua Wang

1074 Niguel Lane

San Jose, CA 95138

 

Centillion Venture Capital Corp.

4F, No. 9, Dehui Street

Taipei 10461, Taiwan

 

Centillion III Venture Capital Corp.

3F., No. 135, Jianguo North Road, Sec. 2

Taipei, 10484, Taiwan

 

Very Positive Investments Ltd.

3F., No. 135, Jianguo North Road, Sec. 2

Taipei, 10484, Taiwan

 

Franchaei Holding Ltd.

No. 12, Alley 338, Te-Hsing E. Rd.

Shih Lin District

Taipei, 111 Taiwan

 

Ronald W. & Alice B. Szeto Family Trust

2011 Calle Ricardo

Pleasanton, CA 94566

 

Daniel Chen & Koshyan Chen

1168 Quail Ridge Court

San Jose, CA 95120

 

Robert D. Cochran

2105 Woodside Road

Woodside, CA 94062

 

Yeung Ping Chau

51 Conduit Rd., G-9

Hong Kong, SAR

 

Hantech International Venture Capital Corporation

Suite 3201, 32F, International Trade Building

333, Keelung Road, Sec. 1

Taipei, Taiwan 110, R.O.C.

 

H&A Venture Capital Investment Corporation

Suite 3201, 32F, International Trade Building

333, Keelung Road, Sec. I Taipei,

Taiwan 110, R.O.C.

 

H&H Venture Capital Investment Corporation

Suite 3201, 32F, International Trade Building

333, Keelung Road, Sec. 1 Taipei,

Taiwan 110, R.O.C.

 

Enspire Capital Ltd.

30 Marsiling Industrial Estate Road 8

Singapore 739193

 

Miven Venture Partners, Fund 1, LLC

P.O. Box 19391

Irvine, CA 92623-9391

 

Sharon Hsing

19850 Lanark Lane

Saratoga, CA 95070

 

Silver Orchard Holdings Limited

7 th Floor, Sec. 2, 199 Chang An E. Rd.

Taipei, Taiwan R.O.C.

 

Mitsui & Co., Ltd. (IT Outsourcing Business Division) Ohtemachi 1-2-1, Chiyoda-ku

Tokyo 100-0004, Japan

 

China Investment and Development Co., Ltd.

3F, No. 245, Sec, 1, Durihua S. Rd.

Taipei 106, Taiwan R.O.C.

 
 
 
 
 
 
 
 
 


Marshall A. Smith

26535 Weston Drive

Los Altos Hills, CA

94022

 

Mitsui & Co. (U.S.A.), Inc.

535 Middlefield Road, Suite 100

Menlo Park, CA 94025

 

Grand Cathay Venture Capital Co., Ltd.

3F, No. 245, Sec. 1, Dunhua S. Rd.

Taipei 106, Taiwan R.O.C.

 

Grand Cathay Venture Capital II Co., Ltd.

3F, No. 245, Sec. 1, Dunhua S. Rd.

Taipei 106, Taiwan R.O.C.

 

Grand Cathay Venture Capital III Co., Ltd.

3F, No. 245, Sec. 1, Dunhua S. Rd.

Taipei 106, Taiwan R.O.C.

 

Ching Huang

635 Indigo Canyon Road

Chula Vista, CA 91911

 

Leo Chen

12332 Viewoak Drive

Saratoga, CA 95070

 

Hsiu-Yuan Lee

3F, No. 245, Sec. 1, Dunhua S. Rd

Taipei 106, Taiwan R.O.C.

 

Sara Chen

1168 Quail Ridge Court

San Jose, CA 95120

 

Andrew Chen

1168 Quail Ridge Court

San Jose, CA 95120

 

Chou Hsu-Lung

7F, 173, Sec. 2, Datong Rd. Sijhih City,

Taipei 221, Taiwan

 

Liangchi Lu

7F, No. 182-3, Heping East Road, Sec. 1

Taipei 106, Taiwan, R.O.C.

 

Juan-Chuan Chiang

4 th Fl., No. 6, Lane 39, Tien-Yu Street

Taipei 111, Taiwan, R.O.C.

 

Herman Lin

27940 Roble Blanco Court

Los Altos Hills, CA 94022

 

Pao-Tien Huang

No. 4, Alley 18, Lane 41, Chun-Ho Street

Taichung, Taiwan, R.O.C.

 

Tzeting Ouyang

6 th Floor, No. 121, Jen Ai Road, Sec. 3

Taipei 106, Taiwan, R.O.C.

Summit Partners Venture Capital Fund III-B, L.P.

c/o Summit Partners, L.P.

200 Middlefield Road, Suite 200

Menlo Park, CA 94025

Summit Partners Venture Capital Fund III-A, L.P.

c/o Summit Partners, L.P.

200 Middlefield Road, Suite 200 Menlo Park, CA 94025

Summit Investors I, LLC

c/o Summit Partners, L.P.

200 Middlefield Road, Suite 200

Menlo Park, CA 94025

 

Summit Investors I (UK), L.P.

c/o Summit Partners, L.P.

200 Middlefield Road, Suite 200

Menlo Park, CA 94025

 
 
 
 
 
 
 
 
 
 
 


SCHEDULE 1

NOTICE AND WAIVER/ELECTION OF

RIGHT OF FIRST REFUSAL

I do hereby waive or exercise, as indicated below, my rights of first refusal under the Fourth Amended and Restated Investors’ Rights Agreement dated as of June 27, 2013 (the “Agreement” ):

 

1. Waiver of ten (10) days’ notice period in which to exercise right of first refusal: (please check only one)

 

  (    ) WAIVE in full, on behalf of all Holders, the 10-day notice period provided to exercise my right of first refusal granted under the Agreement.

 

  (    ) DO NOT WAIVE the notice period described above.

 

2. Issuance and Sale of New Securities: (please check only one)

 

  (    ) WAIVE in full the right of first refusal granted under the Agreement with respect to the issuance of the New Securities.

 

  (    ) ELECT TO PARTICIPATE in $             ( please provide amount ) in New Securities proposed to be issued by A10 Networks, Inc., a California corporation, representing LESS than my pro rata portion of the aggregate of $[            ] in New Securities being offered in the financing.

 

  (    ) ELECT TO PARTICIPATE in $             in New Securities proposed to be issued by A10 Networks, Inc., a California corporation, representing my FULL pro rata portion of the aggregate of $[            ] in New Securities being offered in the financing.

 

  (    ) ELECT TO PARTICIPATE in my full pro rata portion of the aggregate of $[            ] in New Securities being made available in the financing AND, to the extent available, the greater of (x) an additional $             ( please provide amount ) or (y) my pro rata portion of any remaining investment amount available in the event other Major Series D Investors do not exercise their full rights of first refusal with respect to the $[            ] in New Securities being offered in the financing.

Date:                     

 

 

( Print investor name )


 

( Signature )

 

 

( Print name of signatory, if signing for an entity )

 

 

( Print title of signatory, if signing for an entity )

This is neither a commitment to purchase nor a commitment to issue the New Securities described above. Such issuance can only be made by way of definitive documentation related to such issuance. The company will supply you with such definitive documentation upon request or if you indicate that you would like to exercise your first offer rights in whole or in part.

Exhibit 5.1

 

LOGO

 

650 Page Mill Road

Palo Alto, CA 94304-1050

 

PHONE 650.493.9300

FAX 650.493.6811

www.wsgr.com

 

 

March 10, 2014

 

A10 Networks, Inc.

3 West Plumeria Drive

San Jose, CA 95134

 

Re:         Registration Statement on Form S-1

 

Ladies and Gentlemen:

 

This opinion is furnished to you in connection with the Registration Statement on Form S-1 (Registration No. 333-194015), as amended (the “ Registration Statement ”), filed by A10 Networks, Inc. (the “ Company ”) with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of 12,500,000 shares of the Company’s common stock, $0.00001 par value per share (the “ Shares ”), of which up to 9,000,000 shares will be issued and sold by the Company and up to 3,500,000 shares will be sold by certain selling stockholders (the “ Selling Stockholders ”) (including up to 1,875,000 shares to be sold by certain selling stockholders upon exercise of an option granted to the underwriters by such selling stockholders). We understand that the Shares are to be sold to the underwriters for resale to the public as described in the Registration Statement and pursuant to an underwriting agreement, substantially in the form filed as an exhibit to the Registration Statement, to be entered into by and among the Company, the Selling Stockholders and the underwriters (the “ Underwriting Agreement ”).

 

We are acting as counsel for the Company in connection with the sale of the Shares by the Company and the Selling Stockholders. In such capacity, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity with the originals of all documents submitted to us as copies, the authenticity of the originals of such documents and the legal competence of all signatories to such documents.

 

We express no opinion herein as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware (including the statutory provisions and all applicable judicial decisions interpreting those laws) and the federal laws of the United States of America.

 

On the basis of the foregoing, we are of the opinion, that (1) the Shares to be issued and sold by the Company have been duly authorized and, when such Shares are issued and paid for in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable, and (2) the Shares to be sold by the Selling Stockholders have been duly authorized and are validly issued, fully paid and nonassessable.

 

AUSTIN    BEIJING    BRUSSELS    GEORGETOWN , DE    HONG KONG    LOS ANGELES    NEW YORK

PALO ALTO    SAN DIEGO    SAN FRANCISCO    SEATTLE    SHANGHAI    WASHINGTON , DC


LOGO

March 10, 2014

Page 2

 

We consent to the use of this opinion as an exhibit to the Registration Statement, and we consent to the reference of our name under the caption “Legal Matters” in the prospectus forming part of the Registration Statement.

 

Very truly yours,

/s/ Wilson Sonsini Goodrich & Rosati

WILSON SONSINI GOODRICH & ROSATI

Professional Corporation

Exhibit 10.1

A10 NETWORKS, INC.

INDEMNIFICATION AGREEMENT

This Indemnification Agreement (this “ Agreement ”) is dated as of [            , 20    ] (the “ Effective Date ”), and is between A10 Networks, Inc., a Delaware corporation (the “ Company ”), and [ insert name of indemnitee ] (“ Indemnitee ”).

RECITALS

A. Indemnitee’s service to the Company substantially benefits the Company.

B. Individuals are reluctant to serve as directors or officers of corporations or in certain other capacities unless they are provided with adequate assurance of protection through insurance or indemnification against the risks of claims and actions against them arising out of such service.

C. Indemnitee does not regard the protection currently provided by applicable law, the Company’s governing documents and any insurance as adequate under the present circumstances, and Indemnitee may not be willing to serve as a director or officer without additional protection.

D. In order to induce Indemnitee to continue to provide services to the Company, it is reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify, and to advance expenses on behalf of, Indemnitee as permitted by applicable law.

E. This Agreement is a supplement to and in furtherance of the indemnification provided in the Company’s certificate of incorporation, bylaws and applicable law, and any resolutions adopted pursuant thereto, and this Agreement shall not be deemed a substitute therefor, nor shall this Agreement be deemed to limit, diminish or abrogate any rights of Indemnitee thereunder.

The parties therefore agree as follows:

1. Definitions.

(a) A “ Change in Control ” shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:

(i) Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing [thirty percent (30%)] or more of the combined voting power of the Company’s then outstanding securities;

(ii) Change in Board Composition. During any period of two (2) consecutive years (not including any period prior to the Effective Date), individuals who at the beginning of such period constitute the Company’s board of directors, and any new directors (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the board of directors or nomination for election by the Company’s stockholders was approved by a vote of at least [a majority] of the directors then-still in office, who either were directors at the beginning of the period or whose election or nomination for election was


previously so approved, cease for any reason to constitute at least a majority of the members of the Company’s board of directors;

(iii) Corporate Transactions. A merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) [at least two thirds (2/3)] of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation [and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity];

(iv) Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and

(v) Other Events. Any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934, as amended, whether or not the Company is then subject to such reporting requirement.

For purposes of this Section 1(a), the following terms shall have the following meanings:

(1) “ Person ” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended; provided, however, that “ Person ” shall exclude (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.

(2) “ Beneficial Owner ” shall have the meaning given to such term in Rule 13d-3 under the Securities Exchange Act of 1934, as amended; provided, however, that “ Beneficial Owner ” shall exclude any Person otherwise becoming a Beneficial Owner by reason of (i) the stockholders of the Company approving a merger of the Company with another entity or (ii) the Company’s board of directors approving a sale of securities by the Company to such Person.

(b) “ Corporate Status ” describes the status of a person who is or was a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company or any other Enterprise.

(c) “ DGCL ” means the General Corporation Law of the State of Delaware.

(d) “ Disinterested Director ” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

(e) “ Enterprise ” means the Company and any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary.

(f) “ Expenses ” include all attorneys’ fees, retainers, court costs, transcript costs, fees and costs of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges,

 

-2-


postage, delivery service fees, and all other disbursements or expenses actually and reasonably, and of the types customarily, incurred by Indemnitee, or on his or her behalf, in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond or other appeal bond or their equivalent, and (ii) for purposes of Section 12(d), Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company [at any time]. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.

(g) “ Independent Counsel ” means a law firm, or a partner or member of a law firm, that is experienced in matters of corporation law and neither currently is, as of the time the request for indemnification is made nor in the previous five (5) years has been, retained to represent (i) the Company or Indemnitee in any matter material to either such party (other than as Independent Counsel with respect to matters concerning Indemnitee under this Agreement, or other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “ Independent Counsel ” shall not include any person who, under the applicable standards of professional conduct then-prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

(h) “ Proceeding ” means any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or proceeding, or claim, issue or matter therein, whether brought in the right of the Company, a Subsidiary or otherwise, and whether of a civil, criminal, administrative or investigative nature, including any appeal therefrom, and including without limitation any such Proceeding pending as of the Effective Date, in which Indemnitee was, is or will be involved as a party, a potential party, a non-party witness or otherwise by reason of (i) the fact that Indemnitee is or was a director or officer of the Company or of a Subsidiary, or (ii) the fact or assertion that he or she is or was serving at the request of the Company or of a Subsidiary as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company, a Subsidiary or any other Enterprise, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification or advancement of expenses can be provided under this Agreement.

(i) “ Subsidiary ” means any entity of which more than 50% of the outstanding voting securities is owned directly or indirectly by the Company.

(j) Reference to “ other enterprises ” shall include employee benefit plans; references to “ fines ” shall include any excise taxes assessed on a person with respect to any employee benefit plan; references to “ serving at the request of the Company ” shall include any service as a director, officer, employee or agent of the Company or of a Subsidiary which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he or she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “ not opposed to the best interests of the Company ” as referred to in this Agreement.

2. Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 2 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be indemnified to the fullest extent permitted by

 

-3-


applicable law against all Expenses, judgments, fines and amounts paid in settlement [(if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld)] in connection with such Proceeding, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.

3. Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses in connection with such Proceeding, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 3 in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as the Delaware Court of Chancery shall deem proper.

4. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the extent that Indemnitee is a party to or a participant in and is successful (on the merits or otherwise) in defense of any Proceeding or any claim, issue or matter therein, the Company shall indemnify Indemnitee against all Expenses in connection therewith. To the extent permitted by applicable law, if Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, in defense of one or more but fewer than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses in connection with (a) each successfully resolved claim, issue or matter and (b) to the fullest extent permitted by applicable law, any claim, issue or matter related to any such successfully resolved claim, issuer or matter. For purposes of this Section 4, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

5. Indemnification for Expenses of a Witness. To the extent that Indemnitee is, by reason of his or her Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified to the extent permitted by applicable law against all Expenses in connection therewith.

6. Additional Indemnification.

(a) Notwithstanding any limitation in Sections 2, 3 or 4, above, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement [(if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld)] in connection with the Proceeding.

(b) For purposes of Section 6(a), the meaning of the phrase to the fullest extent permitted by applicable law shall include, but not be limited to:

(i) the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL; and

 

-4-


(ii) the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors.

7. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity or provide any benefit to Indemnitee under this Agreement or otherwise, in connection with any Proceeding (or any part of any Proceeding):

(a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid[, subject to any subrogation rights set forth in Section 15] 1 ;

(b) for an accounting or disgorgement of profits pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements);

(c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act ”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements);

(d) initiated by Indemnitee, including against the Company or its directors, officers, employees, agents or other indemnitees, unless (i) the Company’s board of directors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (iii) otherwise authorized in Section 12(d) or (iv) otherwise required by applicable law or the Company’s bylaws; or

(e) if prohibited by applicable law.

8. Advances of Expenses. To the extent indemnity is provided pursuant to Sections 2, 3 or 4, above, or otherwise in this Agreement, the Company shall advance the Expenses incurred by Indemnitee in connection with any such Proceeding, and such advancement shall be made as soon as reasonably practicable, but in any event no later than [30] days, after the receipt by the Company of a written statement or statements requesting such advances from time to time (which shall include invoices received by Indemnitee in connection with such Expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditure made that would cause Indemnitee to waive any privilege accorded by applicable law shall not be included with the invoice). Reimbursements hereunder shall be deemed advances, and shall be unsecured and interest free and made without regard to Indemnitee’s ability to repay such advances. Indemnitee hereby undertakes to repay any such advance to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company. This Section 8 shall not apply to prevent reimbursement to the extent advancement is prohibited by law, or with respect to any Proceeding for which indemnity is not permitted under this Agreement, but shall apply to any Proceeding referenced in Section 7(b) or 7(c) prior to a determination that Indemnitee is not entitled to be indemnified by the Company.

 

1   Note to Draft : Delete if Section 15 is deleted due to there being no Secondary Indemnitor.

 

-5-


9. Procedures for Notification and Defense of Claim.

(a) Indemnitee shall notify the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification or advancement of Expenses as soon as reasonably practicable following the receipt by Indemnitee of notice thereof. The written notification to the Company shall include, in reasonable detail, a description of the nature of the Proceeding and the facts underlying the Proceeding. The failure by Indemnitee to notify the Company will not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise than under this Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights, except to the extent that such failure or delay materially prejudices the Company.

(b) If, at the time of the receipt of a written notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ liability insurance in effect, the Company shall give prompt notice of the commencement of the Proceeding to such insurers in accordance with the procedures set forth in the applicable policies. The Company shall thereafter take all commercially-reasonable actions to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.

(c) In the event the Company may be obligated to make any indemnity in connection with a Proceeding, the Company shall be entitled to assume the defense of such Proceeding with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, conditioned or delayed, upon the delivery to Indemnitee of written notice of the Company’s election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee for any fees or expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. Notwithstanding the Company’s assumption of the defense of any such Proceeding, the Company shall be obligated to pay the fees and expenses of Indemnitee’s counsel to the extent (i) the employment of counsel by Indemnitee is authorized by the Company, (ii) counsel for the Company or Indemnitee shall have reasonably concluded that there is a conflict of interest between the Company and Indemnitee in the conduct of any such defense, such that Indemnitee needs to be separately represented, (iii) the fees and expenses are non-duplicative and reasonably incurred in connection with Indemnitee’s role in the Proceeding despite the Company’s assumption of the defense, (iv) the Company is not financially or legally able to perform its defense obligations, or (v) the Company shall not have retained, or shall not continue to retain, such counsel to defend such Proceeding; provided that Indemnitee’s counsel conducts the defense of such Proceeding actively and diligently. The Company shall have the right to conduct such defense as it sees fit in its sole discretion. Regardless of any provision in this Agreement, Indemnitee shall have the right to employ counsel in any Proceeding at Indemnitee’s personal expense. The Company shall not be entitled, without the consent of Indemnitee, to assume the defense of any claim brought by or in the right of the Company.

(d) Indemnitee shall give the Company such information and cooperation in connection with the Proceeding as may be reasonably appropriate.

(e) The Company shall not be liable to indemnify Indemnitee for any settlement of any Proceeding (or any part thereof) without the Company’s prior written consent, which shall not be unreasonably withheld.

(f) The Company shall have the right to settle any Proceeding (or any part thereof) without the consent of Indemnitee.

 

-6-


10. Procedures upon Application for Indemnification.

(a) To obtain indemnification, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and as is reasonably necessary or as the Company may reasonably request to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of the Proceeding. The Company shall, as soon as reasonably practicable after receipt of such a request for indemnification, advise the board of directors that Indemnitee has requested indemnification. Any delay in providing the request will not relieve the Company from its obligations under this Agreement, except to the extent such failure is prejudicial.

(b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Company’s board of directors, a copy of which shall be delivered to Indemnitee or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Company’s board of directors, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Company’s board of directors, (C) if there are no such Disinterested Directors, or if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Company’s board of directors, a copy of which shall be delivered to Indemnitee, or (D) if so directed by the Company’s board of directors, by the stockholders of the Company. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making the determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company, to the extent permitted by applicable law.

(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 10(b), the Independent Counsel shall be selected as provided in this Section 10(c). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Company’s board of directors, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Company’s board of directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided , however , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel,” as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof and (ii) the final disposition of the Proceeding, the parties have not agreed upon an Independent Counsel, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and for the appointment as Independent Counsel of

 

-7-


a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 10(b), above. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 12(a), below, the Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then-prevailing).

(d) The Company agrees to pay the reasonable fees and expenses of any Independent Counsel and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

11. Presumptions and Effect of Certain Proceedings.

(a) In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall, to the fullest extent not prohibited by applicable law, presume that Indemnitee is entitled to indemnification if Indemnitee has submitted a request for indemnification in accordance with Section 10(a) of this Agreement, and the Company shall, to the fullest extent not prohibited by applicable law, have the burden of proof to overcome that presumption in connection with the making by such person, persons or entity of any determination contrary to that presumption.

(b) The termination of any Proceeding, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement or as required by applicable law) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.

(c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith to the extent Indemnitee relied in good faith on (i) the records or books of account of the Enterprise, including financial statements, (ii) information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for the Enterprise or its board of directors, or counsel selected by any committee of the board of directors, or (iv) information or records given or reports made to the Enterprise by an independent certified public accountant, an appraiser, investment banker or other expert selected with reasonable care by the Enterprise or its board of directors or any committee of the board of directors (including consultants or advisors formally engaged by the board or committee). The provisions of this Section 11(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

(d) Neither the knowledge, actions nor failure to act of any other director, officer, agent or employee of the Enterprise shall be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

12. Remedies of Indemnitee.

(a) Subject to Section 12(e), in the event that (i) a determination is made pursuant to Section 10, above, that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8, above, or 12(d), below, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 10, above, within 90 days after the later of the receipt by the Company of the request for indemnification or the final disposition of the Proceeding, (iv) payment of indemnification pursuant to this Agreement is not made (A) within ten (10) days

 

-8-


after a determination has been made that Indemnitee is entitled to indemnification or (B) with respect to indemnification pursuant to Sections 4 or 5, above, and 12(d), below, within 30 days after receipt by the Company of a written request therefor, or (v) the Company or any other person or entity takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding to deny, or to recover from, Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication in a court of competent jurisdiction of his or her entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration with respect to his or her entitlement to such indemnification or advancement of Expenses, to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his or her rights under Section 4, above. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration in accordance with this Agreement.

(b) Neither (i) the failure of the Company, its board of directors, any committee or subgroup of the board of directors, Independent Counsel or stockholders to have made a determination that indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor (ii) an actual determination by the Company, its board of directors, any committee or subgroup of the board of directors, Independent Counsel or stockholders that Indemnitee has not met the applicable standard of conduct, may be asserted or offered into evidence as a defense to the action or to create a presumption that Indemnitee has or has not met the applicable standard of conduct. In the event that a determination shall have been made pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration, on the merits, and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 12, the Company shall, to the fullest extent not prohibited by applicable law, have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.

(c) To the fullest extent not prohibited by applicable law, the Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement. If a determination shall have been made pursuant to Section 10, above, that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statements not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.

(d) To the extent not prohibited by applicable law, the Company shall indemnify Indemnitee against all Expenses that are incurred by Indemnitee in connection with any action for indemnification or advancement of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company to the extent Indemnitee is successful in such action, and, if requested by Indemnitee, the Company shall (as soon as reasonably practicable, but in any event no later than 60 days, after receipt by the Company of a written request therefor) advance such Expenses to Indemnitee, subject to the provisions of Section 8, above.

 

-9-


(e) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification shall be required to be made prior to the final disposition of the Proceeding.

13. Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amounts incurred by Indemnitee, whether for Expenses, judgments, fines or amounts paid or to be paid in settlement, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the events and transactions giving rise to such Proceeding; and (ii) the relative fault of Indemnitee and the Company (and its other directors, officers, employees and agents) in connection with such events and transactions.

14. Non-exclusivity; No Limitation on Indemnity Rights. The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of, or in any manner limit, any other rights to which Indemnitee may at any time be entitled under applicable law, the Company’s certificate of incorporation or bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Company’s certificate of incorporation and bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change, subject to the restrictions expressly set forth herein or therein. Except as expressly set forth herein, no right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. Except as expressly set forth herein, the assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

15. [ Primary Responsibility. The Company acknowledges that Indemnitee has certain rights to indemnification and advancement of expenses provided by [ insert name of fund ] [and certain affiliates thereof] ([collectively,] the “ Secondary Indemnitor[s] ”). The Company agrees that, as between the Company and the Secondary Indemnitor[s], the Company is primarily responsible for amounts required to be indemnified or advanced under the Company’s certificate of incorporation or bylaws or this Agreement and any obligation of the Secondary Indemnitor[s] to provide indemnification or advancement for the same amounts is secondary to those Company obligations. To the extent not in contravention of any insurance policy or policies providing liability or other insurance for the Company or any director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company or any other Enterprise, the Company waives any right of contribution or subrogation against the Secondary Indemnitor[s] with respect to the liabilities for which the Company is primarily responsible under this Section 15. In the event of any payment by the Secondary Indemnitor[s] of amounts otherwise required to be indemnified or advanced by the Company under the Company’s certificate of incorporation or bylaws or this Agreement, the Secondary Indemnitor[s] shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee for indemnification or advancement of expenses under the Company’s certificate of incorporation or bylaws or this Agreement or, to the extent such subrogation is unavailable and contribution is found to be the applicable remedy, shall have a right of contribution with respect to the amounts paid. The Secondary Indemnitor[s] [are][is an] express third-party [beneficiaries][beneficiary] of the terms of this Section 15.] 2

 

2   Note to Draft : If there is no Secondary Indemnitor for the officer or director, delete this section and replace with “ Reserved.”

 

-10-


16. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received payment for such amounts under any insurance policy, contract, agreement or otherwise[, subject to any subrogation rights set forth in Section 15] 3 .

17. Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, trustees, general partners, managing members, officers, employees, agents or fiduciaries of the Company or any other Enterprise, Indemnitee shall be covered by such policy or policies to the same extent as the most favorably insured persons under such policy or policies in a comparable position.

18. Subrogation. In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

19. Services to the Company. Indemnitee agrees to serve as a director or officer of the Company or, at the request of the Company, as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of another Enterprise, for so long as Indemnitee is duly elected or appointed or until Indemnitee tenders his or her resignation or is removed from such position. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee. Indemnitee specifically acknowledges that any employment with the Company (or any of its subsidiaries or any Enterprise) is at will, and Indemnitee may be discharged at any time for any reason, with or without cause, with or without notice, except as may be otherwise expressly provided in any executed, written employment contract between Indemnitee and the Company (or any of its subsidiaries or any Enterprise), any existing formal severance policies adopted by the Company’s board of directors or, with respect to service as a director or officer of the Company, the Company’s certificate of incorporation or bylaws or the DGCL. No such document shall be subject to any oral modification thereof.

20. Duration. This Agreement shall commence as of the Effective Date and continue until and terminate upon the later of (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a director or officer of the Company or a Subsidiary, or as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of any other Enterprise, as applicable, or (b) one (1) year after the final termination of any Proceeding, including any appeal, then-pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to Section 12, above, relating thereto.

21. Successors. This Agreement shall be binding upon the Company and its successors and assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company, and shall inure to the benefit of Indemnitee and Indemnitee’s heirs, executors and administrators. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by written agreement, expressly to assume and agree to perform this Agreement in the

 

3  

Note to Draft : Delete if Section 15 is deleted due to there being no Secondary Indemnitor.

 

-11-


same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

22. Severability. Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation of applicable law. The Company’s inability, pursuant to court order or other applicable law, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (ii) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (iii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

23. Enforcement. The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director or officer of the Company.

24. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided , however , that this Agreement is a supplement to and in furtherance of the Company’s obligations to Indemnitee, as provided by its certificate of incorporation and bylaws, and by applicable law.

25. Modification and Waiver. No supplement, modification or amendment to this Agreement shall be binding unless and only to the extent executed in writing by the parties hereto. No amendment, alteration or repeal of this Agreement shall adversely affect any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. No waiver of any of the provisions of this Agreement shall constitute or be deemed a waiver of any other provision of this Agreement nor shall any waiver constitute a continuing waiver.

26. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or electronic mail or otherwise delivered by hand, messenger or courier service addressed:

(a) if to Indemnitee, to Indemnitee’s address, facsimile number or electronic mail address as shown on the signature page of this Agreement or in the Company’s records, as may be updated in accordance with the provisions hereof; or

(b) if to the Company, to the attention of the Chief Executive Officer or Chief Financial Officer of the Company at 3 West Plumeria Drive, San Jose, CA 95134, or at such other current address as the Company shall have furnished to Indemnitee, with copies (which shall not constitute notice) to Mark Baudler, Esq. or Herb Fockler, Esq., Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Road, Palo Alto, California 94304.

 

-12-


Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given (i) if delivered by hand, messenger or courier service, when delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid, specifying next-business-day delivery, one business day after deposit with the courier), (ii) if sent via mail, at the earlier of its receipt or five days after the same has been deposited in a regularly-maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid, or (iii) if sent via facsimile, upon confirmation of facsimile transfer or, if sent via electronic mail, upon confirmation of delivery when directed to the relevant electronic mail address, if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day.

27. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 12(a), above, or by the Company or Indemnitee pursuant to a written agreement between the Company and Indemnitee providing for such, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court of Chancery, and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court of Chancery for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) appoint, to the extent such party is not otherwise subject to service of process in the State of Delaware, Corporation Service Company, Wilmington, Delaware, as its agent in the State of Delaware as such party’s agent for acceptance of legal process in connection with any such action or proceeding against such party with the same legal force and validity as if served upon such party personally within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court of Chancery, and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court of Chancery has been brought in an improper or inconvenient forum.

28. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature and in counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

29. Captions. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

( signature page follows )

 

-13-


The parties are signing this Indemnification Agreement as of the date stated in the introductory sentence.

 

A10 NETWORKS, INC.

 

(Signature)

 

(Print name)

 

(Title)

[INSERT INDEMNITEE NAME]

 

(Signature)

 

(Print name)

 

(Street address)

 

(City, State and ZIP)

Exhibit 10.2

RAKSHA NETWORKS, INC.

2004 STOCK PLAN

 

Section 1. Purpose

The purpose of the Plan is to offer selected employees, directors and consultants an opportunity to acquire a proprietary interest in the success of the Company, to encourage such selected persons to remain in the employ of the Company and to attract new employees by allowing such persons to purchase Shares of the Company’s Common Stock. The Plan provides for the grant of Options to purchase Shares. Options granted under the Plan may be Incentive Stock Options or Nonstatutory Stock Options. Stock Purchase Rights may also be granted under the Plan.

 

Section 2. Definitions

(a) “Board means the Board of Directors of the Company.

(b) “Code means the Internal Revenue Code of 1986, as amended.

(c) “Committee means a committee of the Board of Directors which is authorized to administer the Plan under Section 4 herein. In the event the Company becomes subject to Section 16 of the Exchange Act, the Committee shall have a membership composition which will enable the Plan to qualify under Rule 16b-3 with regard to Options granted to persons who are subject to Section 16 of the Exchange Act.

(d) “Common Stock means the Common Stock of the Company.

(e) “Company means Raksha Networks, Inc.

(f) “Consultant means any person, including an advisor, who is engaged by the Company or Subsidiary to render consulting or advisory services and is compensated for such services.

(g) “Continuous Status as an Employee means the absence of any interruption or termination of the employment relationship by the Company or any Subsidiary. Continuous Status as an Employee shall not be considered interrupted in the case of: sick leave, military leave or any other leave of absence approved by the Board, provided that such leave is for a period of not more than ninety (90) days, unless reemployment upon the expiration of such leave is guaranteed by contract or statute, or unless provided otherwise pursuant to Company policy adopted from time to time; or in the case of transfers between locations of the Company or between the Company, its Subsidiaries or its successor.

(h) “Employee means any person, including officers and directors, employed by the Company or Subsidiary of the Company. The payment of a director’s fee by the Company shall not be sufficient to constitute “employment by the Company.


(i) “Exchange Act means the Securities Exchange Act of 1934, as amended.

(j) “Fair Market Value means, as of any date, the value of Common Stock determined as follows:

(i) If the Common Stock is listed on any established stock exchange or a national market system including without limitation the National Market System of the National Association of Securities Dealers, Inc. Automated Quotation ( “Nasdaq ) System, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported, as quoted on such system or exchange for the last market trading day prior to the time of determination) as reported in the Wall Street Journal or such other source as the Administrator deems reliable;

(ii) If the Common Stock is quoted on the Nasdaq System (but not on the Nasdaq National Market thereof) or regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value shall be the mean between the high and low asked prices for the Common Stock; or

(iii) In the absence of an established market for the Common Stock, the Fair Market Value thereof shall be determined in good faith by the Board.

(k) “Incentive Stock Option means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.

(l) “Nonstatutory Stock Option means an Option not intended to qualify as an Incentive Stock Option.

(m) “Option means a stock option granted pursuant to the Plan that entitles the holder to purchase Shares.

(n) “Optioned Stock means the Common Stock subject to an Option.

(o) “Optionee means an Employee or Consultant who receives an Option.

(p) “Plan means the Raksha Networks, Inc. 2004 Stock Plan, as amended from time to time.

(q) “Purchaser means an Employee or Consultant who exercises a Stock Purchase Right.

(r) “Restricted Stock means Shares purchased pursuant to the grant of a Stock Purchase Right.

(s) “Share means a share of the Common Stock, as adjusted in accordance with Section 13 of the Plan.

 

-2-


(t) “Stock Purchase Right means the right to purchase Restricted Stock granted pursuant to Section 11 of the Plan.

(u) “Subsidiary means any corporation of which the Company and/or one or more other Subsidiaries own not less than 50 percent of the total combined voting power of all classes of outstanding stock of such corporation. A corporation that attains the status of a Subsidiary on a date after the adoption of the plan shall be considered a Subsidiary commencing as of such date.

(v) “Tax Date means the date upon which the withholding tax obligation is determined pursuant to Section 12(b) herein.

 

Section 3. Stock Subject To The Plan

Subject to the provisions of Section 13 of the Plan, the maximum aggregate number of shares which may be optioned and sold under the Plan is 8,700,000 Shares of Common Stock. The shares may be authorized, but unissued, or reacquired Common Stock. If an Option or Stock Purchase Right should expire or become unexercisable for any reason without having been exercised in full, the unpurchased Shares which were subject thereto shall, unless the Plan shall have been terminated, become available for future grant under the Plan. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan.

 

Section 4. Administration.

(a) Committee Membership . The Plan shall be administered by the Committee, which shall consist of members of the Board. The members of the Committee shall be appointed by the Board. If no Committee has been appointed, the entire Board shall constitute the Committee.

(b) Powers of the Committee . Subject to the provisions of the Plan and the specific duties delegated by the Board, the Committee shall have full authority and discretion to take the following actions:

(i) to determine the Fair Market Value of the Common Stock;

(ii) to select the officers, Consultants and Employees to whom Options and Stock Purchase Rights may from time to time be granted under the Plan;

(iii) to determine whether and to what extent Options and Stock Purchase Rights or any combination thereof, are granted under the Plan;

(iv) to determine the number of Shares to be covered by each such award granted hereunder;

(v) to approve forms of agreement for use under the Plan;

 

-3-


(vi) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any award granted hereunder including, but not limited to, the share price and any restriction or limitation, based in each case on such factors as the Committee shall determine in its sole discretion;

(vii) to determine the terms and restrictions applicable to Stock Purchase Rights and the Restricted Stock purchased by exercising such Stock Purchase Rights; and

(viii) to make any other such determinations with respect to awards under the Plan as it shall deem appropriate.

(c) Effect of Committee’s Decision . All decisions, determinations and interpretations of the Committee shall be final and binding on all Optionees and Purchasers and any other holders of any Options or Stock Purchase Rights.

 

Section 5. Eligibility.

(a) General Rule . Nonstatutory Stock Options and stock Purchase Rights may be granted to Employees and Consultants. Incentive Stock Options may be granted only to Employees. An Employee or Consultant who has been granted an Option or Stock Purchase Right may, if he is otherwise eligible, be granted an additional Option, Options, Stock Purchase Right or Rights.

(b) Stock Option Agreement . Each grant of an Option under the Plan shall be evidenced by a stock option agreement between the Optionee and the Company. All stock option agreements shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions which are not inconsistent with the Plan and which the Committee deems appropriate. The provisions of the various stock option agreements entered into under the Plan are not required to be identical.

(c) Incentive Stock Option Limitation . Each Option shall be designated in the written option agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designations, to the extent that the aggregate Fair Market Value of the Shares with respect to which Options designated as Incentive Stock Options are exercisable for the first time by any Optionee during any calendar year (under all plans of the Company or any Parent or Subsidiary) exceeds $100,000, such excess Options shall be treated as Nonstatutory Stock Options.

(d) Time of Granting Options . The date of grant of an Option shall, for all purposes, be the date on which the Committee makes the determination granting such Option, or such other date as is determined by the Board. Notice of the determination shall be given to each Employee or Consultant to whom an Option is so granted within a reasonable time after the date of such grant.

 

Section 6. Term of Plan.

 

-4-


The Plan shall become effective on the date of its adoption by the Board subject to its approval by the shareholders of the Company as described in Section 17 of the Plan. In the event that the shareholders fail to approve the Plan within twelve (12) months after its adoption by the Board, any Options or Stock Purchase Rights granted during such period shall be null and void. The Plan shall continue in effect for a term of ten (10) years unless sooner terminated under Section 14 of the Plan.

 

Section 7. Term of Option.

The term of each Option shall be the term stated in the Optionee’s option agreement; provided however, the term shall be no more than ten (10) years from the date of grant thereof or such shorter term as may be provided in the option agreement. However, in the case of an Option granted to an Optionee who, at the time the Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Subsidiary, the term of the Option shall be five (5) years from the date of grant thereof or such shorter term as may be provided in the option agreement.

 

Section 8. Exercise Price and Consideration.

(a) Board Determination . With respect to each Option, the per share exercise price for the Shares shall be determined by the Board.

(b) Incentive Stock Options . In the case of an Incentive Stock Option, the exercise price per Share shall be not less than 100% of the Fair Market Value of such Share on the date of grant. Notwithstanding the above, if an Incentive Stock Option is granted to an Employee who owns more than ten percent of the total combined voting power of all classes of stock of the Company or any Subsidiary, the exercise price per Share shall be not less than 110% of the Fair Market Value of such Share on the date of grant.

(c) Nonstatutory Stock Options . The exercise price per Share of a Nonstatutory Stock Option shall not be less than 85% of the Fair Market Value of such Share on the date of grant. Notwithstanding the above, if a Nonstatutory Stock Option is granted to a person who owns more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any Subsidiary, the exercise price per Share shall be not less than 110% of the Fair Market Value of such Share on the date of grant.

(d) Consideration . The consideration to be paid for Shares issued upon the exercise of an Option and the method of payment for such Shares shall be determined by the Committee and, in the case of an Incentive Stock Option, shall be determined at the time of grant. The consideration to purchase Shares may consist of, cash, check, recourse or nonrecourse promissory note, the surrender of other Shares, or any combination of the foregoing methods of payment. In the case where the exercise price is paid by the surrender of Shares, the Shares surrendered must (i) have been owned by the Optionee for more than six months on the date of surrender or were not acquired, directly or

 

-5-


indirectly, from the Company, and (ii) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the new Shares to be acquired.

 

Section 9. Exercise of Option.

(a) Procedure for Exercise . Any Option granted hereunder shall be exercisable at such times and under such conditions as determined by the Board and as permissible under the terms of the Plan, but in no case at a rate of less than 20% per year over five (5) years from the date of the Option is granted. An Option may not be exercised for a fraction of a Share. An Option shall be deemed to be exercised when written notice of such exercise has been given to the Company in accordance with the terms of the Option and full payment for the Shares with respect to which the Option is exercised has been received by the Company. Until the issuance of the stock certificate evidencing such Shares, no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option, no adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided in Section 13 of the Plan.

(b) Termination of Employment . In the event of termination of an Optionee’s consulting relationship or Continuous Status as an Employee with the Company, such Optionee may within ninety (90) days after the date of such termination (or such other period as set forth in the Option Agreement, but in no event later than the expiration date of the term of such Option as set forth in the Option Agreement), exercise the Option to the extent that Optionee was entitled to exercise it at the date of such termination. To the extent that Optionee was not entitled to exercise the Option at the date of such termination, or if Optionee does not exercise such Option to the extent so entitled within the time specified herein, the Option shall terminate.

(c) Disability of Optionee . Notwithstanding the provisions of Section 9(b) above, if an Optionee’s Consulting relationship or Continuous Status as an Employee is terminated as a result of disability (as determined by the Board in accordance with the policies of the Company), Optionee may within six (6) months from the date of such termination (or such other longer period as set forth in the Option Agreement, but in no event later than the expiration date of the term of such Option as set forth in the Option Agreement), exercise the Option to the extent otherwise entitled to exercise it at the date of such termination. To the extent that Optionee was not entitled to exercise the Option at the date of termination, or if Optionee does not exercise such Option to the extent so entitled within the time specified herein, the Option shall terminate.

(d) Death of Optionee . In the event of the death of an Optionee, the Option may be exercised within twelve (12) months following the date of death, (but in no event later than the expiration date of the term of such Option as set forth in the Option Agreement), by the Optionee’s estate or by a person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent the Optionee was entitled to exercise the Option at the date of death. To the extent that Optionee was not entitled to exercise the Option at the date of termination, or if Optionee does not exercise such Option to the extent so entitled within the time specified herein, the Option shall terminate.

 

-6-


(e) Rule 16b-3 . Options granted to persons subject to Section 16(b) of the Exchange Act must comply with Rule 16b-3 and shall contain such additional conditions or restrictions as may be required thereunder to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions.

 

Section 10. Right of First Refusal.

(a) Right of First Refusal . Unless the Committee determines otherwise, all Shares acquired under the Plan by an Optionee or Purchaser (both being referred to herein as Holder) shall be subject to the right of first refusal set forth in this Section 10. Before any Shares may be sold or transferred (including transfer by operation of law other than as excepted pursuant to Section 10(e) hereof), Holder must first obtain the written consent of the Company. If such written consent is not given, then the Company shall have a right of first refusal to purchase all, but not less than all, of the Shares for the same price and, to the extent practicable, on substantially the same terms and conditions offered to such prospective purchaser, in accordance with the procedures set forth below.

(b) Purchase Price . If the proposed price per share is to be other than in cash, then an equivalent cash value shall be determined in good faith by the Board. If a transfer other than a voluntary sale is proposed to be made, then the price per Share for purposes of the right of first refusal shall be determined by the mutual agreement of Holder and the Company or, if no agreement can be reached, the price shall be the fair market value of such shares, as determined in good faith by the Board.

(c) Offer Notice . Prior to any sale or transfer of any Shares, Holder, or the legal representative of Holder, shall promptly deliver to the Secretary of the Company a written notice of the price and other terms and conditions of the offer by the prospective purchaser, the identity of the prospective purchaser, and, in the case of a sale, Holder’s bona fide intention to sell or dispose of such shares together with a copy of a written agreement between Holder and the prospective purchaser conditioned only upon the satisfaction of the procedures set forth in this right of first refusal. If the Company does not give its written consent to such transfer, then the Company (or its assignees) shall, for thirty (30) days after such notice from Holder, have the right under this Section 10 to purchase all such Shares, as set forth herein.

(d) Holder’s Right to Transfer . After the expiration of the Rights of First Refusal, or upon the written consent of the Company to the proposed transfer, Holder may sell or transfer the Shares specified in the notice to the Company, on the terms and conditions specified in such notice; provided, however, that the sale must be consummated within three (3) months after the date of the notice and that all Shares sold or transferred shall remain subject to the applicable provisions and restrictions of this Plan, including restrictions on further transfer as provided in this Section 10, and shall carry a legend to that effect. If the right of first refusal under this Section 10 are not exercised, but Holder fails to consummate such sale on the same terms and conditions as set forth in the notice to the Company within three (3) months after the date of the notice, then such right of first refusal shall be reinstated.

 

-7-


(e) Termination; Exceptions . The provisions of this Section 10 shall terminate on the closing date of an underwritten public offering of Common Stock of the Company. The provisions of Section 10(a) shall not apply to a transfer of any Shares by Holder, either during his or her lifetime or on death to his or her ancestors, descendants or spouse, or any custodian or trustee for the account of Holder or Holder’s ancestors, descendants or spouse; provided, in each such case a transferee shall receive and hold such Shares subject to the provisions and restrictions on transfer under this Section 10 and there shall be no further transfer of such Shares except in accordance herewith.

(f) Effect of Transfers Not in Compliance . The Company shall not be required to transfer on its books any Shares which shall have been sold or transferred in violation of any of the provisions set forth in this Section 10, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any transferee to whom such Shares shall have been so transferred.

 

Section 11. Stock Purchase Rights and Repurchase Option.

(a) Rights to Purchase Restricted Stock . Stock Purchase Rights may be issued either alone, in addition to, or in tandem with other awards granted under the Plan and/or cash awards made outside of the Plan. After the Committee determines that it will offer Stock Purchase Rights under the Plan, it shall advise the offeree in writing of the terms, conditions and restrictions related to the offer, including the number of Shares that such person shall be entitled to purchase, the price to be paid (which price shall not be less than 85% of the Fair Market Value of the Shares as of the date of this offer, or, in the case of a person owning stock representing more than ten percent (10%) the total combined Voting Power of all classes of stock of the Company or any Subsidiary, the price shall not be less than one hundred percent (100%) of the Fair Market Value of the shares as of the date of the offer), and the time within which such person must accept such offer, which shall in no event exceed thirty (30) days from the date of grant of the Stock Purchase Right. The offer shall be accepted by execution of a stock purchase agreement in the form determined by the Committee.

(b) Repurchase Option . Unless the Committee determines otherwise, the stock purchase agreement shall grant the Company a repurchase option exercisable upon the voluntary or involuntary termination of the Purchaser’s employment with the Company for any reason (including death or disability). The purchase price for unvested Shares repurchased pursuant to the stock purchase agreement shall be the original price paid by the Purchaser and may be paid by cancellation of any indebtedness of the purchaser to the Company. The repurchase option with respect to the Restricted Stock shall lapse at such rate as the Committee may determine, but in any event at a minimum rate of twenty percent (20%) per year.

(c) Other Provisions . The stock purchase agreement shall contain such other terms, provisions and conditions not inconsistent with the Plan as may be determined by the Committee in its sole discretion. In addition, the provisions of stock purchase agreements need not be the same with respect to each Purchaser.

 

-8-


(d) Rights as a Shareholder . Once the Stock Purchase Right is exercised, the Purchaser shall have the rights equivalent to those of a shareholder, and shall be a shareholder when his or her purchase is entered upon the records of the duly authorized transfer agent of the Company. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Stock Purchase Right is exercised, except as provided in Section 13 of the Plan.

 

Section 12. Withholding Taxes.

(a) Obligation of Optionees and Purchasers . As a condition to the exercise of an Option or Stock Purchase Right, the Optionees and Purchasers shall make such arrangements as the Committee may require to the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with exercise. The Optionees shall also make such arrangements as the Committee may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with the disposition of Shares acquired by exercising an Option.

(b) Stock Withholding to Satisfy Withholding Tax Obligations . At the discretion of the Committee, Optionees or Purchasers may satisfy withholding obligations as provided in this paragraph. When an Optionee or Purchaser incurs a tax liability in connection with an Option or Stock Purchase Right, which tax liability is subject to tax withholding under applicable tax laws, and the Optionee or Purchaser is obligated to pay the Company an amount required to be withheld under applicable tax laws, the Optionee or Purchaser may satisfy the withholding tax obligation by electing to have the Company withhold from the Shares to be issued upon exercise of the Option, or the Shares to be issued in connection with the Stock Purchase Right, if any, that number of Shares having a Fair Market Value equal to the amount required to be withheld. The Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to be withheld is to be determined (the “ Tax Date ”).

All elections by an Optionee or Purchaser to have Shares withheld for this purpose shall be made in writing in a form acceptable to the Committee and shall be subject to the following restrictions:

(i) the election must be made on or prior to the Tax Date;

(ii) once made, the election shall be irrevocable as to the particular Shares of the Option or Stock Purchase Right as to which the election is made;

(iii) all elections shall be subject to the consent or disapproval of the Committee;

(iv) if the Optionee is subject to Rule 16b-3 of the Exchange Act, the election must comply with the applicable provisions of Rule 16b-3 and shall be subject to such additional conditions or restrictions as may be required thereunder to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions.

 

-9-


In the event the election to have Shares withheld is made by an Optionee or Purchaser and no election is filed under Section 83(b) of the Code, the Optionee or Purchaser shall receive the full number of Shares with respect to which the Option or Stock Purchase Right is exercised, but such Optionee or Purchaser shall be unconditionally obligated to tender back to the Company the proper number of Shares at the time when the amount of withholding tax becomes due and payable.

 

Section 13. Adjustment of Shares.

(a) Changes in Capitalization or Merger . Subject to any required action by the shareholders of the Company, the number of Shares covered by each outstanding Option or Stock Purchase Right, and the number of Shares which have been authorized for issuance under the Plan but as to which no Options or Stock Purchase Rights have yet been granted or which have been returned to the Plan upon cancellation or expiration of an Option or Stock Purchase Right, as well as the price per Share covered by each such outstanding Option or Stock Purchase Right, shall be proportionately adjusted for any increase or decrease in the number of issued Shares resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued Shares effected without receipt of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of Shares subject to an Option or Stock Purchase Right. In the event of a merger of the Company with or into another corporation, the Option shall be assumed or an equivalent option shall be substituted by such successor corporation or a parent or subsidiary of such successor corporation.

(b) Dissolution, Liquidation or Other Merger . In the event of the proposed dissolution or liquidation of the Company, or of a merger in which the successor corporation does not agree to assume the Option or Stock Purchase Right or substitute an equivalent Option or Stock Purchase Right, the Board shall notify Optionees and Purchasers at least thirty (30) days prior to such proposed action. To the extent it has not been previously exercised, the Option or Stock Purchase Right will terminate immediately prior to the consummation of such proposed action.

 

Section 14. Amendment and Termination of Plan.

(a) Amendment and Termination . The Board may at any time amend, alter, suspend or discontinue the Plan, but no amendment, alteration, suspension or discontinuation shall be made which would impair the rights of any Optionee or Purchaser under any grant theretofore made, without his or her consent. In addition, to the extent necessary and desirable to comply with Rule 16b-3 under the Exchange Act or with Section 422 of the Code (or any other applicable law or regulation, including the requirements of the NASD or an established stock exchange), the Company shall obtain shareholder approval of any Plan amendment in such a manner and to such a degree as required.

 

-10-


(b) Effect of Amendment or Termination . Any such amendment or termination of the Plan shall not affect Options and Stock Purchase Rights already granted and such Options and Stock Purchase Rights shall remain in full force and effect as if this Plan had not been amended or terminated, unless mutually agreed otherwise between the Optionee or Purchaser and the Board, which agreement must be in writing and signed by the Optionee or Purchaser and the Company.

 

Section 15. Nontransferability.

All Options and Stock Purchase Rights granted under the Plan may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised during the lifetime of the Optionee or Stock Purchase Rights Holder only by the Optionee or Stock Purchase Rights Holder.

 

Section 16. Issuance of Shares.

(a) Legal Requirements . Shares shall not be issued pursuant to the exercise of an Option or Stock Purchase Right unless the exercise of such Option or Stock Purchase Right and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the Shares may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance.

(b) Investment Representations . As a condition to the exercise of an Option or Stock Purchase Right, the Committee may require the person exercising such Option or Stock Purchase Right to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned relevant provisions of law.

(c) Regulatory Approval . The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.

 

Section 17. No Employment Rights.

No provision of the Plan, nor any Option or Stock Purchase Right granted under the Plan shall confer upon any Optionee, Stock Purchaser Right Holder or Purchaser any right with respect to continuation of employment or consulting relationship with the Company, nor shall it interfere in any way with his right or the Company’s right to terminate his employment or consulting relationship at any time, with or without cause.

 

-11-


Section 18. Shareholder Approval.

Continuance of the Plan shall be subject to approval by the shareholders of the Company within twelve (12) months before or after the date the Plan is adopted. Such shareholder approval shall be obtained in the degree and manner required under applicable state and federal law and the rules of any stock exchange upon which the Common Stock is listed.

 

Section 19. Information To Holder And Purchasers.

The Company shall provide to each Holder and Purchaser, during the period for which such Holder has one or more Options or Stock Purchase Rights outstanding, and in the case of a Purchaser, during the period such individual owns such Shares, annual financial statements of the Company. The Company shall not be required to provide such information if the issuance of Options under the Plan is limited to key employees whose duties in connection with the Company assure their access to equivalent information.

 

-12-

Exhibit 10.3

A10 Networks, Inc.

2008 STOCK PLAN

1. Purposes of the Plan . The purposes of this Plan are to attract and retain the best available personnel for positions of substantial responsibility, to provide additional incentive to Employees, Directors and Consultants and to promote the success of the Company’s business. The Plan permits the grant of Options and Restricted Stock as the Administrator may determine.

2. Definitions . As used herein, the following definitions shall apply:

(a) “ Administrator ” means the Board or any of its Committees as shall be administering the Plan in accordance with Section 4 hereof.

(b) “ Applicable Laws ” means the requirements relating to the administration of equity compensation plans under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where Awards are granted under the Plan.

(c) “ Award ” means, individually or collectively, a grant under the Plan of Options or Restricted Stock.

(d) “ Award Agreement ” means the written or electronic agreement setting forth the terms and provisions applicable to each Award granted under the Plan. The Award Agreement is subject to the terms and conditions of the Plan.

(e) “ Board ” means the Board of Directors of the Company.

(f) “ Change in Control ” means the occurrence of any of the following events:

(i) Change in Ownership of the Company . A change in the ownership of the Company which occurs on the date that any one person, or more than one person acting as a group (“ Person ”), acquires ownership of the stock of the Company that, together with the stock held by such Person, constitutes more than 50% of the total voting power of the stock of the Company, except that any change in the ownership of the stock of the Company as a result of a private financing of the Company that is approved by the Board will not be considered a Change in Control; or

(ii) Change in Effective Control of the Company . If the Company has filed a registration statement declared effective pursuant to Section 12(g) of the Exchange Act with respect to any of the Company’s securities, a change in the effective control of the Company which occurs on the date that a majority of members of the Board is replaced during any twelve (12) month period by Directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election. For purposes of this clause (ii), if any


Person is considered to be in effective control of the Company, the acquisition of additional control of the Company by the same Person will not be considered a Change in Control; or

(iii) Change in Ownership of a Substantial Portion of the Company’s Assets . A change in the ownership of a substantial portion of the Company’s assets which occurs on the date that any Person acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than 50% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions. For purposes of this subsection (iii), gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.

For purposes of this Section 2(f)(iii), persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company.

Notwithstanding the foregoing, a transaction shall not be deemed a Change in Control unless the transaction qualifies as a change in control event within the meaning of Section 409A of the Code, as it has been and may be amended from time to time, and any proposed or final Treasury Regulations and Internal Revenue Service guidance that has been promulgated or may be promulgated thereunder from time to time.

Further and for the avoidance of doubt, a transaction shall not constitute a Change in Control if: (i) its sole purpose is to change the state of the Company’s incorporation, or (ii) its sole purpose is to create a holding company that shall be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.

(g) “ Code ” means the Internal Revenue Code of 1986, as amended. Any reference to a section of the Code herein shall be a reference to any successor or amended section of the Code.

(h) “ Committee ” means a committee of Directors or of other individuals satisfying Applicable Laws appointed by the Board, or by the compensation committee of the Board, in accordance with Section 4 hereof.

(i) “ Common Stock ” means the Common Stock of the Company.

(j) “ Company ” means A10 Networks, Inc., a California corporation.

(k) “ Consultant ” means any person who is engaged by the Company or any Parent or Subsidiary to render consulting or advisory services to such entity.

(l) “ Director ” means a member of the Board.

 

-2-


(m) “ Disability ” means total and permanent disability as defined in Section 22(e)(3) of the Code.

(n) “ Employee ” means any person, including officers and Directors, employed by the Company or any Parent or Subsidiary of the Company. Neither service as a Director nor payment of a director’s fee by the Company shall be sufficient to constitute “ employment ” by the Company.

(o) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

(p) “ Exchange Program ” means a program under which (i) outstanding Options are surrendered or cancelled in exchange for Options of the same type (which may have lower or higher exercise prices and different terms), Options of a different type, and/or cash, and/or (ii) the exercise price of an outstanding Option is reduced. The terms and conditions of any Exchange Program shall be determined by the Administrator in its sole discretion.

(q) “ Fair Market Value ” means, as of any date, the value of Common Stock determined as follows:

(i) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq Global Market, the Nasdaq Global Select Market or the Nasdaq Capital Market, its Fair Market Value shall be the closing sales price for such stock (or, if no closing sales price was reported on that date, as applicable, on the last trading date such closing sales price was reported) as quoted on such exchange or system on the day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;

(ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value shall be the mean between the high bid and low asked prices for the Common Stock on the day of determination (or, if no bids and asks were reported on that date, as applicable, on the last trading date such bids and asks were reported); or

(iii) In the absence of an established market for the Common Stock, the Fair Market Value thereof shall be determined in good faith by the Administrator.

(r) “ Incentive Stock Option ” means an Option that by its terms qualifies and is otherwise intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.

(s) “ Nonstatutory Stock Option ” means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock Option.

(t) “ Option ” means a stock option granted pursuant to the Plan.

 

-3-


(u) “ Parent ” means a “ parent corporation ,” whether now or hereafter existing, as defined in Section 424(e) of the Code.

(v) “ Participant ” means the holder of an outstanding Award.

(w) “ Plan ” means this 2008 Stock Plan.

(x) “ Restricted Stock ” means Shares issued pursuant to a Restricted Stock award under Section 7 of the Plan, or issued pursuant to the early exercise of an Option.

(y) “ Restricted Stock Purchase Agreement ” means a written or electronic agreement between the Company and the Participant evidencing the terms and restrictions applying to Shares purchased under a Restricted Stock award. The Restricted Stock Purchase Agreement is subject to the terms and conditions of the Plan and the notice of grant.

(z) “ Securities Act ” means the Securities Act of 1933, as amended.

(aa) “ Service Provider ” means an Employee, Director or Consultant.

(bb) “ Share ” means a share of the Common Stock, as adjusted in accordance with Section 11 below.

(cc) “ Subsidiary ” means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.

3. Stock Subject to the Plan . Subject to the provisions of Section 11 of the Plan, the maximum aggregate number of Shares that may be subject to Awards and sold under the Plan is 48,786,429 1 Shares. The Shares may be authorized but unissued, or reacquired Common Stock.

If an Award expires or becomes unexercisable without having been exercised in full, or is surrendered pursuant to an Exchange Program, the unpurchased Shares that were subject thereto shall become available for future grant or sale under the Plan (unless the Plan has terminated). However, Shares that have actually been issued under the Plan, upon exercise of an Award, shall not be returned to the Plan and shall not become available for future distribution under the Plan, except that if unvested Shares of Restricted Stock are repurchased by the Company at their original purchase price, such Shares shall become available for future grant under the Plan. Notwithstanding the foregoing and, subject to adjustment provided in Section 11, the maximum number of Shares that

 

1  

Which number includes an aggregate of 2,304,799 shares transferred from the old 2004 Stock Plan (as of 7/12/2012) as a result of unexercised, expired options or unvested shares repurchased from terminated employees and consultants, an increase of 14,451,930 shares, approved by the Board of Directors, effective 1/26/2011; and an increase of 15,000,000 shares, approved by the Board of Directors, effective 7/12/2012.

 

-4-


  may be issued upon the exercise of Incentive Stock Options shall equal the aggregate Share number stated in the first paragraph of this Section, plus, to the extent allowable under Section 422 of the Code, any Shares that become available for issuance under the Plan under this second paragraph of this Section.

4. Administration of the Plan .

(a) Administrator . The Plan shall be administered by the Board or a Committee appointed by the Board, which Committee shall be constituted to comply with Applicable Laws.

(b) Powers of the Administrator . Subject to the provisions of the Plan and, in the case of a Committee, the specific duties delegated by the Board to such Committee, and subject to the approval of any relevant authorities, the Administrator shall have the authority in its discretion:

(i) to determine the Fair Market Value;

(ii) to select the Service Providers to whom Awards may from time to time be granted hereunder;

(iii) to determine the number of Shares to be covered by each such Award granted hereunder;

(iv) to approve forms of agreement for use under the Plan;

(v) to determine the terms and conditions of any Award granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Awards may be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Award or the Common Stock relating thereto, based in each case on such factors as the Administrator, in its sole discretion, shall determine;

(vi) to institute an Exchange Program;

(vii) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for the purpose of satisfying applicable foreign laws;

(viii) to modify or amend each Award (subject to Section 19(c) of the Plan) including but not limited to the discretionary authority to extend the post-termination exercise period of Awards and to extend the maximum term of an Option (subject to Section 6(a) regarding Incentive Stock Options);

(ix) to authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Award previously granted by the Administrator; and

 

-5-


(x) to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan.

(c) Effect of Administrator’s Decision . All decisions, determinations and interpretations of the Administrator shall be final and binding on all Participants.

5. Eligibility . Nonstatutory Stock Options and Restricted Stock may be granted to Service Providers. Incentive Stock Options may be granted only to Employees.

6. Stock Options .

(a) Term of Option . The term of each Option shall be stated in the Award Agreement; provided, however, that the term shall be no more than ten (10) years from the date of grant thereof. In the case of an Incentive Stock Option granted to a Participant who, at the time the Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the term of the Option shall be five (5) years from the date of grant or such shorter term as may be provided in the Award Agreement.

(b) Option Exercise Price and Consideration .

(i) Exercise Price . The per share exercise price for the Shares to be issued upon exercise of an Option shall be such price as is determined by the Administrator, but shall be subject to the following:

(A) In the case of an Incentive Stock Option

a) granted to an Employee who, at the time of grant of such Option, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the exercise price shall be no less than one hundred and ten percent (110%) of the Fair Market Value per Share on the date of grant.

b) granted to any other Employee, the per Share exercise price shall be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

(B) In the case of a Nonstatutory Stock Option, the per Share exercise price shall be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

(C) Notwithstanding the foregoing, Options may be granted with a per Share exercise price other than as required above in accordance with and pursuant to a transaction described in Section 424 of the Code.

 

-6-


(ii) Forms of Consideration . The consideration to be paid for the Shares to be issued upon exercise of an Option, including the method of payment, shall be determined by the Administrator (and, in the case of an Incentive Stock Option, shall be determined at the time of grant). Such consideration may consist of, without limitation, (1) cash, (2) check, (3) promissory note, to the extent permitted by Applicable Laws, (4) other Shares, provided that such Shares have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option shall be exercised and provided that accepting such Shares, in the sole discretion of the Administrator, shall not result in any adverse accounting consequences to the Company, (5) consideration received by the Company under a cashless exercise program implemented by the Company in connection with the Plan, (6) such other consideration and method of payment for the issuance of Shares to the extent permitted by Applicable Laws, or (7) any combination of the foregoing methods of payment. In making its determination as to the type of consideration to accept, the Administrator shall consider if acceptance of such consideration may be reasonably expected to benefit the Company.

(c) Exercise of Option .

(i) Procedure for Exercise; Rights as a Shareholder . Any Option granted hereunder shall be exercisable according to the terms hereof at such times and under such conditions as determined by the Administrator and set forth in the Award Agreement. An Option may not be exercised for a fraction of a Share.

An Option shall be deemed exercised when the Company receives (i) written or electronic notice of exercise (in accordance with the Award Agreement) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised, together with any applicable withholding taxes. Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Award Agreement and the Plan. Shares issued upon exercise of an Option shall be issued in the name of the Participant or, if requested by the Participant, in the name of the Participant and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Shares, notwithstanding the exercise of the Option. The Company shall issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment shall be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 11 of the Plan.

Exercise of an Option in any manner shall result in a decrease in the number of Shares thereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.

(ii) Termination of Relationship as a Service Provider . If a Participant ceases to be a Service Provider, such Participant may exercise his or her Option within thirty (30) days of termination, or such longer period of time as specified in the Award Agreement, to the extent that the Option is vested on the date of termination (but in no event later than the expiration of the

 

-7-


term of the Option as set forth in the Award Agreement). Unless the Administrator provides otherwise, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the Participant does not exercise his or her Option within the time specified by the Administrator, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.

(iii) Disability of Participant . If a Participant ceases to be a Service Provider as a result of the Participant’s Disability, the Participant may exercise his or her Option within six (6) months of termination, or such longer period of time as specified in the Award Agreement, to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Award Agreement). Unless the Administrator provides otherwise, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the Participant does not exercise his or her Option within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.

(iv) Death of Participant . If a Participant dies while a Service Provider, the Option may be exercised within six (6) months following the Participant’s death, or such longer period of time as specified in the Award Agreement, to the extent that the Option is vested on the date of death (but in no event later than the expiration of the term of such Option as set forth in the Award Agreement) by the Participant’s designated beneficiary, provided such beneficiary has been designated prior to the Participant’s death in a form acceptable to the Administrator. If no such beneficiary has been designated by the Participant, then such Option may be exercised by the personal representative of the Participant’s estate or by the person(s) to whom the Option is transferred pursuant to the Participant’s will or in accordance with the laws of descent and distribution. If, at the time of death, the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall immediately revert to the Plan. If the Option is not so exercised within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.

(v) Incentive Stock Option Limit . Each Option shall be designated in the Award Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options are exercisable for the first time by the Participant during any calendar year (under all plans of the Company and any Parent or Subsidiary) exceeds one hundred thousand dollars ($100,000), such Options shall be treated as Nonstatutory Stock Options. For purposes of this Section 6(c)(v), Incentive Stock Options shall be taken into account in the order in which they were granted. The Fair Market Value of the Shares shall be determined as of the time the Option with respect to such Shares is granted.

7. Restricted Stock .

 

-8-


(a) Rights to Purchase . Restricted Stock may be issued either alone, in addition to, or in tandem with other awards granted under the Plan and/or cash awards made outside of the Plan. After the Administrator determines that it shall offer Restricted Stock under the Plan, it shall advise the offeree in writing or electronically of the terms, conditions and restrictions related to the offer, including the number of Shares that such person shall be entitled to purchase, the price to be paid (if any), and the time within which such person must accept such offer.

(b) Repurchase Option . Unless the Administrator determines otherwise, the Restricted Stock Purchase Agreement shall grant the Company a repurchase option according to terms as the Administrator determines.

(c) Terms . The term of each Restricted Stock award shall be stated in the Restricted Stock Purchase Agreement; provided, however, that the term shall be no more than ten (10) years from the date of grant thereof.

(d) Other Provisions . The Restricted Stock Purchase Agreement shall contain such other terms, provisions and conditions not inconsistent with the Plan as may be determined by the Administrator in its sole discretion.

(e) Rights as a Shareholder . Once the Restricted Stock award is purchased or otherwise issued, the purchaser shall have rights equivalent to those of a shareholder and shall be a shareholder when his or her purchase is entered upon the records of the duly authorized transfer agent of the Company. No adjustment shall be made for a dividend or other right for which the record date is prior to the date the Restricted Stock is purchased or otherwise issued, except as provided in Section 11 of the Plan.

8. Tax Withholding . Prior to the delivery of any Shares pursuant to an Award (or exercise thereof), the Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, local, foreign or other taxes (including the Participant’s FICA obligation) required to be withheld with respect to such Award (or exercise thereof). The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, shall determine in what manner it shall allow a Participant to satisfy such tax withholding obligation and may permit the Participant to satisfy such tax withholding obligation, in whole or in part by one (1) or more of the following: (a) paying cash (or by check), (b) electing to have the Company withhold otherwise deliverable Shares having a Fair Market Value equal to the minimum amount statutorily required to be withheld, or (c) selling a sufficient number of such Shares otherwise deliverable to a Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to the minimum amount statutorily required to be withheld.

9. Limited Transferability of Awards . Unless determined otherwise by the Administrator, Awards may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or the laws of descent and distribution, and may be exercised during the lifetime of the Participant, only by the Participant. If the Administrator in its sole

 

-9-


discretion makes an Award transferable, such Award may only be transferred (i) by will, (ii) by the laws of descent and distribution, or (iii) as permitted by Rule 701 of the Securities Act.

10. Leaves of Absence; Transfers .

(a) Unless the Administrator provides otherwise, or except as otherwise required by Applicable Laws, vesting of Awards granted hereunder shall be suspended during any unpaid leave of absence.

(b) A Service Provider shall not cease to be a Service Provider in the case of (i) any leave of absence approved by the Company, or (ii) transfers between locations of the Company or between the Company, its Parent, any Subsidiary, or any successor.

(c) For purposes of Incentive Stock Options, no such leave may exceed three (3) months, unless reemployment upon expiration of such leave is guaranteed by statute or contract. If reemployment upon expiration of a leave of absence approved by the Company is not so guaranteed, then six (6) months following the first (1st) day of such leave, any Incentive Stock Option held by the Participant shall cease to be treated as an Incentive Stock Option and shall be treated for tax purposes as a Nonstatutory Stock Option.

11. Adjustments; Dissolution or Liquidation; Merger or Change in Control .

(a) Adjustments . In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, the Administrator, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under the Plan, shall adjust the number and class of Shares that may be delivered under the Plan and/or the number, class, and price of Shares covered by each outstanding Award; provided, however, that the Administrator shall make such adjustments to the extent required by Section 25102(o) of the California Corporations Code.

(b) Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, the Administrator shall notify each Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it has not been previously exercised, an Award shall terminate immediately prior to the consummation of such proposed action.

(c) Merger or Change in Control . In the event of a merger or Change in Control, each outstanding Award shall be treated as the Administrator determines, including, without limitation, that each Award be assumed or an equivalent award substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. The Administrator shall not be required to treat all Awards similarly in the transaction.

 

-10-


Notwithstanding the foregoing, in the event of a Change in Control in which the successor corporation does not assume or substitute for the Award, the Participant shall fully vest in and have the right to exercise his or her outstanding Awards, including Shares as to which such Award would not otherwise be vested or exercisable, and restrictions on all of the Participant’s Restricted Stock shall lapse. In addition, if an Award is not assumed or substituted in the event of a merger or Change in Control, the Administrator shall notify the Participant in writing or electronically that the Award shall be fully vested and exercisable for a period of time determined by the Administrator in its sole discretion, and any Award not assumed or substituted for shall terminate upon the expiration of such period for no consideration, unless otherwise determined by the Administrator.

For the purposes of this Section 11(c), the Award shall be considered assumed if, following the merger or Change in Control, the option or right confers the right to purchase or receive, for each Share subject to the Award immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property) received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Award, for each Share subject to the Award, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of common stock in the merger or Change in Control.

12. Time of Granting Awards . The date of grant of an Award shall, for all purposes, be the date on which the Administrator makes the determination granting such Award, or such later date as is determined by the Administrator. Notice of the determination shall be given to each Service Provider to whom an Award is so granted within a reasonable time after the date of such grant.

13. No Effect on Employment or Service . Neither the Plan nor any Award shall confer upon any participant any right with respect to continuing the Participant’s relationship as a Service Provider with the Company, nor shall it interfere in any way with his or her right or the Company’s right to terminate such relationship at any time, with or without cause, and with or without notice.

14. Conditions Upon Issuance of Shares .

(a) Legal Compliance . Shares shall not be issued pursuant to the exercise of an Award unless the exercise of such Award and the issuance and delivery of such Shares shall comply with Applicable Laws and shall be further subject to the approval of counsel for the Company with respect to such compliance.

(b) Investment Representations . As a condition to the exercise of an Award, the Administrator may in its discretion require the person exercising such Award to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares.

 

-11-


15. Inability to Obtain Authority . The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.

16. Reservation of Shares . The Company, during the term of this Plan, shall at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan.

17. Shareholder Approval . The Plan shall be subject to approval by the shareholders of the Company within twelve (12) months after the date the Plan is adopted. Such shareholder approval shall be obtained in the degree and manner required under Applicable Laws.

18. Term of Plan . Subject to shareholder approval in accordance with Section 17, the Plan shall become effective upon its adoption by the Board. Unless sooner terminated under Section 19, it shall continue in effect for a term of ten (10) years from the later of (a) the effective date of the Plan, or (b) the earlier of the most recent Board or shareholder approval of an increase in the number of Shares reserved for issuance under the Plan.

19. Amendment and Termination of the Plan .

(a) Amendment and Termination . The Board may at any time amend, alter, suspend or terminate the Plan.

(b) Shareholder Approval . The Board shall obtain shareholder approval of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws.

(c) Effect of Amendment or Termination . No amendment, alteration, suspension or termination of the Plan shall impair the rights of any Participant, unless mutually agreed otherwise between the Participant and the Administrator, which agreement must be in writing (which may include e-mail) and signed by the Participant and the Company. Termination of the Plan shall not affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to Options granted under the Plan prior to the date of such termination.

 

-12-

Exhibit 10.4

A10 NETWORKS, INC.

2014 EQUITY INCENTIVE PLAN

1. Purposes of the Plan . The purposes of this Plan are:

 

    to attract and retain the best available personnel for positions of substantial responsibility;

 

    to provide additional incentive to Employees, Directors and Consultants; and

 

    to promote the success of the Company’s business.

The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, Restricted Stock, Restricted Stock Units, Stock Appreciation Rights, Performance Units and Performance Shares.

2. Definitions . As used herein, the following definitions will apply:

(a) “ Administrator ” means the Board or any of its Committees as will be administering the Plan, in accordance with Section 4 of the Plan.

(b) “ Applicable Laws ” means the requirements relating to the administration of equity-based awards and the related issuance of Shares under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable securities or exchange control laws of any foreign country or jurisdiction where Awards are, or will be, granted under the Plan.

(c) “ Award ” means, individually or collectively, a grant under the Plan of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Units or Performance Shares.

(d) “ Award Agreement ” means the written or electronic agreement setting forth the terms and provisions applicable to each Award granted under the Plan. The Award Agreement is subject to the terms and conditions of the Plan.

(e) “ Board ” means the Board of Directors of the Company.

(f) “ Change in Control ” means the occurrence of any of the following events:

(i) A change in the ownership of the Company which occurs on the date that any one person, or more than one person acting as a group (“ Person ”), acquires ownership of the stock of the Company that, together with the stock held by such Person, constitutes more than fifty percent (50%) of the total voting power of the stock of the Company; provided, however, that for purposes of this subsection, the acquisition of additional stock by any one Person, who is


considered to own more than fifty percent (50%) of the total voting power of the stock of the Company will not be considered a Change in Control; or

(ii) A change in the effective control of the Company which occurs on the date that a majority of members of the Board is replaced during any twelve (12) month period by Directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election. For purposes of this clause (ii), if any Person is considered to be in effective control of the Company, the acquisition of additional control of the Company by the same Person will not be considered a Change in Control; or

(iii) A change in the ownership of a substantial portion of the Company’s assets which occurs on the date that any Person acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions; provided, however, that for purposes of this subsection (iii), the following will not constitute a change in the ownership of a substantial portion of the Company’s assets: (A) a transfer to an entity that is controlled by the Company’s stockholders immediately after the transfer, or (B) a transfer of assets by the Company to: (1) a stockholder of the Company (immediately before the asset transfer) in exchange for or with respect to the Company’s stock, (2) an entity, fifty percent (50%) or more of the total value or voting power of which is owned, directly or indirectly, by the Company, (3) a Person, that owns, directly or indirectly, fifty percent (50%) or more of the total value or voting power of all the outstanding stock of the Company, or (4) an entity, at least fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a Person described in this subsection (iii)(B)(3). For purposes of this subsection (iii), gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.

For purposes of this definition, persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company.

Notwithstanding the foregoing, a transaction will not be deemed a Change in Control unless the transaction qualifies as a change in control event within the meaning of Code Section 409A, as it has been and may be amended from time to time, and any proposed or final U.S. Treasury Regulations and Internal Revenue Service guidance that has been promulgated or may be promulgated thereunder from time to time.

Further and for the avoidance of doubt, a transaction will not constitute a Change in Control if: (i) its sole purpose is to change the state of the Company’s incorporation, or (ii) its sole purpose is to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.

(g) “ Code ” means the U.S. Internal Revenue Code of 1986, as amended. Reference to a specific section of the Code or regulation thereunder will include such section or regulation,

 

-2-


any valid regulation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.

(h) “ Committee ” means a committee of Directors or of other individuals satisfying Applicable Laws appointed by the Board, or a duly authorized committee of the Board, in accordance with Section 4 hereof.

(i) “ Common Stock ” means the common stock of the Company.

(j) “ Company ” means A10 Networks, Inc., a Delaware corporation, or any successor thereto.

(k) “ Consultant ” means any natural person, including an advisor, engaged by the Company or a Parent or Subsidiary to render bona fide services to such entity, provided the services (i) are not in connection with the offer or sale of securities in a capital-raising transaction, and (ii) do not directly promote or maintain a market for the Company’s securities.

(l) “ Director ” means a member of the Board.

(m) “ Disability ” means total and permanent disability as defined in Section 22(e)(3) of the Code, provided that in the case of Awards other than Incentive Stock Options, the Administrator in its discretion may determine whether a permanent and total disability exists in accordance with uniform and non-discriminatory standards adopted by the Administrator from time to time.

(n) “ Employee ” means any person, including Officers and Directors, providing services as an employee of the Company or of any Parent or Subsidiary of the Company. Neither service as a Director nor payment of a director’s fee by the Company will be sufficient to constitute “employment” by the Company.

(o) “ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended.

(p) “ Exchange Program ” means a program under which (i) outstanding Awards are surrendered or cancelled in exchange for awards of the same type (which may have higher or lower exercise prices and different terms), awards of a different type, and/or cash, (ii) Participants would have the opportunity to transfer any outstanding Awards to a financial institution or other person or entity selected by the Administrator, and/or (iii) the exercise price of an outstanding Award is increased or reduced. The Administrator will determine the terms and conditions of any Exchange Program in its sole discretion.

(q) “ Fair Market Value ” means, as of any date, the value of Common Stock determined as follows:

(i) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the New York Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market of The NASDAQ Stock Market, its Fair Market Value will be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the

 

-3-


day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;

(ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Share will be the mean between the high bid and low asked prices for the Common Stock on the date of determination (or, if no bids and asks were reported on that date, as applicable, on the last trading date such bids and asks were reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable;

(iii) For purposes of any Awards granted on the Registration Date, the Fair Market Value will be the initial price to the public as set forth in the final prospectus included within the registration statement on Form S-1 filed with the U.S. Securities and Exchange Commission for the initial public offering of the Common Stock; or

(iv) In the absence of an established market for the Common Stock, the Fair Market Value will be determined in good faith by the Administrator.

(r) “ Fiscal Year ” means the fiscal year of the Company.

(s) “ Incentive Stock Option ” means an Option that by its terms qualifies and is intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.

(t) “ Inside Director ” means a Director who is an Employee.

(u) “ Nonstatutory Stock Option ” means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock Option.

(v) “ Officer ” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.

(w) “ Option ” means a stock option granted pursuant to the Plan.

(x) “ Outside Director ” means a Director who is not an Employee.

(y) “ Parent ” means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code.

(z) “ Participant ” means the holder of an outstanding Award.

(aa) “ Performance Share ” means an Award denominated in Shares which may be earned in whole or in part upon attainment of performance goals or other vesting criteria as the Administrator may determine pursuant to Section 10.

(bb) “ Performance Unit ” means an Award which may be earned in whole or in part upon attainment of performance goals or other vesting criteria as the Administrator may determine and which may be settled for cash, Shares or other securities or a combination of the foregoing pursuant to Section 10.

 

-4-


(cc) “ Period of Restriction ” means the period during which the transfer of Shares of Restricted Stock are subject to restrictions and therefore, the Shares are subject to a substantial risk of forfeiture. Such restrictions may be based on the passage of time, the achievement of target levels of performance, or the occurrence of other events as determined by the Administrator.

(dd) “ Plan ” means this 2014 Equity Incentive Plan.

(ee) “ Registration Date ” means the effective date of the first registration statement that is filed by the Company and declared effective pursuant to Section 12(g) of the Exchange Act, with respect to any class of the Company’s securities.

(ff) “ Restricted Stock ” means Shares issued pursuant to a Restricted Stock award under Section 7 of the Plan, or issued pursuant to the early exercise of an Option.

(gg) “ Restricted Stock Unit ” means a bookkeeping entry representing an amount equal to the Fair Market Value of one Share, granted pursuant to Section 8. Each Restricted Stock Unit represents an unfunded and unsecured obligation of the Company.

(hh) “ Rule 16b-3 ” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan.

(ii) “ Section 16(b) ” means Section 16(b) of the Exchange Act.

(jj) “ Service Provider ” means an Employee, Director or Consultant.

(kk) “ Share ” means a share of the Common Stock, as adjusted in accordance with Section 14 of the Plan.

(ll) “ Stock Appreciation Right ” means an Award, granted alone or in connection with an Option, that pursuant to Section 9 is designated as a Stock Appreciation Right.

(mm) “ Subsidiary ” means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.

3. Stock Subject to the Plan .

(a) Stock Subject to the Plan . Subject to the provisions of Section 14 of the Plan, the maximum aggregate number of Shares that may be issued under the Plan is 7,700,000. The Shares may be authorized, but unissued, or reacquired Common Stock.

(b) Automatic Share Reserve Increase . Subject to the provisions of Section 14 of the Plan, the number of Shares available for issuance under the Plan will be increased on the first day of each Fiscal Year beginning with the 2015 Fiscal Year, in an amount equal to the least of (i) 8,000,000 Shares, (ii) five percent (5%) of the outstanding Shares on the last day of the immediately preceding Fiscal Year or (iii) such number of Shares determined by the Board; provided, however, that such determination under clause (iii) will be made no later than the last day of the immediately preceding Fiscal Year.

 

-5-


(c) Lapsed Awards . If an Award expires or becomes unexercisable without having been exercised in full, is surrendered pursuant to an Exchange Program, or, with respect to Restricted Stock, Restricted Stock Units, Performance Units or Performance Shares, is forfeited to or repurchased by the Company due to failure to vest, then the unpurchased Shares (or for Awards other than Options or Stock Appreciation Rights the forfeited or repurchased Shares), which were subject thereto will become available for future grant or sale under the Plan (unless the Plan has terminated). With respect to Stock Appreciation Rights, only Shares actually issued (i.e., the net Shares issued) pursuant to a Stock Appreciation Right will cease to be available under the Plan; all remaining Shares under Stock Appreciation Rights will remain available for future grant or sale under the Plan (unless the Plan has terminated). Shares that actually have been issued under the Plan under any Award will not be returned to the Plan and will not become available for future distribution under the Plan; provided, however, that if Shares issued pursuant to Awards of Restricted Stock, Restricted Stock Units, Performance Shares or Performance Units are repurchased by the Company or are forfeited to the Company, such Shares will become available for future grant under the Plan. Shares used to pay the exercise price of an Award or to satisfy the tax withholding obligations related to an Award will become available for future grant or sale under the Plan. To the extent an Award under the Plan is paid out in cash rather than Shares, such cash payment will not result in reducing the number of Shares available for issuance under the Plan. Notwithstanding the foregoing and, subject to adjustment as provided in Section 14, the maximum number of Shares that may be issued upon the exercise of Incentive Stock Options will equal the aggregate Share number stated in Section 3(a), plus, to the extent allowable under Section 422 of the Code, any Shares that become available for issuance under the Plan pursuant to Sections 3(b) and 3(c).

(d) Share Reserve . The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as will be sufficient to satisfy the requirements of the Plan.

4. Administration of the Plan .

(a) Procedure .

(i) Multiple Administrative Bodies . Different Committees with respect to different groups of Service Providers may administer the Plan.

(ii) Section 162(m) . To the extent that the Administrator determines it to be desirable to qualify Awards granted hereunder as “performance-based compensation” within the meaning of Section 162(m) of the Code, the Plan will be administered by a Committee of two (2) or more “outside directors” within the meaning of Section 162(m) of the Code.

(iii) Rule 16b-3 . To the extent desirable to qualify transactions hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder will be structured to satisfy the requirements for exemption under Rule 16b-3.

(iv) Other Administration . Other than as provided above, the Plan will be administered by (A) the Board or (B) a Committee, which committee will be constituted to satisfy Applicable Laws.

 

-6-


(b) Powers of the Administrator . Subject to the provisions of the Plan, and in the case of a Committee, subject to the specific duties delegated by the Board to such Committee, the Administrator will have the authority, in its discretion:

(i) to determine the Fair Market Value;

(ii) to select the Service Providers to whom Awards may be granted hereunder;

(iii) to determine the number of Shares to be covered by each Award granted hereunder;

(iv) to approve forms of Award Agreements for use under the Plan;

(v) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Awards may vest and be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Award or the Shares relating thereto, based in each case on such factors as the Administrator will determine;

(vi) to institute and determine the terms and conditions of an Exchange Program;

(vii) to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan;

(viii) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for the purpose of satisfying applicable foreign laws or for qualifying for favorable tax treatment under applicable foreign laws;

(ix) to modify or amend each Award (subject to Section 19 of the Plan), including but not limited to the discretionary authority to extend the post-termination exercisability period of Awards and to extend the maximum term of an Option (subject to Section 6(b) of the Plan regarding Incentive Stock Options);

(x) to allow Participants to satisfy tax withholding obligations in such manner as prescribed in Section 15 of the Plan;

(xi) to authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Award previously granted by the Administrator;

(xii) to allow a Participant to defer the receipt of the payment of cash or the delivery of Shares that otherwise would be due to such Participant under an Award; and

(xiii) to make all other determinations deemed necessary or advisable for administering the Plan.

 

-7-


(c) Effect of Administrator’s Decision . The Administrator’s decisions, determinations and interpretations will be final and binding on all Participants and any other holders of Awards.

5. Eligibility . Nonstatutory Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Shares and Performance Units may be granted to Service Providers. Incentive Stock Options may be granted only to Employees.

6. Stock Options .

(a) Limitations . Each Option will be designated in the Award Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options are exercisable for the first time by the Participant during any calendar year (under all plans of the Company and any Parent or Subsidiary) exceeds one hundred thousand dollars ($100,000), the portion of the Options falling within such limit will be Incentive Stock Options and the excess Options will be treated as Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive Stock Options will be taken into account in the order in which they were granted. The Fair Market Value of the Shares will be determined as of the time the Option with respect to such Shares is granted.

(b) Term of Option . The term of each Option will be stated in the Award Agreement. In the case of an Incentive Stock Option, the term will be ten (10) years from the date of grant or such shorter term as may be provided in the Award Agreement. Moreover, in the case of an Incentive Stock Option granted to a Participant who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option will be five (5) years from the date of grant or such shorter term as may be provided in the Award Agreement.

(c) Option Exercise Price and Consideration .

(i) Exercise Price . The per share exercise price for the Shares to be issued pursuant to exercise of an Option will be determined by the Administrator, subject to the following:

(1) In the case of an Incentive Stock Option

(A) granted to an Employee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price will be no less than one hundred ten percent (110%) of the Fair Market Value per Share on the date of grant.

(B) granted to any Employee other than an Employee described in paragraph (A) immediately above, the per Share exercise price will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

 

-8-


(2) In the case of a Nonstatutory Stock Option, the per Share exercise price will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

(3) Notwithstanding the foregoing, Options may be granted with a per Share exercise price of less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant pursuant to a transaction described in, and in a manner consistent with, Section 424(a) of the Code.

(ii) Waiting Period and Exercise Dates . At the time an Option is granted, the Administrator will fix the period within which the Option may be exercised and will determine any conditions that must be satisfied before the Option may be exercised.

(iii) Form of Consideration . The Administrator will determine the acceptable form of consideration for exercising an Option, including the method of payment. In the case of an Incentive Stock Option, the Administrator will determine the acceptable form of consideration at the time of grant. Such consideration may consist entirely of: (1) cash; (2) check; (3) promissory note, to the extent permitted by Applicable Laws; (4) other Shares, provided that such Shares have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option will be exercised and provided that accepting such Shares will not result in any adverse accounting consequences to the Company, as the Administrator determines in its sole discretion; (5) consideration received by the Company under a broker-assisted (or other) cashless exercise program (whether through a broker or otherwise) implemented by the Company in connection with the Plan; (6) by net exercise; (7) such other consideration and method of payment for the issuance of Shares to the extent permitted by Applicable Laws; or (8) any combination of the foregoing methods of payment.

(d) Exercise of Option .

(i) Procedure for Exercise; Rights as a Stockholder . Any Option granted hereunder will vest and be exercisable according to the terms of the Plan and at such times and under such conditions as determined by the Administrator and set forth in the Award Agreement. An Option may not be exercised for a fraction of a Share.

An Option will be deemed exercised when the Company receives: (i) a notice of exercise (in such form as the Administrator may specify from time to time) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised (together with applicable withholding taxes). Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Award Agreement and the Plan. Shares issued upon exercise of an Option will be issued in the name of the Participant or, if requested by the Participant, in the name of the Participant and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares subject to an Option, notwithstanding the exercise of the Option. The Company will issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a

 

-9-


dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 14 of the Plan.

Exercising an Option in any manner will decrease the number of Shares thereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.

(ii) Termination of Relationship as a Service Provider . If a Participant ceases to be a Service Provider, other than upon the Participant’s termination as the result of the Participant’s death or Disability, the Participant may exercise his or her Option within such period of time as is specified in the Award Agreement to the extent that the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Award Agreement). In the absence of a specified time in the Award Agreement, the Option will remain exercisable for three (3) months following the Participant’s termination. Unless otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or her Option within the time specified by the Administrator, the Option will terminate, and the Shares covered by such Option will revert to the Plan.

(iii) Disability of Participant . If a Participant ceases to be a Service Provider as a result of the Participant’s Disability, the Participant may exercise his or her Option within such period of time as is specified in the Award Agreement to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Award Agreement). In the absence of a specified time in the Award Agreement, the Option will remain exercisable for twelve (12) months following the Participant’s termination. Unless otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or her Option within the time specified herein, the Option will terminate, and the Shares covered by such Option will revert to the Plan.

(iv) Death of Participant . If a Participant dies while a Service Provider, the Option may be exercised following the Participant’s death within such period of time as is specified in the Award Agreement to the extent that the Option is vested on the date of death (but in no event may the option be exercised later than the expiration of the term of such Option as set forth in the Award Agreement), by the Participant’s designated beneficiary, provided such beneficiary has been designated prior to Participant’s death in a form acceptable to the Administrator. If no such beneficiary has been designated by the Participant, then the vested portion of such Option may be exercised by the personal representative of the Participant’s estate or by the person(s) to whom the Option is transferred pursuant to the Participant’s will or in accordance with the laws of descent and distribution. In the absence of a specified time in the Award Agreement, the vested portion of the Option will remain exercisable for twelve (12) months following Participant’s death. Unless otherwise provided by the Administrator, if at the time of death Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will immediately revert to the Plan. If the Option is not so

 

-10-


exercised within the time specified herein, the Option will terminate, and the Shares covered by such Option will revert to the Plan.

7. Restricted Stock .

(a) Grant of Restricted Stock . Subject to the terms and provisions of the Plan, the Administrator, at any time and from time to time, may grant Shares of Restricted Stock to Service Providers in such amounts as the Administrator, in its sole discretion, will determine.

(b) Restricted Stock Agreement . Each Award of Restricted Stock will be evidenced by an Award Agreement that will specify the Period of Restriction, the number of Shares granted, and such other terms and conditions as the Administrator, in its sole discretion, will determine. Unless the Administrator determines otherwise, the Company as escrow agent will hold Shares of Restricted Stock until the restrictions on such Shares have lapsed.

(c) Transferability . Except as provided in this Section 7 or the Award Agreement, Shares of Restricted Stock may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the end of the applicable Period of Restriction.

(d) Other Restrictions . The Administrator, in its sole discretion, may impose such other restrictions on Shares of Restricted Stock as it may deem advisable or appropriate.

(e) Removal of Restrictions . Except as otherwise provided in this Section 7, Shares of Restricted Stock covered by each Restricted Stock grant made under the Plan will be released from escrow as soon as practicable after the last day of the Period of Restriction or at such other time as the Administrator may determine. The Administrator, in its discretion, may accelerate the time at which any restrictions will lapse or be removed.

(f) Voting Rights . During the Period of Restriction, Service Providers holding Shares of Restricted Stock granted hereunder may exercise full voting rights with respect to those Shares, unless the Administrator determines otherwise.

(g) Dividends and Other Distributions . During the Period of Restriction, Service Providers holding Shares of Restricted Stock will be entitled to receive all dividends and other distributions paid with respect to such Shares, unless the Administrator provides otherwise. If any such dividends or distributions are paid in Shares, the Shares will be subject to the same restrictions on transferability and forfeitability as the Shares of Restricted Stock with respect to which they were paid.

(h) Return of Restricted Stock to Company . On the date set forth in the Award Agreement, the Restricted Stock for which restrictions have not lapsed will revert to the Company and again will become available for grant under the Plan.

8. Restricted Stock Units .

(a) Grant . Restricted Stock Units may be granted at any time and from time to time as determined by the Administrator. After the Administrator determines that it will grant Restricted Stock Units under the Plan, it will advise the Participant in an Award Agreement of

 

-11-


the terms, conditions, and restrictions related to the grant, including the number of Restricted Stock Units.

(b) Vesting Criteria and Other Terms . The Administrator will set vesting criteria in its discretion, which, depending on the extent to which the criteria are met, will determine the number of Restricted Stock Units that will be settled and the corresponding number of underlying Shares to be paid out to the Participant. The Administrator may set vesting criteria based upon the achievement of Company-wide, divisional, business unit, or individual goals (including, but not limited to, continued provision of services to the Company or any Parent or Subsidiary of the Company), applicable federal or state securities laws or any other basis determined by the Administrator in its discretion.

(c) Earning Restricted Stock Units . Upon meeting the applicable vesting criteria, the Participant will be entitled to receive a payout as determined by the Administrator. Notwithstanding the foregoing, at any time after the grant of Restricted Stock Units, the Administrator, in its sole discretion, may reduce or waive any vesting criteria that must be met to receive a payout.

(d) Form and Timing of Payment . Payment of earned Restricted Stock Units will be made as soon as practicable after the date(s) determined by the Administrator and set forth in the Award Agreement. The Administrator, in its sole discretion, may only settle earned Restricted Stock Units in cash, Shares, or a combination of both.

(e) Cancellation . On the date set forth in the Award Agreement, all unearned Restricted Stock Units will be forfeited to the Company.

9. Stock Appreciation Rights .

(a) Grant of Stock Appreciation Rights . Subject to the terms and conditions of the Plan, a Stock Appreciation Right may be granted to Service Providers at any time and from time to time as will be determined by the Administrator, in its sole discretion.

(b) Number of Shares . The Administrator will have complete discretion to determine the number of Stock Appreciation Rights granted to any Service Provider.

(c) Exercise Price and Other Terms . The per share exercise price for the Shares to be issued pursuant to exercise of a Stock Appreciation Right will be determined by the Administrator and will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant. Otherwise, the Administrator, subject to the provisions of the Plan, will have complete discretion to determine the terms and conditions of Stock Appreciation Rights granted under the Plan.

(d) Stock Appreciation Right Agreement . Each Stock Appreciation Right grant will be evidenced by an Award Agreement that will specify the exercise price, the term of the Stock Appreciation Right, the conditions of exercise, and such other terms and conditions as the Administrator, in its sole discretion, will determine.

 

-12-


(e) Expiration of Stock Appreciation Rights . A Stock Appreciation Right granted under the Plan will expire ten (10) years from the date of grant or such shorter term as may be provided in the Award Agreement, as determined by the Administrator, in its sole discretion. Notwithstanding the foregoing, the rules of Section 6(d) relating to exercise also will apply to Stock Appreciation Rights.

(f) Payment of Stock Appreciation Right Amount . Upon exercise of a Stock Appreciation Right, a Participant will be entitled to receive payment from the Company in an amount (the “ Payout Amount ”) determined by multiplying:

(i) The difference between the Fair Market Value of a Share on the date of exercise over the exercise price; times

(ii) The number of Shares with respect to which the Stock Appreciation Right is exercised.

At the discretion of the Administrator, the payment upon Stock Appreciation Right exercise may be in cash, in Shares (which, on the date of exercise, have an aggregate Fair Market Value equal to the Payout Amount), or in some combination thereof.

10. Performance Units and Performance Shares .

(a) Grant of Performance Units/Shares . Performance Units and Performance Shares may be granted to Service Providers at any time and from time to time, as will be determined by the Administrator, in its sole discretion. The Administrator will have complete discretion in determining the number of Performance Units and Performance Shares granted to each Participant.

(b) Value of Performance Units/Shares . Each Performance Unit will have an initial value that is established by the Administrator on or before the date of grant. Each Performance Share will have an initial value equal to the Fair Market Value of a Share on the date of grant.

(c) Performance Objectives and Other Terms . The Administrator will set performance objectives or other vesting provisions (including, without limitation, continued status as a Service Provider) in its discretion which, depending on the extent to which they are met, will determine the number or value of Performance Units/Shares that will be paid out to the Service Providers. The time period during which the performance objectives or other vesting provisions must be met will be called the “Performance Period.” Each Award of Performance Units/Shares will be evidenced by an Award Agreement that will specify the Performance Period, and such other terms and conditions as the Administrator, in its sole discretion, will determine. The Administrator may set performance objectives based upon the achievement of Company-wide, divisional, business unit or individual goals (including, but not limited to, continued provision of services to the Company or any Parent or Subsidiary of the Company), applicable federal or state securities laws, or any other basis determined by the Administrator in its discretion.

(d) Earning of Performance Units/Shares . After the applicable Performance Period has ended, the holder of Performance Units/Shares will be entitled to receive a payout of the

 

-13-


number of Performance Units/Shares earned by the Participant over the Performance Period, to be determined as a function of the extent to which the corresponding performance objectives or other vesting provisions have been achieved. After the grant of a Performance Unit/Share, the Administrator, in its sole discretion, may reduce or waive any performance objectives or other vesting provisions for such Performance Unit/Share.

(e) Form and Timing of Payment of Performance Units/Shares . Payment of earned Performance Units/Shares will be made as soon as practicable after the expiration of the applicable Performance Period. The Administrator, in its sole discretion, may pay earned Performance Units/Shares in the form of cash, in Shares (which have an aggregate Fair Market Value equal to the value of the earned Performance Units/Shares at the close of the applicable Performance Period) or in a combination thereof.

(f) Cancellation of Performance Units/Shares . On the date set forth in the Award Agreement, all unearned or unvested Performance Units/Shares will be forfeited to the Company, and again will be available for grant under the Plan.

11. Outside Director Limitations . No Outside Director may be granted, in any Fiscal Year, cash-settled Awards with a grant date fair value (determined in accordance with U.S. generally accepted accounting principles) of greater than $300,000, increased to $450,000 in the Fiscal Year of his or her initial service as an Outside Director.

Any Awards granted to an individual while he or she was an Employee, or while he or she was a Consultant but not an Outside Director, will not count for purposes of the limitations under this Section 11.

12. Leaves of Absence/Transfer Between Locations . Unless the Administrator provides otherwise, vesting of Awards granted hereunder will be suspended during any unpaid leave of absence. A Participant will not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between locations of the Company or between the Company, its Parent, or any Subsidiary. For purposes of Incentive Stock Options, no such leave may exceed three (3) months, unless reemployment upon expiration of such leave is guaranteed by statute or contract. If reemployment upon expiration of a leave of absence approved by the Company is not so guaranteed, then six (6) months following the first (1st) day of such leave any Incentive Stock Option held by the Participant will cease to be treated as an Incentive Stock Option and will be treated for tax purposes as a Nonstatutory Stock Option.

13. Transferability of Awards . Unless determined otherwise by the Administrator, an Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant. If the Administrator makes an Award

 

-14-


transferable, such Award will contain such additional terms and conditions as the Administrator deems appropriate.

14. Adjustments; Dissolution or Liquidation; Change in Control .

(a) Adjustments . In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, the Administrator, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under the Plan, will adjust the number and class of Shares that may be delivered under the Plan and/or the number, class, and price of Shares covered by each outstanding Award, and the numerical Share limits in Sections 3 and 11(b) of the Plan.

(b) Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, the Administrator will notify each Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it previously has not been exercised, an Award will terminate immediately prior to the consummation of such proposed action.

(c) Change in Control . In the event of a Change in Control, each outstanding Award will be treated as the Administrator determines, including, without limitation, that (i) Awards may be assumed, or substantially equivalent Awards will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the number and kind of shares and prices; (ii) upon written notice to a Participant, that the Participant’s Awards will terminate upon or immediately prior to the consummation of such Change in Control; (iii) outstanding Awards will vest and become exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, in whole or in part prior to or upon consummation of such Change in Control, and, to the extent the Administrator determines, terminate upon or immediately prior to the effectiveness of such merger or Change in Control; (iv) (A) the termination of an Award in exchange for an amount of cash and/or property, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s rights as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction the Administrator determines in good faith that no amount would have been attained upon the exercise of such Award or realization of the Participant’s rights, then such Award may be terminated by the Company without payment), or (B) the replacement of such Award with other rights or property selected by the Administrator in its sole discretion; or (v) any combination of the foregoing. In taking any of the actions permitted under this Section 14(c), the Administrator will not be required to treat all Awards similarly in the transaction.

In the event that the successor corporation does not assume or substitute for the Award, the Participant will fully vest in and have the right to exercise all of his or her outstanding Options and Stock Appreciation Rights, including Shares as to which such Awards would not otherwise be vested or exercisable, all restrictions on Restricted Stock and Restricted Stock Units will lapse, and, with respect to Awards with performance-based vesting, all performance goals or other vesting criteria will be deemed achieved at one hundred percent (100%) of target levels and

 

-15-


all other terms and conditions met. In addition, if an Option or Stock Appreciation Right is not assumed or substituted in the event of a Change in Control, the Administrator will notify the Participant in writing or electronically that the Option or Stock Appreciation Right will be exercisable for a period of time determined by the Administrator in its sole discretion, and the Option or Stock Appreciation Right will terminate upon the expiration of such period.

For the purposes of this subsection (c), an Award will be considered assumed if, following the Change in Control, the Award confers the right to purchase or receive, for each Share subject to the Award immediately prior to the Change in Control, the consideration (whether stock, cash, or other securities or property) received in the Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of an Option or Stock Appreciation Right or upon the payout of a Restricted Stock Unit, Performance Unit or Performance Share, for each Share subject to such Award, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the Change in Control.

Notwithstanding anything in this Section 14(c) to the contrary, an Award that vests, is earned or paid-out upon the satisfaction of one or more performance goals will not be considered assumed if the Company or its successor modifies any of such performance goals without the Participant’s consent; provided, however, a modification to such performance goals only to reflect the successor corporation’s post-Change in Control corporate structure will not be deemed to invalidate an otherwise valid Award assumption.

(d) Outside Director Awards . With respect to Awards granted to an Outside Director, in the event of a Change in Control, then the Participant will fully vest in and have the right to exercise Options and/or Stock Appreciation Rights as to all of the Shares underlying such Award, including those Shares which otherwise would not be vested or exercisable, all restrictions on Restricted Stock and Restricted Stock Units will lapse, and, with respect to Awards with performance-based vesting, all performance goals or other vesting criteria will be deemed achieved at one hundred percent (100%) of target levels and all other terms and conditions met.

15. Tax .

(a) Withholding Requirements . Prior to the delivery of any Shares or cash pursuant to an Award (or exercise thereof) or such earlier time as any tax withholding obligations are due, the Company will have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, local, foreign or other taxes (including the Participant’s FICA obligation) required to be withheld and any employer tax liability shifted to a Participant with respect to such Award (or exercise thereof).

 

-16-


(b) Withholding Arrangements . The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit a Participant to satisfy such tax withholding obligation, in whole or in part by (without limitation) (a) paying cash, (b) electing to have the Company withhold otherwise deliverable cash or Shares having a Fair Market Value equal to the minimum statutory amount required to be withheld, or (c) delivering to the Company already-owned Shares having a Fair Market Value equal to the minimum statutory amount required to be withheld. The Fair Market Value of the Shares withheld by the Company or delivered to the Company will be determined as of the date that such Shares are withheld or delivered, as applicable.

(c) Compliance With Code Section 409A . Awards will be designed and operated in such a manner that they are either exempt from the application of, or comply with, the requirements of Code Section 409A such that the grant, payment, settlement or deferral will not be subject to the additional tax or interest applicable under Code Section 409A, except as otherwise determined in the sole discretion of the Administrator. The Plan and each Award Agreement under the Plan is intended to meet the requirements of Code Section 409A and will be construed and interpreted in accordance with such intent, except as otherwise determined in the sole discretion of the Administrator. To the extent that an Award or payment, or the settlement or deferral thereof, is subject to Code Section 409A the Award will be granted, paid, settled or deferred in a manner that will meet the requirements of Code Section 409A, such that the grant, payment, settlement or deferral will not be subject to the additional tax or interest applicable under Code Section 409A.

16. No Effect on Employment or Service . Neither the Plan nor any Award will be interpreted as forming an employment or service relationship with the Company or any Parent or Subsidiary of the Company. Further, neither the Plan nor any Award will confer upon a Participant any right with respect to continuing the Participant’s relationship as a Service Provider with the Company or any Parent or Subsidiary of the Company, nor will they interfere in any way with the Participant’s right or the right of the Company or any Parent or Subsidiary, as applicable, to terminate such relationship at any time, with or without cause, to the extent permitted by Applicable Laws.

17. Date of Grant . The date of grant of an Award will be, for all purposes, the date on which the Administrator makes the determination granting such Award, or such other later date as is determined by the Administrator. Notice of the determination will be provided to each Participant within a reasonable time after the date of such grant.

18. Term of Plan . Subject to Section 22 of the Plan, the Plan will become effective upon the later to occur of (a) its adoption by the Board or (b) the business day immediately prior to the Registration Date. It will continue in effect for a term of ten (10) years from the date adopted by the Board, unless terminated earlier under Section 19 of the Plan.

19. Amendment and Termination of the Plan .

(a) Amendment and Termination . The Administrator may at any time amend, alter, suspend or terminate the Plan.

 

-17-


(b) Stockholder Approval . The Company will obtain stockholder approval of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws.

(c) Effect of Amendment or Termination . No amendment, alteration, suspension or termination of the Plan will materially impair the rights of any Participant, unless mutually agreed otherwise between the Participant and the Administrator, which agreement must be in writing and signed by the Participant and the Company. Termination of the Plan will not affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to Awards granted under the Plan prior to the date of such termination.

20. Conditions Upon Issuance of Shares .

(a) Legal Compliance . Shares will not be issued pursuant to the exercise of an Award unless the exercise of such Award and the issuance and delivery of such Shares will comply with Applicable Laws and will be further subject to the approval of counsel for the Company with respect to such compliance.

(b) Investment Representations . As a condition to the exercise of an Award, the Company may require the person exercising such Award to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required.

21. Inability to Obtain Authority . The inability of the Company to obtain authority from any regulatory body having jurisdiction or to complete or comply with the requirements of any registration or other qualification of the Shares under any state, federal or foreign law or under the rules and regulations of the Securities and Exchange Commission, the stock exchange on which Shares of the same class are then listed, or any other governmental or regulatory body, which authority, registration, qualification or rule compliance is deemed by the Company’s counsel to be necessary or advisable for the issuance and sale of any Shares hereunder, will relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority, registration, qualification or rule compliance will not have been obtained.

22. Stockholder Approval . The Plan will be subject to approval by the stockholders of the Company within twelve (12) months after the date the Plan is adopted by the Board. Such stockholder approval will be obtained in the manner and to the degree required under Applicable Laws.

 

-18-

Exhibit 10.5

A10 NETWORKS, INC.

2014 EMPLOYEE STOCK PURCHASE PLAN

1.         Purpose .   The purpose of the Plan is to provide employees of the Company and its Designated Companies with an opportunity to purchase Common Stock through accumulated Contributions. The Company intends for the Plan to have two components: a Code Section 423 Component (“423 Component”) and a non-Code Section 423 Component (“Non-423 Component”). The Company’s intention is to have the 423 Component of the Plan qualify as an “employee stock purchase plan” under Section 423 of the Code. The provisions of the 423 Component, accordingly, will be construed so as to extend and limit Plan participation in a uniform and nondiscriminatory basis consistent with the requirements of Section 423 of the Code. In addition, this Plan authorizes the grant of an option to purchase shares of Common Stock under the Non-423 Component that does not qualify as an “employee stock purchase plan” under Section 423 of the Code; such an option will be granted pursuant to rules, procedures, or sub-plans adopted by the Administrator designed to achieve tax, securities laws, or other objectives for Eligible Employees and the Company. Except as otherwise provided herein, the Non-423 Component will operate and be administered in the same manner as the 423 Component.

2.         Definitions .

(a)      “ Administrator ” means the Board or any Committee designated by the Board to administer the Plan pursuant to Section 14.

(b)      “ Affiliate ” means any entity, other than a Subsidiary, in which the Company has an equity or other ownership interest.

(c)      “ Applicable Laws ” means the requirements relating to the administration of equity-based awards under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any foreign country or jurisdiction where options are, or will be, granted under the Plan.

(d)      “ Board ” means the Board of Directors of the Company.

(e)      “ Change in Control ” means the occurrence of any of the following events:

    (i)     A change in the ownership of the Company which occurs on the date that any one person, or more than one person acting as a group (“ Person ”), acquires ownership of the stock of the Company that, together with the stock held by such Person, constitutes more than fifty percent (50%) of the total voting power of the stock of the Company; provided, however, that for purposes of this subsection, the acquisition of additional stock by any one Person, who is considered to own more than fifty percent (50%) of the total voting power of the stock of the Company will not be considered a Change in Control; or


     (ii)     A change in the effective control of the Company which occurs on the date that a majority of members of the Board is replaced during any twelve (12) month period by Directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election. For purposes of this clause (ii), if any Person is considered to be in effective control of the Company, the acquisition of additional control of the Company by the same Person will not be considered a Change in Control; or

    (iii)     A change in the ownership of a substantial portion of the Company’s assets which occurs on the date that any Person acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions; provided, however, that for purposes of this subsection, the following will not constitute a change in the ownership of a substantial portion of the Company’s assets: (A) a transfer to an entity that is controlled by the Company’s stockholders immediately after the transfer, or (B) a transfer of assets by the Company to: (1) a stockholder of the Company (immediately before the asset transfer) in exchange for or with respect to the Company’s stock, (2) an entity, fifty percent (50%) or more of the total value or voting power of which is owned, directly or indirectly, by the Company, (3) a Person, that owns, directly or indirectly, fifty percent (50%) or more of the total value or voting power of all the outstanding stock of the Company, or (4) an entity, at least fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a Person described in this subsection (iii)(B)(3). For purposes of this subsection, gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.

For purposes of this definition, persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company.

Notwithstanding the foregoing, a transaction will not be deemed a Change in Control unless the transaction qualifies as a change in control event within the meaning of Code Section 409A, as it has been and may be amended from time to time, and any proposed or final U.S. Treasury Regulations and Internal Revenue Service guidance that has been promulgated or may be promulgated thereunder from time to time.

Further and for the avoidance of doubt, a transaction will not constitute a Change in Control if: (i) its sole purpose is to change the state of the Company’s incorporation, or (ii) its sole purpose is to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.

 

2


(f)       “ Code ” means the U.S. Internal Revenue Code of 1986, as amended. Reference to a specific section of the Code or U.S. Treasury Regulation thereunder will include such section or regulation, any valid regulation or other official applicable guidance promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.

(g)      “ Committee ” means a committee of the Board appointed in accordance with Section 14 hereof.

(h)      “ Common Stock ” means the common stock of the Company.

(i)       “ Company ” means A10 Networks, Inc., a Delaware corporation, or any successor thereto.

(j)       “ Compensation ” means an Eligible Employee’s base straight time gross earnings, but exclusive of payments for incentive compensation, bonuses, payments for overtime and shift premium, equity compensation income and other similar compensation. The Administrator, in its discretion, may, on a uniform and nondiscriminatory basis, establish a different definition of Compensation for a subsequent Offering Period.

(k)      “ Contributions ” means the payroll deductions and other additional payments that the Company may permit to be made by a Participant to fund the exercise of options granted pursuant to the Plan.

(l)       “ Designated Company ” means any Subsidiary or Affiliate that has been designated by the Administrator from time to time in its sole discretion as eligible to participate in the Plan. For purposes of the 423 Component, only the Company and its Subsidiaries may be Designated Companies, provided, however that at any given time, a Subsidiary that is a Designated Company under the 423 Component will not be a Designated Company under the Non-423 Component.

(m)     “ Director ” means a member of the Board.

(n)      “ Eligible Employee ” means any individual who is a common law employee providing services to the Company or a Designated Company and is customarily employed for at least twenty (20) hours per week and more than five (5) months in any calendar year by the Employer, or any lesser number of hours per week and/or number of months in any calendar year established by the Administrator (if required under applicable local law) for purposes of any separate Offering or for Eligible Employees participating in the Non-423 Component. For purposes of the Plan, the employment relationship will be treated as continuing intact while the individual is on sick leave or other leave of absence that the Employer approves or is legally protected under Applicable Laws. Where the period of leave exceeds three (3) months and the individual’s right to reemployment is not guaranteed either by statute or by contract, the

 

3


employment relationship will be deemed to have terminated three (3) months and one (1) day following the commencement of such leave. The Administrator, in its discretion, from time to time may, prior to an Enrollment Date for all options to be granted on such Enrollment Date in an Offering, determine (on a uniform and nondiscriminatory basis or as otherwise permitted by Treasury Regulation Section 1.423-2) that the definition of Eligible Employee will or will not include an individual if he or she: (i) has not completed at least two (2) years of service since his or her last hire date (or such lesser period of time as may be determined by the Administrator in its discretion), (ii) customarily works not more than twenty (20) hours per week (or such lesser period of time as may be determined by the Administrator in its discretion), (iii) customarily works not more than five (5) months per calendar year (or such lesser period of time as may be determined by the Administrator in its discretion), (iv) is a highly compensated employee within the meaning of Section 414(q) of the Code, or (v) is a highly compensated employee within the meaning of Section 414(q) of the Code with compensation above a certain level or is an officer or subject to the disclosure requirements of Section 16(a) of the Exchange Act, provided the exclusion is applied with respect to each Offering in an identical manner to all highly compensated individuals of the Employer whose Employees are participating in that Offering. Each exclusion will be applied with respect to an Offering in a manner complying with U.S. Treasury Regulation Section 1.423-2(e)(2)(ii).

(o)      “ Employer ” means the employer of the applicable Eligible Employee(s).

(p)      “ Enrollment Date ” means the first Trading Day of each Offering Period.

(q)      “ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder.

(r)       “ Exercise Date ” means the last Trading Day of the Purchase Period, provided that the first Exercise Date under the Plan will be the first Trading Day on or before November 20, 2014. Notwithstanding the foregoing, in the event that an Offering Period is terminated prior to its expiration pursuant to Section 20(a), the Administrator, in its sole discretion, may determine that any Purchase Period also terminating under such Offering Period will terminate without options being exercised on the Exercise Date that otherwise would have occurred on the last Trading Day of such Purchase Period.

(s)       “ Fair Market Value ” means, as of any date and unless the Administrator determines otherwise, the value of Common Stock determined as follows:

      (i)     If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the New York Stock Exchange, NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market of The NASDAQ Stock Market, its Fair Market Value will be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the date of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;

 

4


(ii)      If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value will be the mean between the high bid and low asked prices for the Common Stock on the date of determination (or if no bids and asks were reported on that date, as applicable, on the last Trading Day such bids and asks were reported), as reported in The Wall Street Journal   or such other source as the Administrator deems reliable;

(iii)     In the absence of an established market for the Common Stock, the Fair Market Value thereof will be determined in good faith by the Administrator; or

(iv)     For purposes of the Enrollment Date of the first Offering Period under the Plan, the Fair Market Value will be the initial price to the public as set forth in the final prospectus included within the registration statement on Form S-1 filed with the Securities and Exchange Commission for the initial public offering of the Common Stock (the “Registration Statement”).

(t)      “ Fiscal Year ” means the fiscal year of the Company.

(u)     “ New Exercise Date ” means a new Exercise Date if the Administrator shortens any Offering Period then in progress.

(v)     “ Offering ” means an offer under the Plan of an option that may be exercised during an Offering Period as further described in Section 4. For purposes of the Plan, the Administrator may designate separate Offerings under the Plan (the terms of which need not be identical) in which Employees of one or more Employers will participate, even if the dates of the applicable Offering Periods of each such Offering are identical and the provisions of the Plan will separately apply to each Offering. To the extent permitted by U.S. Treasury Regulation Section 1.423-2(a)(1), the terms of each Offering need not be identical provided that the terms of the Plan and an Offering together satisfy U.S. Treasury Regulation Section 1.423-2(a)(2) and (a)(3).

(w)    “ Offering Periods ” means the periods of approximately twenty-four (24) months during which an option granted pursuant to the Plan may be exercised, (i) commencing on the first Trading Day on or after May 21 and November 21 of each year and terminating on the last Trading Day on or before May 20 and November 20, approximately twenty-four (24) months later; provided, however, that the first Offering Period under the Plan will commence with the first Trading Day on or after the date on which the Securities and Exchange Commission declares the Company’s Registration Statement effective and will end on the last Trading Day on or before May 20, 2016, and provided, further, that the second Offering Period under the Plan will commence on the first Trading Day on or after November 21, 2014. The duration and timing of Offering Periods may be changed pursuant to Sections 4, 20 and 30.

(x)     “ Parent ” means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code.

 

5


(y)       “ Participant ” means an Eligible Employee that participates in the Plan.

(z)       “ Plan ” means this A10 Networks, Inc. 2014 Employee Stock Purchase Plan.

(aa)     “ Purchase Period ” means the period during an Offering Period and during which shares of Common Stock may be purchased on a Participant’s behalf in accordance with the terms of the Plan. Unless the Administrator provides otherwise, Purchase Periods will be approximately six (6) month period commencing after one Exercise Date and ending with the next Exercise Date, except that the first Purchase Period of any Offering Period will commence on the Enrollment Date and end with the next Exercise Date.

(bb)     “ Purchase Price ” means an amount equal to eighty-five percent (85%) of the Fair Market Value of a share of Common Stock on the Enrollment Date or on the Exercise Date, whichever is lower; provided however, that the Purchase Price may be determined for subsequent Offering Periods by the Administrator subject to compliance with Section 423 of the Code (or any successor rule or provision or any other Applicable Law, regulation or stock exchange rule) or pursuant to Section 20.

(cc)     “ Registration Date ” means the effective date of the first registration statement that is filed by the Company and declared effective pursuant to Section 12(g) of the Exchange Act, with respect to any class of the Company’s securities.

(dd)     “ Subsidiary ” means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.

(ee)     “ Trading Day ” means a day on which the national stock exchange upon which the Common Stock is listed is open for trading.

(ff)       “ U.S. Treasury Regulations ” means the Treasury regulations of the Code. Reference to a specific Treasury Regulation or Section of the Code will include such Treasury Regulation or Section, any valid regulation promulgated under such Section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such Section or regulation.

3.         Eligibility .

(a)        First Offering Period . Any individual who is an Eligible Employee immediately prior to the first Offering Period will be automatically enrolled in the first Offering Period.

(b)        Subsequent Offering Periods . Any Eligible Employee on a given Enrollment Date subsequent to the first Offering Period will be eligible to participate in the Plan, subject to the requirements of Section 5.

 

6


(c)       Non-U.S. Employees . Eligible Employees who are citizens or residents of a non-U.S. jurisdiction (without regard to whether they also are citizens or residents of the United States or resident aliens (within the meaning of Section 7701(b)(1)(A) of the Code)) may be excluded from participation in the Plan or an Offering if the participation of such Eligible Employees is prohibited under the laws of the applicable jurisdiction or if complying with the laws of the applicable jurisdiction would cause the Plan or an Offering to violate Section 423 of the Code. In the case of the Non-423 Component, Eligible Employees may be excluded from participation in the Plan or an Offering if the Administrator has determined that participation of such Eligible Employees is not advisable or practicable.

(d)       Limitations . Any provisions of the Plan to the contrary notwithstanding, no Eligible Employee will be granted an option under the Plan (i) to the extent that, immediately after the grant, such Eligible Employee (or any other person whose stock would be attributed to such Eligible Employee pursuant to Section 424(d) of the Code) would own capital stock of the Company or any Parent or Subsidiary of the Company and/or hold outstanding options to purchase such stock possessing five percent (5%) or more of the total combined voting power or value of all classes of the capital stock of the Company or of any Parent or Subsidiary of the Company, or (ii) to the extent that his or her rights to purchase stock under all employee stock purchase plans (as defined in Section 423 of the Code) of the Company or any Parent or Subsidiary of the Company accrues at a rate, which exceeds twenty-five thousand dollars ($25,000) worth of stock (determined at the Fair Market Value of the stock at the time such option is granted) for each calendar year in which such option is outstanding at any time, as determined in accordance with Section 423 of the Code and the regulations thereunder.

4.         Offering Periods . The Plan will be implemented by consecutive, overlapping Offering Periods with a new Offering Period commencing on the first Trading Day on or after May 21 and November 21 each year, or on such other date as the Administrator will determine; provided, however, that the first Offering Period under the Plan will commence with the first Trading Day on or after the date upon which the Company’s Registration Statement is declared effective by the Securities and Exchange Commission and end on the last Trading Day on or before May 20, 2016, and provided, further, that the second Offering Period under the Plan will commence on the first Trading Day on or after November 21, 2014. The Administrator will have the power to change the duration of Offering Periods (including the commencement dates thereof) with respect to future Offerings without stockholder approval if such change is announced prior to the scheduled beginning of the first Offering Period to be affected thereafter; provided, however, that no Offering Period may last more than twenty-seven (27) months.

5.         Participation .

(a)       First Offering Period . An Eligible Employee will be entitled to continue to participate in the first Offering Period pursuant to Section 3(a) only if such individual submits a subscription agreement authorizing Contributions in a form determined by the Administrator (which may be similar to the form attached hereto as Exhibit A ) to the Company’s designated plan administrator (i) no earlier than the

 

7


effective date of the Form S-8 registration statement with respect to the issuance of Common Stock under this Plan and (ii) no later than ten (10) business days following the effective date of such S-8 registration statement or such other period of time as the Administrator may determine (the “Enrollment Window”). An Eligible Employee’s failure to submit the subscription agreement during the Enrollment Window will result in the automatic termination of such individual’s participation in the first Offering Period.

(b)       Subsequent Offering Periods . An Eligible Employee may participate in the Plan pursuant to Section 3(b) by (i) submitting to the Company’s stock administration office (or its designee), on or before a date determined by the Administrator prior to an applicable Enrollment Date, a properly completed subscription agreement authorizing Contributions in the form provided by the Administrator for such purpose, or (ii) following an electronic or other enrollment procedure determined by the Administrator.

6.         Contributions .

(a)      At the time a Participant enrolls in the Plan pursuant to Section 5, he or she will elect to have Contributions (in the form of payroll deductions or otherwise, to the extent permitted by the Administrator) made on each pay day during the Offering Period in an amount not exceeding fifteen percent (15%) of the Compensation, which he or she receives on each pay day during the Offering Period. The Administrator, in its sole discretion, may permit all Participants in a specified Offering to contribute amounts to the Plan through payment by cash, check or other means set forth in the subscription agreement prior to each Exercise Date of each Purchase Period. A Participant’s subscription agreement will remain in effect for successive Offering Periods unless terminated as provided in Section 10 hereof.

(b)      In the event Contributions are made in the form of payroll deductions, such payroll deductions for a Participant will commence on the first pay day following the Enrollment Date and will end on the last pay day on or prior to the last Exercise Date of such Offering Period to which such authorization is applicable, unless sooner terminated by the Participant as provided in Section 10 hereof; provided, however, that for the first Offering Period, payroll deductions will commence on the first pay day on or following the end of the Enrollment Window.

(c)      All Contributions made for a Participant will be credited to his or her account under the Plan and Contributions will be made in whole percentages only. A Participant may not make any additional payments into such account.

(d)      A Participant may discontinue his or her participation in the Plan as provided under Section 10. Unless otherwise determined by the Administrator, during a Purchase Period, a Participant may not increase the rate of his or her Contributions and may only decrease the rate of his or her Contributions one (1) time and such decrease must be to a Contribution rate of zero percent (0%). Any such decrease during a Purchase Period requires the Participant (i) properly completing and submitting to the Company’s stock administration office (or its designee), on or before a date determined by the Administrator prior to an

 

8


applicable Exercise Date, a new subscription agreement authorizing the change in Contribution rate in the form provided by the Administrator for such purpose, or (ii) following an electronic or other procedure prescribed by the Administrator. If a Participant has not followed such procedures to change the rate of Contributions, the rate of his or her Contributions will continue at the originally elected rate throughout the Purchase Period and future Offering Periods and Purchase Periods (unless the Participant’s participation is terminated as provided in Sections 10 or 11). The Administrator may, in its sole discretion, amend the nature and/or number of Contribution rate changes that may be made by Participants during any Offering Period or Purchase Period and may establish other conditions or limitations as it deems appropriate for Plan administration. Any change in payroll deduction rate made pursuant to this Section 6(d) will be effective as of the first (1 st ) full payroll period following five (5) business days after the date on which the change is made by the Participant (unless the Administrator, in its sole discretion, elects to process a given change in payroll deduction rate more quickly).

(e)        Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code and Section 3(d), a Participant’s Contributions may be decreased to zero percent (0%) at any time during a Purchase Period. Subject to Section 423(b)(8) of the Code and Section 3(d) hereof, Contributions will recommence at the rate originally elected by the Participant effective as of the beginning of the first Purchase Period scheduled to end in the following calendar year, unless terminated by the Participant as provided in Section 10.

(f)         Notwithstanding any provisions to the contrary in the Plan, the Administrator may allow Eligible Employees to participate in the Plan via cash contributions instead of payroll deductions if (i) payroll deductions are not permitted under applicable local law, (ii) the Administrator determines that cash contributions are permissible under Section 423 of the Code; or (iii) for Participants participating in the Non-423 Component.

(g)        At the time the option is exercised, in whole or in part, or at the time some or all of the Common Stock issued under the Plan is disposed of (or any other time that a taxable event related to the Plan occurs), the Participant must make adequate provision for the Company’s or Employer’s federal, state, local or any other tax liability payable to any authority including taxes imposed by jurisdictions outside of the U.S., national insurance, social security or other tax withholding obligations, if any, which arise upon the exercise of the option or the disposition of the Common Stock (or any other time that a taxable event related to the Plan occurs). At any time, the Company or the Employer may, but will not be obligated to, withhold from the Participant’s compensation the amount necessary for the Company or the Employer to meet applicable withholding obligations, including any withholding required to make available to the Company or the Employer any tax deductions or benefits attributable to sale or early disposition of Common Stock by the Eligible Employee. In addition, the Company or the Employer may, but will not be obligated to, withhold from the proceeds of the sale of Common Stock or any other method of withholding the Company or the Employer deems appropriate to the extent permitted by U.S. Treasury Regulation Section 1.423-2(f).

 

9


7.         Grant of Option . On the Enrollment Date of each Offering Period, each Eligible Employee participating in such Offering Period will be granted an option to purchase on each Exercise Date during such Offering Period (at the applicable Purchase Price) up to a number of shares of Common Stock determined by dividing such Eligible Employee’s Contributions accumulated prior to such Exercise Date and retained in the Eligible Employee’s account as of the Exercise Date by the applicable Purchase Price; provided that in no event will an Eligible Employee be permitted to purchase during each Purchase Period more than 1,500 shares of Common Stock (subject to any adjustment pursuant to Section 19) and provided further that such purchase will be subject to the limitations set forth in Sections 3(d) and 13. The Eligible Employee may accept the grant of such option (i) with respect to the first Offering Period by submitting a properly completed subscription agreement in accordance with the requirements of Section 5 on or before the last day of the Enrollment Window, and (ii) with respect to any subsequent Offering Period under the Plan, by electing to participate in the Plan in accordance with the requirements of Section 5. The Administrator may, for future Offering Periods, increase or decrease, in its absolute discretion, the maximum number of shares of Common Stock that an Eligible Employee may purchase during each Purchase Period or Offering Period. Exercise of the option will occur as provided in Section 8, unless the Participant has withdrawn pursuant to Section 10. The option will expire on the last day of the Offering Period.

8.         Exercise of Option .

(a)        Unless a Participant withdraws from the Plan as provided in Section 10, his or her option for the purchase of shares of Common Stock will be exercised automatically on the Exercise Date, and the maximum number of full shares subject to the option will be purchased for such Participant at the applicable Purchase Price with the accumulated Contributions from his or her account. No fractional shares of Common Stock will be purchased; any Contributions accumulated in a Participant’s account, which are not sufficient to purchase a full share will be retained in the Participant’s account for the subsequent Purchase Period or Offering Period, subject to earlier withdrawal by the Participant as provided in Section 10. Any other funds left over in a Participant’s account after the Exercise Date will be returned to the Participant. During a Participant’s lifetime, a Participant’s option to purchase shares hereunder is exercisable only by him or her.

(b)        If the Administrator determines that, on a given Exercise Date, the number of shares of Common Stock with respect to which options are to be exercised may exceed (i) the number of shares of Common Stock that were available for sale under the Plan on the Enrollment Date of the applicable Offering Period, or (ii) the number of shares of Common Stock available for sale under the Plan on such Exercise Date, the Administrator may in its sole discretion (x) provide that the Company will make a pro rata allocation of the shares of Common Stock available for purchase on such Enrollment Date or Exercise Date, as applicable, in as uniform a manner as will be practicable and as it will determine in its sole discretion to be equitable among all Participants exercising options to purchase Common Stock on such Exercise Date, and continue all Offering Periods then in effect or (y) provide that the Company will make a pro rata allocation of the shares available for purchase on such Enrollment Date or Exercise Date, as applicable, in as

 

10


uniform a manner as will be practicable and as it will determine in its sole discretion to be equitable among all participants exercising options to purchase Common Stock on such Exercise Date, and terminate any or all Offering Periods then in effect pursuant to Section 20. The Company may make a pro rata allocation of the shares available on the Enrollment Date of any applicable Offering Period pursuant to the preceding sentence, notwithstanding any authorization of additional shares for issuance under the Plan by the Company’s stockholders subsequent to such Enrollment Date.

9.         Delivery . As soon as reasonably practicable after each Exercise Date on which a purchase of shares of Common Stock occurs, the Company will arrange the delivery to each Participant of the shares purchased upon exercise of his or her option in a form determined by the Administrator (in its sole discretion) and pursuant to rules established by the Administrator. The Company may permit or require that shares be deposited directly with a broker designated by the Company or to a designated agent of the Company, and the Company may utilize electronic or automated methods of share transfer. The Company may require that shares be retained with such broker or agent for a designated period of time and/or may establish other procedures to permit tracking of disqualifying dispositions of such shares. No Participant will have any voting, dividend, or other stockholder rights with respect to shares of Common Stock subject to any option granted under the Plan until such shares have been purchased and delivered to the Participant as provided in this Section 9.

10.       Withdrawal .

(a)        A Participant may withdraw all but not less than all the Contributions credited to his or her account and not yet used to exercise his or her option under the Plan at any time by (i) submitting to the Company’s stock administration office (or its designee) a written notice of withdrawal in the form determined by the Administrator for such purpose (which may be similar to the form attached hereto as Exhibit B), or (ii) following an electronic or other withdrawal procedure determined by the Administrator. All of the Participant’s Contributions credited to his or her account will be paid to such Participant promptly after receipt of notice of withdrawal and such Participant’s option for the Offering Period will be automatically terminated, and no further Contributions for the purchase of shares will be made for such Offering Period. If a Participant withdraws from an Offering Period, Contributions will not resume at the beginning of the succeeding Offering Period, unless the Participant re-enrolls in the Plan in accordance with the provisions of Section 5.

(b)        A Participant’s withdrawal from an Offering Period will not have any effect upon his or her eligibility to participate in any similar plan that may hereafter be adopted by the Company or in succeeding Offering Periods that commence after the termination of the Offering Period from which the Participant withdraws.

11.       Termination of Employment . Upon a Participant’s ceasing to be an Eligible Employee, for any reason, he or she will be deemed to have elected to withdraw from the Plan and the Contributions

 

11


credited to such Participant’s account during the Offering Period but not yet used to purchase shares of Common Stock under the Plan will be returned to such Participant or, in the case of his or her death, to the person or persons entitled thereto under Section 15, and such Participant’s option will be automatically terminated. A Participant whose employment transfers between entities through a termination with an immediate rehire (with no break in service) by the Company or a Designated Company will not be treated as terminated under the Plan; however, if a Participant transfers from an Offering under the 423 Component to the Non-423 Component, the exercise of the option will be qualified under the 423 Component only to the extent it complies with Section 423 of the Code.

12.       Interest .  No interest will accrue on the Contributions of a participant in the Plan, except as may be required by Applicable Law, as determined by the Company, and if so required by the laws of a particular jurisdiction, will apply to all Participants in the relevant Offering under the 423 Component, except to the extent otherwise permitted by U.S. Treasury Regulation Section 1.423-2(f).

13.       Stock .

(a)        Subject to adjustment upon changes in capitalization of the Company as provided in Section 19 hereof, the maximum number of shares of Common Stock that will be made available for sale under the Plan will be 1,600,000 shares of Common Stock. The number of shares of Common Stock available for issuance under the Plan will be increased on the first day of each Fiscal Year beginning with the 2015 Fiscal Year equal to the least of (i) 3,500,000 shares of Common Stock, (ii) one percent (1%) of the outstanding shares of Common Stock on the last day of the immediately preceding Fiscal Year, or (iii) an amount determined by the Administrator.

(b)        Until the shares of Common Stock are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), a Participant will have only the rights of an unsecured creditor with respect to such shares, and no right to vote or receive dividends or any other rights as a stockholder will exist with respect to such shares.

(c)        Shares of Common Stock to be delivered to a Participant under the Plan will be registered in the name of the Participant or in the name of the Participant and his or her spouse.

14.       Administration . The Plan will be administered by the Board or a Committee appointed by the Board, which Committee will be constituted to comply with Applicable Laws. The Administrator will have full and exclusive discretionary authority to construe, interpret and apply the terms of the Plan, to designate separate Offerings under the Plan, to designate Subsidiaries and Affiliates as participating in the 423 Component or Non-423 Component, to determine eligibility, to adjudicate all disputed claims filed under the Plan and to establish such procedures that it deems necessary for the administration of the Plan (including, without limitation, to adopt such procedures and sub-plans as are necessary or appropriate to permit the participation in the Plan by employees who are foreign nationals or employed outside the U.S., the terms of which sub-plans may take precedence over other provisions of this Plan, with the exception of

 

12


Section 13(a) hereof, but unless otherwise superseded by the terms of such sub-plan, the provisions of this Plan will govern the operation of such sub-plan). Unless otherwise determined by the Administrator, the Employees eligible to participate in each sub-plan will participate in a separate Offering or in the Non-423 Component. Without limiting the generality of the foregoing, the Administrator is specifically authorized to adopt rules and procedures regarding eligibility to participate, the definition of Compensation, handling of Contributions, making of Contributions to the Plan (including, without limitation, in forms other than payroll deductions), establishment of bank or trust accounts to hold Contributions, payment of interest, conversion of local currency, obligations to pay payroll tax, determination of beneficiary designation requirements, withholding procedures and handling of stock certificates that vary with applicable local requirements. The Administrator also is authorized to determine that, to the extent permitted by U.S. Treasury Regulation Section 1.423-2(f), the terms of an option granted under the Plan or an Offering to citizens or residents of a non-U.S. jurisdiction will be less favorable than the terms of options granted under the Plan or the same Offering to employees resident solely in the U.S. Every finding, decision and determination made by the Administrator will, to the full extent permitted by law, be final and binding upon all parties.

15.       Designation of Beneficiary .

(a)        If permitted by the Administrator, a Participant may file a designation of a beneficiary who is to receive any shares of Common Stock and cash, if any, from the Participant’s account under the Plan in the event of such Participant’s death subsequent to an Exercise Date on which the option is exercised but prior to delivery to such Participant of such shares and cash. In addition, if permitted by the Administrator, a Participant may file a designation of a beneficiary who is to receive any cash from the Participant’s account under the Plan in the event of such Participant’s death prior to exercise of the option. If a Participant is married and the designated beneficiary is not the spouse, spousal consent will be required for such designation to be effective.

(b)        Such designation of beneficiary may be changed by the Participant at any time by notice in a form determined by the Administrator. In the event of the death of a Participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such Participant’s death, the Company will deliver such shares and/or cash to the executor or administrator of the estate of the Participant, or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such shares and/or cash to the spouse or to any one or more dependents or relatives of the Participant, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate.

(c)        All beneficiary designations will be in such form and manner as the Administrator may designate from time to time. Notwithstanding Sections 15(a) and (b) above, the Company and/or the Administrator may decide not to permit such designations by Participants in non-U.S. jurisdictions to the extent permitted by U.S. Treasury Regulation Section 1.423-2(f).

 

13


16.         Transferability .  Neither Contributions credited to a Participant’s account nor any rights with regard to the exercise of an option or to receive shares of Common Stock under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws of descent and distribution or as provided in Section 15 hereof) by the Participant. Any such attempt at assignment, transfer, pledge or other disposition will be without effect, except that the Company may treat such act as an election to withdraw funds from an Offering Period in accordance with Section 10 hereof.

17.         Use of Funds .  The Company may use all Contributions received or held by it under the Plan for any corporate purpose, and the Company will not be obligated to segregate such Contributions except under Offerings or for Participants in the Non-423 Component for which Applicable Laws require that Contributions to the Plan by Participants be segregated from the Company’s general corporate funds and/or deposited with an independent third party. Until shares of Common Stock are issued, Participants will have only the rights of an unsecured creditor with respect to such shares.

18.         Reports .  Individual accounts will be maintained for each Participant in the Plan. Statements of account will be given to participating Eligible Employees at least annually, which statements will set forth the amounts of Contributions, the Purchase Price, the number of shares of Common Stock purchased and the remaining cash balance, if any.

19.         Adjustments, Dissolution, Liquidation, Merger or Change in Control .

  (a)         Adjustments .  In the event that any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Common Stock or other securities of the Company, or other change in the corporate structure of the Company affecting the Common Stock occurs, the Administrator, in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, will, in such manner as it may deem equitable, adjust the number and class of Common Stock that may be delivered under the Plan, the Purchase Price per share and the number of shares of Common Stock covered by each option under the Plan that has not yet been exercised, and the numerical limits of Sections 7 and 13.

  (b)         Dissolution or Liquidation .  In the event of the proposed dissolution or liquidation of the Company, any Offering Period then in progress will be shortened by setting a New Exercise Date, and will terminate immediately prior to the consummation of such proposed dissolution or liquidation, unless provided otherwise by the Administrator. The New Exercise Date will be before the date of the Company’s proposed dissolution or liquidation. The Administrator will notify each Participant in writing or electronically, prior to the New Exercise Date, that the Exercise Date for the Participant’s option has been changed to the New Exercise Date and that the Participant’s option will be exercised automatically on the New Exercise Date, unless prior to such date the Participant has withdrawn from the Offering Period as provided in Section 10 hereof.

 

14


  (c)         Merger or Change in Control .  In the event of a merger or Change in Control, each outstanding option will be assumed or an equivalent option substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. In the event that the successor corporation refuses to assume or substitute for the option, the Offering Period with respect to which such option relates will be shortened by setting a New Exercise Date on which such Offering Period will end. The New Exercise Date will occur before the date of the Company’s proposed merger or Change in Control. The Administrator will notify each Participant in writing or electronically prior to the New Exercise Date, that the Exercise Date for the Participant’s option has been changed to the New Exercise Date and that the Participant’s option will be exercised automatically on the New Exercise Date, unless prior to such date the Participant has withdrawn from the Offering Period as provided in Section 10 hereof.

20.         Amendment or Termination .

  (a)        The Administrator, in its sole discretion, may amend, suspend, or terminate the Plan, or any part thereof, at any time and for any reason. If the Plan is terminated, the Administrator, in its discretion, may elect to terminate all outstanding Offering Periods either immediately or upon completion of the purchase of shares of Common Stock on the next Exercise Date (which may be sooner than originally scheduled, if determined by the Administrator in its discretion), or may elect to permit Offering Periods to expire in accordance with their terms (and subject to any adjustment pursuant to Section 19). If the Offering Periods are terminated prior to expiration, all amounts then credited to Participants’ accounts that have not been used to purchase shares of Common Stock will be returned to the Participants (without interest thereon, except as otherwise required under Applicable Laws, as further set forth in Section 12 hereof) as soon as administratively practicable.

  (b)        Without stockholder consent and without limiting Section 20(a), the Administrator will be entitled to change the Offering Periods or Purchase Periods, designate separate Offerings, limit the frequency and/or number of changes in the amount withheld during an Offering Period, establish the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars, permit Contributions in excess of the amount designated by a Participant in order to adjust for delays or mistakes in the Company’s processing of properly completed Contribution elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Common Stock for each Participant properly correspond with Contribution amounts, and establish such other limitations or procedures as the Administrator determines in its sole discretion advisable that are consistent with the Plan.

  (c)        In the event the Administrator determines that the ongoing operation of the Plan may result in unfavorable financial accounting consequences, the Administrator may, in its discretion and, to the extent necessary or desirable, modify, amend or terminate the Plan to reduce or eliminate such accounting consequence including, but not limited to:

        (i)      amending the Plan to conform with the safe harbor definition under the Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor thereto), including with respect to an Offering Period underway at the time;

 

15


         (ii)      altering the Purchase Price for any Offering Period or Purchase Period including an Offering Period or Purchase Period underway at the time of the change in Purchase Price;

        (iii)      shortening any Offering Period or Purchase Period by setting a New Exercise Date, including an Offering Period or Purchase Period underway at the time of the Administrator action;

        (iv)      reducing the maximum percentage of Compensation a Participant may elect to set aside as Contributions; and

         (v)      reducing the maximum number of Shares a Participant may purchase during any Offering Period or Purchase Period.

Such modifications or amendments will not require stockholder approval or the consent of any Participants.

21.         Notices .  All notices or other communications by a Participant to the Company under or in connection with the Plan will be deemed to have been duly given when received in the form and manner specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.

22.         Conditions Upon Issuance of Shares .   Shares of Common Stock will not be issued with respect to an option unless the exercise of such option and the issuance and delivery of such shares pursuant thereto will comply with all applicable provisions of law, domestic or foreign, including, without limitation, the U.S. Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the shares may then be listed, and will be further subject to the approval of counsel for the Company with respect to such compliance.

  As a condition to the exercise of an option, the Company may require the person exercising such option to represent and warrant at the time of any such exercise that the shares are being purchased only for investment and without any present intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned applicable provisions of law.

23.         Code Section 409A.   The 423 Component of the Plan is exempt from the application of Code Section 409A and any ambiguities herein will be interpreted to so be exempt from Code Section 409A. In furtherance of the foregoing and notwithstanding any provision in the Plan to the contrary, if the Administrator determines that an option granted under the Plan may be subject to Code Section 409A or that any provision in the Plan would cause an option under the Plan to be subject to Code Section 409A, the

 

16


Administrator may amend the terms of the Plan and/or of an outstanding option granted under the Plan, or take such other action the Administrator determines is necessary or appropriate, in each case, without the Participant’s consent, to exempt any outstanding option or future option that may be granted under the Plan from or to allow any such options to comply with Code Section 409A, but only to the extent any such amendments or action by the Administrator would not violate Code Section 409A. Notwithstanding the foregoing, the Company will have no liability to a Participant or any other party if the option to purchase Common Stock under the Plan that is intended to be exempt from or compliant with Code Section 409A is not so exempt or compliant or for any action taken by the Administrator with respect thereto. The Company makes no representation that the option to purchase Common Stock under the Plan is compliant with Code Section 409A.

    24.         Term of Plan .  The Plan will become effective upon the later to occur of (a) its adoption by the Board or (b) the business day immediately prior to the Registration Date. It will continue in effect for a term of twenty (20) years, unless sooner terminated under Section 20.

    25.         Stockholder Approval .  The Plan will be subject to approval by the stockholders of the Company within twelve (12) months after the date the Plan is adopted by the Board. Such stockholder approval will be obtained in the manner and to the degree required under Applicable Laws.

    26.         Governing Law .  The Plan will be governed by, and construed in accordance with, the laws of the State of California (except its choice-of-law provisions).

    27.         No Right to Employment .  Participation in the Plan by a Participant will not be construed as giving a Participant the right to be retained as an employee of the Company or a Subsidiary or Affiliate, as applicable. Further, the Company or a Subsidiary or Affiliate may dismiss a Participant from employment at any time, free from any liability or any claim under the Plan.

    28.         Severability .  If any provision of the Plan is or becomes or is deemed to be invalid, illegal, or unenforceable for any reason in any jurisdiction or as to any Participant, such invalidity, illegality or unenforceability will not affect the remaining parts of the Plan, and the Plan will be construed and enforced as to such jurisdiction or Participant as if the invalid, illegal or unenforceable provision had not been included.

29.      Compliance with Applicable Laws .  The terms of this Plan are intended to comply with all Applicable Laws and will be construed accordingly.

30.      Automatic Transfer to Low Price Offering Period .  To the extent permitted by Applicable Laws, if the Fair Market Value of the Common Stock on any Exercise Date in an Offering Period is lower than the Fair Market Value of the Common Stock on the Enrollment Date of such Offering Period, then all Participants in such Offering Period automatically will be withdrawn from such Offering Period immediately after the exercise of their option on such Exercise Date and automatically re-enrolled in the immediately following Offering Period as of the first day thereof.

 

17

Exhibit 10.6        

July 30, 2004

Lee Chen,

I am pleased to confirm the offer for you to join RAKSHA Networks, Inc., a California corporation (the “Company”), as its CEO at our San Jose headquarters. This is a full-time permanent position. You will be reporting to the President of the Company.

Your starting salary will be zero U.S. dollars.

You will be granted options or the opportunity to purchase the Company’s Common Stock for certain amount to be discussed, subject to the terms and conditions of the Company’s 2004 Stock Plan. Generally speaking, those terms will include, in your case, among other things, vesting as to 1/4 of the shares after 1 year of employment, and an additional 1/48th of the shares at the end of each additional month thereafter.

Your starting date will be August 25, 2004. Please confirm your acceptance by signing a copy of this letter below and confirming your first date of employment

I look forward to a favorable reply and to welcoming you to RAKSHA Networks, Inc.

 

Sincerely,

/s/ Lee Chen

Lee Chen
President

 

Acknowledged and Accepted:

/s/ Lee Chen

Lee Chen

Date:  

8/4/2004

Start Date:  

8/25/2004

Exhibit 10.7        

November 3, 2008

R AJKUMAR J ALAN

prjalan@yahoo.com

DELIVERED BY HAND OR EMAIL

Dear Raj:

I am pleased to confirm the offer for you to join Al 0 Networks, Inc., a California corporation (the “Company”), as its CTO at our San Jose headquarters. This is a full-time permanent position. You will be reporting to Lee Chen, the Company’s President and CEO.

Your starting salary will be at a rate of $150,000 per year, payable in accordance with the company’s payroll schedule.

You will also be granted options or the opportunity to purchase 150,000 shares of the Company’s Common Stock, subject to the terms and conditions of the Company’s 2008 Stock Plan. Generally speaking, those terms will include, in your case, among other things, vesting as to 1/4 of the shares after 1 year of employment, and an additional 1/48th of the shares at the end of each additional month thereafter.

You will be entitled to receive the Company’s employee benefits made available to other employees at your level to the full extent of your eligibility, once such benefits are established.

Your employment will be subject to your execution of the Company’s standard form of Employee Agreement (relating to non-disclosure of confidential information and assignment of inventions to the Company), a copy of which is available upon request.

If this offer meets your approval, please confirm your acceptance by signing a copy of this letter below and confirming your first date of employment. This offer is valid for five (5) business days following your receipt of this letter; and assumes a proposed start date not later than November 16, 2008. The terms and conditions of this offer letter supersede any prior written or oral communications to you concerning employment at the Company.


R AJKUMAR J ALAN

November 3, 2008

Page 2

 

I look forward to a favorable reply and to welcoming you to A10 Networks, Inc.

 

Sincerely,

/s/ Lee Chen

Lee Chen
President and CEO

 

Acknowledged and accepted:

/s/ Rajkumar Jalan

R AJKUMAR J ALAN
Date:  

11-16-2008

Start Date:  

11-16-2008

Exhibit 10.8

May 31, 2011

Greg L. Straughn

[PRIVATE ADDRESS]

Dear Greg:

I am pleased to confirm the offer for you to join A10 Networks, Inc., a California corporation (the “Company”), as its Chief Financial Officer (CFO) at our San Jose headquarters. This is a full-time permanent position. You will be reporting to the President of A10/Lee Chen.

Your starting salary will be at a rate of $250,000 per year, payable in accordance with the company’s payroll schedule. You will have the Management by Objectives (MBO) Bonus of $30,000. The MBO will be pending on the completion of filing the S-1 registration with the SEC no later than August 26, 2012.

You will also be granted options or the opportunity to purchase 910,000 shares of the Company’s Common Stock, subject to the terms and conditions of the Company’s 2008 Stock Plan. Generally speaking, those terms will include, in your case, among other things, vesting as to 1/4 of the shares after 1 year of employment, and an additional 1/48th of the shares at the end of each additional month thereafter. However, the vesting of your options will be subject to a special acceleration of fifty percent (50%) of the number of shares then unvested upon and in the event of any acquisition or merger of the Company, if such transaction involves a change of control.

As a key member of the Executive Management team, you will have the primary day-to-day responsibility for planning, implementing, managing and controlling all financial-related activities of the company. You will also be responsible for the management of Human Resource (HR) department.

You will be entitled to receive the Company’s employee benefits made available to other employees at your level to the full extent of your eligibility, once such benefits are established.

Your employment will be subject to your execution of the Company’s standard form of Employee Agreement (relating to non-disclosure of confidential information and assignment of inventions to the Company), a copy of which is available upon request.

If this offer meets your approval, please confirm your acceptance by signing a copy of this letter below and confirming your first date of employment. This offer is valid for five (5) business days following your receipt of this letter; and assumes a proposed start date not later than July 1, 2011. The terms and conditions of this offer letter supersede any prior written or oral communications to you concerning employment at the Company.


Greg L. Straughn

5/31/2011

Page 2

 

I look forward to a favorable reply and to welcoming you to A10 Networks, Inc.

 

Sincerely,

/s/ Lee Chen            

Lee Chen
President and CEO

 

Acknowledged and accepted:

/s/ Greg Straughn            

Greg L. Straughn
Date:  

May 31, 2011            

Start Date:  

June 27, 2011            

Exhibit 10.9        

January 4, 2012

Robert D. Cochran

[PRIVATE ADDRESS]

Dear Rob:

I am pleased to confirm the offer for you to join A10 Networks, Inc., a California corporation (the “Company”), as its Vice President, Legal and Corporate Collaboration at our San Jose headquarters. This is a full-time permanent position. You will be reporting to the President of A10/Lee Chen.

Your starting salary will be at a rate of $240,000 per year, payable in accordance with the company’s payroll schedule. You will have the Management by Objectives (MBO) Bonus of $40,000. The MBO will be pending on your first year performance, subjecting itself to the review of A10’s CEO.

You will also be granted options or the opportunity to purchase 890,000 shares of the Company’s Common Stock, subject to the terms and conditions of the Company’s 2008 Stock Plan. Generally speaking, those terms will include, in your case, among other things, vesting as to 1/4 of the shares after 1 year of employment, and an additional 1/48th of the shares at the end of each additional month thereafter. However, the vesting of your options will be subject to a special acceleration of fifty percent (50%) of the number of shares then unvested upon and in the event of any acquisition or merger of the Company, if such transaction involves a change of control.

As a key member of the Executive Management team, you will have the primary day-to-day responsibility to oversee all legal matters, including corporate governance, intellectual property, litigation and security compliance, as well as government affairs. You will also be the Corporate Collaboration Leader. You will work with executives to accomplish a share purpose and to advance business goals in a timely manner.

You will be entitled to receive the Company’s employee benefits made available to other employees at your level to the full extent of your eligibility, once such benefits are established.

Your employment will be subject to your execution of the Company’s standard form of Employee Agreement (relating to non-disclosure of confidential information and assignment of inventions to the Company), a copy of which is available upon request.

If this offer meets your approval, please confirm your acceptance by signing a copy of this letter below and confirming your first date of employment. This offer is valid for six (6) business days following your receipt of this letter; and assumes a proposed start date not later than January 12,


Robert D. Cochran

1/4/2012

Page 2

 

2012. The terms and conditions of this offer letter supersede any prior written or oral communications to you concerning employment at the Company.

I look forward to a favorable reply and to welcoming you to A10 Networks, Inc.

 

Sincerely,

/s/ Lee Chen

Lee Chen
President and CEO

 

Acknowledged and accepted:

/s/ Robert D. Cochran

Robert D. Cochran
Date:  

1/5/12

 

Start Date:  

1/12/12

Exhibit 10.10        

July 18, 2013

Mr. Ray Smets

[PRIVATE ADDRESS]

Dear Ray:

I am pleased to confirm the offer for you to join A10 Networks, Inc., a California corporation (the “Company”), as Vice President Global Sales, based out of our San Jose Headquarters. This is a full-time regular position reporting to Lee Chen, CEO/President. As a key member of the Executive Management Team, you will have primary responsibility to develop, drive and implement a strong global sales plan to significantly and quickly grow sales and market penetration, along with overseeing World Wide Sales Operations, Business Development, and Systems Engineering.

Your starting salary will be at a rate of $285,000 per year, payable in accordance with the company’s payroll schedule. You will be eligible for an additional on target earnings of $275,000, compensated in accordance with the 2013 A10 Sales Compensation Plan and completion of mutually agreeable objectives set between you and your manager.

You will also be granted options to purchase 750,000 shares of the Company’s Common Stock, pending approval by the Company’s Board of Directors and subject to the terms and conditions of the Company’s 2008 Stock Plan. Generally speaking, those terms will include, among other things, vesting of 1/4 of the shares on your first year anniversary date, and an additional 1/48th of the shares at the end of each additional month thereafter. However, the vesting of your options will be subject to a special acceleration of fifty percent (50%) of the number of shares then unvested upon and in the event of any acquisition or merger of the company, if such transaction involves a change of control.

You will be entitled to receive the Company’s employee benefits made available to other employees at your level to the full extent of your eligibility. The effective date of medical, dental and vision insurance is the 1st of the month following your start date. If your start date is on the 1st of the month, benefits will be effective on that date.

Your employment will be subject to your execution of the Company’s standard form of Employee Agreement (relating to non-disclosure of confidential information and assignment of inventions to the Company), and successful completion of any outstanding reference and background checks.

Your Employment with the Company is for no specific period of time. Your employment with the Company will be “at will,” meaning that either you or the Company may terminate your


Memorandum

July 18, 2013

Page 2

 

employment at any time and for any reason, with or without cause. Any contrary representations which may have been made to you are superseded by this offer. This is the full and complete agreement between you and the Company on this term. Although your job duties, title, compensation and benefits, as well as the Company’s personnel policies and procedures, may change from time to time, the “at will” nature of your employment may only be changed in an express written agreement signed by you and the Company’s Chief Executive Officer.

If this offer meets your approval, please confirm your acceptance by signing a copy of this letter below and confirming your start date. This offer is valid for two (2) business days following your receipt of this letter; and assumes a proposed start date of July 22, 2013.

I look forward to a favorable reply and to welcoming you to A10 Networks, Inc.

 

Sincerely,

/s/ Ruth Welch

Ruth Welch
Senior Director Human Resources

 

Acknowledged and accepted:

/s/ Ray Smets

Ray Smets
Date:  

7/18/13

Start Date:  

7/22/13

Exhibit 10.11        

August 28, 2013

Mr. Jason Matlof

[PRIVATE ADDRESS]

Dear Jason:

I am pleased to confirm the offer for you to join A10 Networks, Inc., a California corporation (the “Company”), as Vice President Global Marketing, based out of our San Jose Headquarters. This is a full-time regular position reporting to Lee Chen, CEO/President. As a key member of the Executive Management Team, you will have primary responsibility to create and lead enterprise-wide, integrated marketing plans to significantly and quickly grow scalable marketing platforms that support a global presence and reinforce the overall corporate positioning.

Your starting salary will be at a rate of $250,000 per year, payable in accordance with the company’s payroll schedule. You will also be eligible to participate in the Company’s Incentive Bonus Plan at an on target rate equal to thirty five percent (35%) base pay compensated in accordance with the 2013 Corporate Incentive Plan and completion of mutually agreeable objectives set between you and your manager.

You will also be granted options to purchase 700,000 shares of the Company’s Common Stock, pending approval by the Company’s Board of Directors and subject to the terms and conditions of the Company’s 2008 Stock Plan. Generally speaking, those terms will include, among other things, vesting of 1/4 of the shares on your first year anniversary date, and an additional 1/48th of the shares at the end of each additional month thereafter. However, the vesting of your options will be subject to a special acceleration of fifty percent (50%) of the then unvested shares if your employment is terminated (other than for cause) or “constructively terminated” upon or at any time following a change of control. For this purpose, constructive termination shall mean (a) a reduction in your base salary and/ or bonus, other than a reduction that is part of a general reduction of salaries and/or bonuses of personnel at your level, (b) a material reduction in your responsibility or authority, or (c) a requirement to relocate, except for relocations within 20 miles of the Company’s current offices.

You will be entitled to receive the Company’s employee benefits made available to other employees at your level to the full extent of your eligibility. The effective date of medical, dental and vision insurance is the 1st of the month following your start date. If your start date is on the 1st of the month, benefits will be effective on that date.

Your employment will be subject to your execution of the Company’s standard form of Employee Agreement (relating to non-disclosure of confidential information and assignment of inventions to the Company), and successful completion of any outstanding reference and background checks.


Memorandum

July 28, 2013

Page 2

 

Your Employment with the Company is for no specific period of time. Your employment with the Company will be “at will,” meaning that either you or the Company may terminate your employment at any time and for any reason, with or without cause. Any contrary representations which may have been made to you are superseded by this offer. This is the full and complete agreement between you and the Company on this term. Although your job duties, title, compensation and benefits, as well as the Company’s personnel policies and procedures, may change from time to time, the “at will” nature of your employment may only be changed in an express written agreement signed by you and the Company’s Chief Executive Officer.

If this offer meets your approval, please confirm your acceptance by signing a copy of this letter below and confirming your start date. This offer is valid for two (2) business days following your receipt of this letter; and assumes a proposed start date of September 16, 2013.

I look forward to a favorable reply and to welcoming you to A10 Networks, Inc.

 

Sincerely,

/s/ Ruth Welch

Ruth Welch
Senior Director Human Resources

 

Acknowledged and accepted:

/s/ Jason Matlof

Jason Matlof
Date:  

8/28/13

Start Date:  

Week of Sept 16 th , 2013

Exhibit 10.24

Execution Copy

 

 

 

CREDIT AGREEMENT

dated as of

September 30, 2013,

among

A10 NETWORKS, INC.,

as Borrower,

THE LENDERS PARTY HERETO

and

ROYAL BANK OF CANADA,

as Administrative Agent

 

 

RBC CAPITAL MARKETS *

and

J.P. MORGAN SECURITIES LLC

and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

as Joint Lead Arrangers and Joint Bookrunners,

J.P. MORGAN SECURITIES LLC,

as Syndication Agent,

and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Documentation Agent

 

 

 

 

*   RBC Capital Markets is a brand name for the capital markets activities of Royal Bank of Canada and its affiliates.


TABLE OF CONTENTS

 

         Page  

ARTICLE I DEFINITIONS

     1   
  Section 1.01   

Defined Terms

     1   
  Section 1.02   

Classification of Loans and Borrowings

     30   
  Section 1.03   

Terms Generally

     30   
  Section 1.04   

Accounting Terms; GAAP

     30   
  Section 1.05   

Currency Translation

     31   
  Section 1.06   

Letter of Credit Amounts

     31   
  Section 1.07   

Pro Forma Calculations

     31   

ARTICLE II THE CREDITS

     31   
  Section 2.01   

Commitments

     31   
  Section 2.02   

Loans and Borrowings

     31   
  Section 2.03   

Requests for Borrowings

     32   
  Section 2.04   

[intentionally omitted]

     33   
  Section 2.05   

Letters of Credit

     33   
  Section 2.06   

Funding of Borrowings

     38   
  Section 2.07   

Interest Elections

     39   
  Section 2.08   

Termination and Reduction of Commitments

     40   
  Section 2.09   

Repayment of Loans; Evidence of Debt

     41   
  Section 2.10   

Prepayment of Loans

     41   
  Section 2.11   

Fees

     42   
  Section 2.12   

Interest

     43   
  Section 2.13   

Alternate Rate of Interest

     44   
  Section 2.14   

Increased Costs

     44   
  Section 2.15   

Break Funding Payments

     45   
  Section 2.16   

Taxes

     46   
  Section 2.17   

Payments Generally; Pro Rata Treatment; Sharing of Setoffs

     50   
  Section 2.18   

Mitigation Obligations; Replacement of Lenders

     51   
  Section 2.19   

Defaulting Lenders

     52   
  Section 2.20   

Illegality

     53   

ARTICLE III REPRESENTATIONS AND WARRANTIES

     54   
  Section 3.01   

Organization; Powers

     54   
  Section 3.02   

Authorization; Enforceability

     54   
  Section 3.03   

Governmental Approvals; No Conflicts

     55   
  Section 3.04   

Financial Condition; No Material Adverse Effect

     55   


TABLE OF CONTENTS

(continued)

 

         Page  
  Section 3.05   

Properties

     55   
  Section 3.06   

Litigation and Environmental Matters

     56   
  Section 3.07   

Compliance with Laws and Agreements

     57   
  Section 3.08   

Investment Company Status

     57   
  Section 3.09   

Taxes

     57   
  Section 3.10   

ERISA; Labor Matters

     57   
  Section 3.11   

Disclosure; No Undisclosed Liabilities

     58   
  Section 3.12   

Subsidiaries

     58   
  Section 3.13   

Intellectual Property; Licenses, Etc

     58   
  Section 3.14   

Solvency

     59   
  Section 3.15   

Federal Reserve Regulations

     59   
  Section 3.16   

PATRIOT ACT; FCPA

     59   
  Section 3.17   

Use of Proceeds

     59   
  Section 3.18   

Security Interests

     59   
  Section 3.19   

Insurance

     60   
  Section 3.20   

No Default

     60   
  Section 3.21   

OFAC

     60   

ARTICLE IV CONDITIONS

     60   
  Section 4.01   

Effective Date

     60   
  Section 4.02   

Each Credit Event

     62   

ARTICLE V AFFIRMATIVE COVENANTS

     63   
  Section 5.01   

Financial Statements and Other Information

     63   
  Section 5.02   

Notices of Material Events

     65   
  Section 5.03   

Information Regarding Collateral

     66   
  Section 5.04   

Existence; Conduct of Business

     66   
  Section 5.05   

Payment of Taxes, etc

     66   
  Section 5.06   

Maintenance of Properties

     66   
  Section 5.07   

Insurance

     66   
  Section 5.08   

Books and Records; Inspection and Audit Rights

     67   
  Section 5.09   

Compliance with Laws

     67   
  Section 5.10   

Use of Proceeds and Letters of Credit

     68   
  Section 5.11   

Additional Subsidiaries; Acquisition of Real Property; Intellectual Property

     68   
  Section 5.12   

Further Assurances

     69   


TABLE OF CONTENTS

(continued)

 

         Page  
  Section 5.13   

Certain Post-Closing Obligations

     69   
  Section 5.14   

Payment of Obligations

     69   
  Section 5.15   

[intentionally omitted]

     69   
  Section 5.16   

Compliance with ERISA

     69   

ARTICLE VI NEGATIVE COVENANTS

     70   
  Section 6.01   

Indebtedness; Certain Equity Securities

     70   
  Section 6.02   

Liens

     73   
  Section 6.03   

Fundamental Changes; Sale-Leasebacks

     75   
  Section 6.04   

Investments, Loans, Advances, Guarantees and Acquisitions

     76   
  Section 6.05   

Asset Sales

     79   
  Section 6.06   

Restricted Payments; Certain Payments of Indebtedness

     81   
  Section 6.07   

Transactions with Affiliates

     83   
  Section 6.08   

Restrictive Agreements

     84   
  Section 6.09   

Amendment of Junior Financing, Equity Contribution and Organizational Documents

     84   
  Section 6.10   

Total Leverage Ratio

     85   
  Section 6.11   

Minimum Liquidity

     85   
  Section 6.12   

Changes in Fiscal Periods

     85   

ARTICLE VII EVENTS OF DEFAULT

     85   
  Section 7.01   

Events of Default

     85   
  Section 7.02   

Borrower’s Right to Cure

     88   

ARTICLE VIII ADMINISTRATIVE AGENT

     89   
  Section 8.01   

Appointment and Authority

     89   
  Section 8.02   

Rights as a Lender

     89   
  Section 8.03   

Exculpatory Provisions

     90   
  Section 8.04   

Reliance by Administrative Agent

     90   
  Section 8.05   

Delegation of Duties

     91   
  Section 8.06   

Resignation of Administrative Agent

     91   
  Section 8.07   

Non-Reliance on Administrative Agent and Other Lenders

     92   
  Section 8.08   

No Other Duties, Etc

     92   
  Section 8.09   

Administrative Agent May File Proofs of Claim

     92   
  Section 8.10   

No Waiver; Cumulative Remedies; Enforcement

     93   
  Section 8.11   

Withholding Taxes

     93   
  Section 8.12   

Lender

     94   


TABLE OF CONTENTS

(continued)

 

         Page  

ARTICLE IX MISCELLANEOUS

     94   
  Section 9.01   

Notices

     94   
  Section 9.02   

Waivers; Amendments

     95   
  Section 9.03   

Expenses; Indemnity; Damage Waiver

     98   
  Section 9.04   

Successors and Assigns

     100   
  Section 9.05   

Survival

     104   
  Section 9.06   

Counterparts; Integration; Effectiveness

     104   
  Section 9.07   

Severability

     105   
  Section 9.08   

Right of Setoff

     105   
  Section 9.09   

Governing Law; Jurisdiction; Consent to Service of Process

     105   
  Section 9.10   

WAIVER OF JURY TRIAL

     106   
  Section 9.11   

Headings

     106   
  Section 9.12   

Confidentiality

     106   
  Section 9.13   

USA Patriot Act

     108   
  Section 9.14   

Judgment Currency

     108   
  Section 9.15   

Release of Liens and Guarantees

     108   
  Section 9.16   

No Advisory or Fiduciary Responsibility

     109   
  Section 9.17   

Interest Rate Limitation

     110   


SCHEDULES :

 

SCHEDULE 2.01     Commitments
SCHEDULE 5.13     Certain Post-Closing Obligations
SCHEDULE 9.01     Notices

EXHIBITS :

 

EXHIBIT A     Form of Assignment and Assumption
EXHIBIT B     Form of Guarantee Agreement
EXHIBIT C     Form of Perfection Certificate
EXHIBIT D     Form of Collateral Agreement
EXHIBIT E-1     Form of Closing Certificate
EXHIBIT E-2     Form of Solvency Certificate
EXHIBIT F     Form of Intercompany Note
EXHIBIT G     Form of United States Tax Compliance Certificate
EXHIBIT H     Form of Borrowing Request
EXHIBIT I     Form of Administrative Questionnaire


CREDIT AGREEMENT dated as of September 30, 2013 (this “ Agreement ”), among A10 NETWORKS, INC., a California corporation (the “ Borrower ”), the LENDERS party hereto, ROYAL BANK OF CANADA as an Issuing Bank, and ROYAL BANK OF CANADA, as Administrative Agent.

The parties hereto agree as follows:

Article I

Definitions

Section 1.01 Defined Terms . As used in this Agreement, the following terms have the meanings specified below:

ABR ” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

Adjusted Eurodollar Rate ” means, with respect to any Eurodollar Borrowing denominated in dollars for any Interest Period, an interest rate per annum equal to (i) the Eurodollar Rate for such Interest Period multiplied by (ii) the Statutory Reserve Rate.

Administrative Agent ” means Royal Bank of Canada, in its capacity as administrative agent and collateral agent hereunder and under the other Loan Documents, and its successors in such capacity as provided in Article VIII.

Administrative Questionnaire ” means an administrative questionnaire in the form of Exhibit I or another form supplied by the Administrative Agent.

Affiliate ” means, with respect to a specified Person, another Person that directly or indirectly Controls or is Controlled by or is under common Control with the Person specified.

Agent Parties ” has the meaning given to such term in Section 9.01(c).

Agreement ” has the meaning given to such term in the preliminary statements hereto.

Agreement Currency ” has the meaning assigned to such term in Section 9.14(b).

Alternate Base Rate ” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted Eurodollar Rate determined on such date (or if such day is not a Business Day, the immediately preceding Business Day) for a deposit in dollars with a maturity of one month plus 1%; provided, however, that during the period starting from the Effective Date to the date that is thirty days following the Effective Date (or such earlier date as shall be specified by the Administrative Agent on which Eurodollar Rate Loans have become available), “ Alternate Base Rate ” shall mean the rate per annum determined by the Administrative Agent to be the offered rate that appears on the page of the Reuters LIBOR01 screen (or any successor thereto as may be reasonably selected by the Administrative Agent) that displays an average British Bankers Association Interest Settlement Rate (or any successor index) for deposits in dollars with a term equivalent to one month, determined as of approximately 11:00 a.m. (London time) on the Effective Date, plus 1.0%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurodollar Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurodollar Rate, respectively.


Applicable Account ” means, with respect to any payment to be made to the Administrative Agent hereunder, the account specified by the Administrative Agent from time to time for the purpose of receiving payments of such type.

Applicable Creditor ” has the meaning assigned to such term in Section 9.14(b).

Applicable Fronting Exposure ” means, with respect to any Person that is an Issuing Bank at any time, the sum of (a) the aggregate amount of all Letters of Credit issued by such Person in its capacity as an Issuing Bank (if applicable) that remains available for drawing at such time and (b) the aggregate amount of all LC Disbursements made by such Person in its capacity as an Issuing Bank (if applicable) that have not yet been reimbursed by or on behalf of the Borrower at such time.

Applicable Percentage ” means, at any time with respect to any Revolving Lender, the percentage of the aggregate Revolving Commitments represented by such Revolving Lender’s Revolving Commitment at such time (or, if the Revolving Commitments have terminated or expired, such Revolving Lender’s share of the total Revolving Exposure at that time); provided that, at any time any Revolving Lender shall be a Defaulting Lender, “Applicable Percentage” shall mean the percentage of the total Revolving Commitments (disregarding any such Defaulting Lender’s Revolving Commitment) represented by such Revolving Lender’s Revolving Commitment. If the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon such Lender’s share of the total Revolving Exposure at that time, giving effect to any assignments pursuant to this Agreement and to any Lender’s status as a Defaulting Lender at the time of determination.

Applicable Rate ” means the following percentages per annum , based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 5.01(c):

 

Pricing Tier    Total Leverage Ratio    Eurodollar Rate
Loans
    Alternate Base Rate
Loans
 

1

   < 1.00:1.00      2.75     1.75

2

   ³  1.00:1.00 but  £  1.50:1.00      3.00     2.00

3

   > 1.50:1.00 but  £  2.25:1.00      3.25     2.25

4

   > 2.25:1.00      3.50     2.50

Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 5.01(c); provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing Tier 4 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the first Business Day immediately following the date on which such Compliance Certificate is delivered in accordance with Section 5.01(c). The Applicable Rate in effect from the Effective Date to the day prior to the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 5.01(c) for the fiscal quarter ending September 30, 2013 shall be determined based upon Pricing Tier 4.

In the event that any financial statement or compliance certificate delivered pursuant to Section 5.01 is inaccurate (but only so long as such inaccuracy is discovered while this Agreement is in effect or within


45 days of the termination of the Revolving Commitments), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Rate for any period (an “ Applicable Period ”) than the Applicable Rate applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a corrected financial statement and a corrected compliance certificate for such Applicable Period, (ii) the Applicable Rate shall be determined based on the corrected compliance certificate for such Applicable Period and (iii) the Borrower shall immediately pay to the Administrative Agent (for the account of the Lenders during the Applicable Period or their successors and assigns) the accrued additional interest owing as a result of such increased Applicable Rate for such Applicable Period. This paragraph shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.12(c) and Article VII hereof.

Approved Bank ” has the meaning assigned to such term in the definition of the term “Permitted Investments.”

Approved Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course of its activities and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any Person whose consent is required by Section 9.04), substantially in the form of Exhibit A or any other form reasonably approved by the Administrative Agent.

Audited Financial Statements ” means the audited consolidated balance sheets of the Borrower as of December 31, 2010 and 2011 and the related consolidated statements of earnings and cash flows of the Borrower for each year in the two year period ended December 31, 2011, including the notes thereto.

Availability Period ” means the period from and including the Effective Date to but excluding the earlier of the fifth Business Day prior to the Maturity Date and the date of termination of the Commitments.

Bankruptcy Code ” means Title 11 of the United State Code, as amended, or any similar federal or state law for the relief of debtors.

Board of Governors ” means the Board of Governors of the Federal Reserve System of the United States of America.

Borrower ” has the meaning assigned to such term in the preamble.

Borrower Materials ” has the meaning assigned to such term in Section 5.01.

Borrowing ” means Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

Borrowing Minimum ” means (a) in the case of a Eurodollar Borrowing, $1,000,000 and (b) in the case of an ABR Borrowing, $500,000.

Borrowing Multiple ” means (a) in the case of a Eurodollar Borrowing, $500,000 and (b) in the case of an ABR Borrowing, $100,000.


Borrowing Request ” means a request by the Borrower, substantially in the form of Exhibit H, for a Borrowing in accordance with Section 2.03 or the issuance of a Letter of Credit under Section 2.05.

Bridge Loan Note ” means that certain Senior Unsecured Convertible Promissory Note, dated as of July 22, 2013, in an aggregate principal amount of $70,000,000 issued by the Borrower to Brocade as part of the Specified Settlement maturing six (6) months following the issuance thereof and otherwise containing the terms described in Annex A to the May 20, 2013 Hearing Transcript [DKT 1017] Case No. 5:10-cv-03428 PSG.

Brocade ” means Brocade Communications Systems, Inc.

Business Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

Capital Lease Obligations ” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP. For purposes of Section 6.02, a Capital Lease Obligation shall be deemed to be secured by a Lien on the property being leased and such property shall be deemed to be owned by the lessee.

Capitalized Leases ” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with GAAP.

Cash Management Obligations ” means obligations of the Borrower or any of its Subsidiaries in respect of any overdraft and other liabilities arising from treasury, depository, credit card, purchasing card and cash management services or any automated clearing house transfers of funds.

Casualty Event ” means any event that gives rise to the receipt by the Borrower or any its Subsidiaries of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.

Change in Control ” means the earliest to occur of: (a) prior to a Qualified Public Offering, (i) the failure by the Permitted Investors to own, directly or indirectly, beneficially and of record, Equity Interests in the Borrower representing at least a majority of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Borrower unless the Permitted Investors otherwise have the right (pursuant to contract, proxy or otherwise) to designate or appoint a majority of the board of directors of the Borrower or (ii) any Person (other than a Permitted Investor) shall own, directly or indirectly, beneficially or of record, Equity Interests representing a percentage of the aggregate ordinary voting power (represented by the issued and outstanding Equity Interests) of the Borrower equal to or greater than the percentage owned by the Permitted Investors, (b) after a Qualified Public Offering, any “person” or “group” (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date hereof), other than the Permitted Investors, shall own, directly or indirectly, beneficially or of record, Equity Interests representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the IPO Entity and


the Permitted Investors shall not own or control a greater amount, (c) at any time, the occupation of a majority of the seats (other than vacant seats) on the Board of Directors of the Borrower by Persons who were neither (i) nominated, designated or approved by the Board of Directors of the Borrower or the Permitted Investors nor (ii) appointed by directors so nominated, designated or approved or (d) the occurrence of a “Change of Control” (or similar event, however denominated), under and as defined in any indenture or agreement in respect of Material Indebtedness, provided that, at any time when at least a majority of the aggregate ordinary voting power for the election of directors of the Borrower represented by the issued and outstanding Equity Interests of the Borrower is directly or indirectly owned by a Parent Entity, all references in clauses (b) through (d) above to “the Borrower” (other than in this proviso) shall be deemed to refer to the Parent Entity that directly or indirectly owns such Equity Interests of the Borrower.

Change in Law ” means: (a) the adoption of any rule, regulation, treaty or other Requirement of Law after the date of this Agreement, (b) any change in any rule, regulation, treaty or other Requirement of Law or in the administration, interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Class ” when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, (b) any Commitment, refers to whether such Commitment is a Revolving Commitment, and (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments.

Code ” means the Internal Revenue Code of 1986, as amended from time to time.

Collateral ” means any and all assets of any Loan Party, now owned or hereafter acquired, whether real or personal, tangible or intangible, on which Liens are, or are purported to be, granted pursuant to the Security Documents as security for the Secured Obligations.

Collateral Agreement ” means the Collateral Agreement among the Borrower, each other Loan Party and the Administrative Agent, substantially in the form of Exhibit D.

Collateral and Guarantee Requirement ” means, at any time, the requirement that:

(a) the Administrative Agent shall have received from (i) the Borrower and each of its Subsidiaries (other than any Excluded Subsidiary), either (x) a counterpart of the Guarantee Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes a Loan Party after the Effective Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, (ii) the Borrower and each Subsidiary Loan Party either (x) a counterpart of the Collateral Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes a Loan Party after the Effective Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, in each case under this clause (a) together with, in the case of any such Loan Documents executed and


delivered after the Effective Date, at the reasonable request of the Administrative Agent for any Subsidiary, opinions of the type referred to in Section 4.01(b) and (iii) the Borrower, a completed Perfection Certificate, duly executed and delivered by the Borrower;

(b) all outstanding Equity Interests of the Borrower and each of its Subsidiaries (other than any Equity Interests constituting Excluded Assets or Equity Interests in Immaterial Subsidiaries) owned by or on behalf of any Loan Party, shall have been pledged pursuant to the Collateral Agreement, and the Administrative Agent shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;

(c) if any Indebtedness for borrowed money of the Borrower or any of its Subsidiaries in a principal amount of $250,000 or more (subject to the aggregate threshold set forth in Section 3.04(a) of the Collateral Agreement) is owing by such obligor to any Loan Party, such Indebtedness shall be evidenced by a promissory note that shall have been pledged pursuant to the Collateral Agreement, and the Administrative Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;

(d) all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, required by the Security Documents, Requirements of Law or reasonably requested by the Administrative Agent to be filed, executed, delivered, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, the Security Documents and the other provisions of the term “Collateral and Guarantee Requirement,” shall have been so filed, registered, recorded, executed or delivered to the Administrative Agent for filing, registration or recording, including, without limitation, evidence of the preparation for recording or filing, as applicable, of all recordings and filings of each such Security Document, including, without limitation, with the United States Patent and Trademark Office and the United States Copyright Office, and delivery and recordation, if necessary, of such other security and other documents, including UCC-3 termination statements with respect to UCC security filings, financing change statements or other personal property that do not constitute Liens permitted under Section 6.02, as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect, or publish notice of, the Liens created, or purported or intended to be created, by such Security Documents; and

(e) UCC, personal property security, judgment and execution, tax lien, and pending lawsuit search reports listing all effective financing statements, registrations or comparable documents which name any applicable Loan Party as debtor and which are filed in those jurisdictions in which any Loan Party is organized, any of such Collateral is located and the jurisdictions in which any applicable Loan Party’s chief executive office or principal place of business is located in the United States, together with copies of such existing financing statements, registrations or other documents and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Liens permitted under Section 6.02 or have been released or discharged (including, without limitation, copies of duly executed payoff letters evidencing the extinguishment of any related indebtedness and authorizing the filing of the related UCC-3 termination statements);


(f) evidence that all other actions in the opinion of the Administrative Agent reasonably necessary to perfect the security interests created by the Security Documents have been taken;

(g) the Administrative Agent shall have received (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance issued by a nationally recognized title insurance company insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.02, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request, (iii) if any Mortgaged Property is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Board of Governors, and (iv) such legal opinions as the Administrative Agent may reasonably request with respect to any such Mortgage or Mortgaged Property.

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Subsidiary of the Borrower, if, and for so long as the Administrative Agent and the Borrower reasonably agree in writing that, the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees, shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (b) Liens required to be granted from time to time pursuant to the term “Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Security Documents and Liens permitted hereunder, (c) in no event shall any Loan Party be required to complete any filings or other action with respect to the perfection of security interests in any jurisdiction outside of the United States, (d) no action to perfect a security interest in motor vehicles and other assets subject to certificates of title shall be required other than the filing of a financing statement under the Uniform Commercial Code (e) in no event shall the Collateral include any Excluded Assets. The Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Effective Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Effective Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.

Commitment ” means with respect to any Lender, its Revolving Commitment.

Competitor ” means any Person identified on Schedule 9.04 to the Disclosure Letter or by the Borrower to the Administrative Agent in writing as (i) a Person engaged in the same line of business as the Borrower or (ii) an Affiliate of any Person described in clause (i).

Compliance Certificate ” means a Compliance Certificate required to be delivered pursuant to Section 5.01(c).

Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.


Consolidated Amortization Expense ” means, for any period, the amortization expenses of the Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, including the amortization of long-term contingent consideration.

Consolidated Depreciation Expense ” means, for any period, the depreciation expenses of the Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period, adjusted by:

(a) adding thereto, in each case only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income and without duplication:

(i) Consolidated Interest Expense for such period;

(ii) Consolidated Tax Expense for such period;

(iii) Consolidated Amortization Expense for such period;

(iv) Consolidated Depreciation Expense for such period;

(v) fees, expenses, financing costs, restructuring charges (certified by a Financial Officer (including a reasonably detailed calculation thereof) as identifiable and factually supportable in the good faith judgment of the Borrower) and severance costs incurred or paid in connection with any business restructuring to the extent included in a footnote or as a separate line item on the financial statements of Borrower and, in either case, required to be expensed under GAAP; provided that the aggregate amount added to Consolidated EBITDA pursuant to this clause (v) shall not exceed 10.0% of Consolidated EBITDA for any period of four fiscal quarters (prior to giving effect to any such add-back);

(vi) the aggregate amount of all other non-cash charges, expenses or losses reducing Consolidated Net Income (excluding any non-cash charge, expense or loss relating to write-offs, write-downs or reserves with respect to accounts or inventory) for such period;

(vii) any amortization or write-down of intangible assets;

(viii) non-cash expenses related to equity-based compensation;

(ix) settlement payments (whether in cash, Qualified Equity Interests or by the issuance of the Bridge Loan Note) of up to $75,000,000 made in satisfaction of the Specified Litigation and in accordance with the terms of the Specified Settlement;

(x) extraordinary losses and unusual or non-recurring losses; provided that the aggregate amount added to Consolidated EBITDA pursuant to this clause (x) shall not exceed 10.0 % of Consolidated EBITDA for any period of four fiscal quarters (prior to giving effect to any such add-back);

(xi) losses from the sale of assets (other than sales of inventory in the ordinary course of business) permitted by Section 6.05;


(xii) purchase accounting adjustments resulting from Permitted Acquisitions;

(xiii) fees, expenses and other transaction costs with respect to actual or proposed (i) Permitted Acquisitions and other Investments permitted by Section 6.04, (ii) Dispositions permitted by Section 6.05, (iii) Indebtedness incurrence permitted by Section 6.01 and (iv) issuance of Equity Interests by the Borrower;

(xiv) charges or losses that could reasonably be expected to be reimbursed or covered by insurance policies or contractual indemnities and not disputed by the insurer or contractual indemnitor thereunder;

(xv) litigation expenses in connection with the Specified Litigation in an amount not to exceed (i) $4,571,000 for the fiscal quarter ending March 31, 2012, (ii) $6,498,000 for the fiscal quarter ending June 30, 2012, (iii) $6,008,000 for the fiscal quarter ending September 30, 2012, (iv) $2,410,000 for the fiscal quarter ending December 31, 2012, (v) $3,400,000 for the fiscal quarter ending March 31, 2013, (vi) $4,800,000 for the fiscal quarter ending June 30, 2013, (vii) $700,000 for the fiscal quarter ending September 30, 2013 and (viii) $400,000 for the fiscal quarter ending December 31, 2013; and

(xvi) any foreign currency translation or transaction loss;

(b) and subtracting therefrom, in each case only to the extent (and in the same proportion) included in determining such Consolidated Net Income and without duplication:

(i) the aggregate amount of all non-cash income or gains increasing Consolidated Net Income (other than the accrual of revenue or recording of receivables in the ordinary course of business or any non-cash income or gains to be received in cash in any future period) for such period;

(ii) income created by or relating to contingent consideration in connection with a business or asset sold, transferred or otherwise disposed of to the extent recognized as revenue under GAAP;

(iii) extraordinary gains and unusual or non-recurring gains; and

(iv) the amount of all cash payments or cash charges made (or incurred) for such period on account of any non-cash charges, losses or expenses added back to Consolidated EBITDA pursuant to the preceding subclause (a)(vi);

in each case, as determined on a consolidated basis for the Borrower and its Subsidiaries in accordance with GAAP.

For purposes of determining the Total Leverage Ratio as of or for the periods ending September 30, 2013, December 31, 2013 and March 31, 2014 Consolidated EBITDA will be deemed to be equal to the following: (i) for the fiscal quarter ended September 30, 2013, the Consolidated EBITDA for the fiscal quarter ending September 30, 2013 multiplied by 4, (ii) for the fiscal quarter ended December 31, 2013, the Consolidated EBITDA for the fiscal quarter ended September 30, 2013 plus Consolidated EBITDA for the fiscal quarter ended December 31, 2013, multiplied by 2 and (iii) for the fiscal quarter ended March 31, 2014, the Consolidated EBITDA for the fiscal quarter ended September 30, 2013 plus the Consolidated EBITDA for the


fiscal quarter ended December 31, 2013 plus the Consolidated EBITDA for the fiscal quarter ended March 31, 2014 multiplied by 4/3.

Consolidated Interest Expense ” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of all interest, premium payments, debt discount, fees, charges and related expenses in connection with Indebtedness (including capitalized interest) or in connection with the net losses under Swap Agreements with respect to interest rate risk, in each case to the extent treated as interest in accordance with GAAP, including (a) the portion of rent expense with respect to such period under Capitalized Leases that is treated as interest in accordance with GAAP and (b) the implied interest component of Synthetic Leases with respect to such period.

Consolidated Net Income ” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, net income (excluding (a) income or loss from discontinued operations that have been sold and (b) extraordinary items) for such period.

Consolidated Tax Expense ” means, for any period, the tax expense of the Borrower and its Subsidiaries, for such period, determined on a consolidated basis in accordance with GAAP.

Consolidated Total Assets ” means, the consolidated total assets of the Borrower and its Subsidiaries as set forth on the consolidated balance sheet of the Borrower as of the most recent period for which financial statements were required to have been delivered pursuant to Sections 5.01(a) and (b).

Consolidated Total Debt ” means, as of any date of determination, the aggregate principal amount of Indebtedness of the Borrower and its Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP), consisting only of Indebtedness for borrowed money, unreimbursed obligations under drawn letters of credit, obligations in respect of Capitalized Leases and debt obligations evidenced by bonds, debentures, notes or similar instruments (other than (i) bonds, debentures, notes or instruments representing obligations of the type described in Section 6.01(xvi), and (ii) for the avoidance of doubt, Indebtedness described in Section 6.01(xi), (xii) and (xx)).

Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies, or the dismissal or appointment of the management, of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Default ” means any event or condition that constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

Defaulting Lender ” means, subject to Section 2.19(b), any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Revolving Loans or participations in respect of Letters of Credit, within three Business Days of the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in writing) has not been satisfied, (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement or provided


any written notification to any Person to that effect with respect to its funding obligations hereunder or generally under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s reasonable determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after request by the Administrative Agent (whether acting on its own behalf or at the reasonable request of the Borrower), to confirm in a manner satisfactory to the Administrative Agent and the Borrower that it will comply with its funding obligations (provided, that if such Lender is deemed a Defaulting Lender for failure to comply with the provisions of this clause and thereafter such Lender so confirms, such Lender shall no longer be a Defaulting Lender pursuant to the terms of this clause (c)), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment, unless, in the case of this clause (d), the Borrower and the Administrative Agent are reasonably satisfied that such Lender will remain capable of performing its obligations hereunder; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.

Defaulting Lender Fronting Exposure ” means, at any time there is a Defaulting Lender, with respect to the Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding Letter of Credit obligations other than Letter of Credit obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof.

Disclosure Letter ” means the Disclosure Letter, dated as of the date hereof, delivered by Borrower to the Administrative Agent in connection with this Agreement, as may be updated from time to time in accordance with the terms of this Agreement and the other Loan Documents.

Disposition ” has the meaning assigned to such term in Section 6.05.

Disqualified Equity Interest ” means, with respect to any Person, any Equity Interest in such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition:

(a) matures or is mandatorily redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;

(b) is convertible or exchangeable, either mandatorily or at the option of the holder thereof, for Indebtedness or Equity Interests (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests); or

(c) is redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests) or is required to be repurchased by such Person or any of its Affiliates, in whole or in part, in each case, at the option of the holder thereof;


in each case, on or prior to the date 91 days after the Maturity Date; provided , however , that (i) an Equity Interest in any Person that would not constitute a Disqualified Equity Interest but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale” or a “change of control” shall not constitute a Disqualified Equity Interest if any such requirement becomes operative only after repayment in full of all the Loans and all other Loan Document Obligations that are accrued and payable, the cancellation or expiration of all Letters of Credit and the termination of the Commitments and (ii) if an Equity Interest in any Person is issued pursuant to any plan for the benefit of employees of the Borrower (or any Parent Entity thereof) or any of its Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute a Disqualified Equity Interest solely because it may be required to be repurchased by the Borrower (or any Parent Entity thereof) or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations of such Person.

dollars ” or “ $ ” refers to lawful money of the United States of America.

Effective Date ” means the date of this Agreement.

Eligible Assignee ” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (other than the Borrower, any Affiliate of the Borrower or any of their subsidiaries), other than, in each case, a natural person.

Environmental Laws ” means all applicable treaties, rules, regulations, codes, ordinances, judgments, orders, decrees and other applicable Requirements of Law, and all applicable injunctions or binding agreements issued, promulgated or entered into by or with any Governmental Authority, in each instance relating to the protection of the environment, to preservation or reclamation of natural resources, to Release or threatened Release of any Hazardous Material or to the extent relating to exposure to Hazardous Materials, to health or safety matters.

Environmental Liability ” means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of environmental remediation or restoration, administrative oversight costs, consultants’ fees, fines, penalties and indemnities), of the Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law or permit, license or approval issued thereunder, (b) Environmental Laws and the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Equity Contribution shall mean the issuance and sale to Summit Partners, L.P. (or one or more of their Affiliates) by Borrower of equity securities (other than Disqualified Equity Interests) in an aggregate amount of not less than $80,000,000 of proceeds in cash to the Borrower on or before the Effective Date.

Equity Cure Period ” shall have the meaning assigned to such term in Section 7.02(a).

Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.


ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with a Loan Party, is treated as a single employer under Section 414(b) or 414(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is also treated as a single employer under Section 414(m) and (o) of the Code.

ERISA Event ” means (a) a “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which notice is waived); (b) the failure by any Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived (unless such failure is corrected by the final due date for the plan year for which such failure occurred); (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) a determination that a Plan is, or is expected to be, in“at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) the incurrence by a Loan Party or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (f) the receipt by a Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g) the incurrence by a Loan Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (h) the receipt by a Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Loan Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA or, in “endangered status” or “critical status”, within the meaning of Section 305(b) of ERISA.

Eurodollar ” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted Eurodollar Rate.

Eurodollar Rate ” means,

(a) for any Interest Period with respect to a Eurodollar Borrowing, the rate of interest per annum , expressed on the basis of a year of 360 days, determined by the Administrative Agent, which is equal to the offered rate that appears on the page of the Reuters LIBOR01 screen (or any successor thereto as may be reasonably selected by the Administrative Agent) that displays an average British Bankers Association Interest Settlement Rate (or any successor index) for deposits in dollars with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, or

(b) if the rates referenced in the preceding subsection (a) are not available, the rate per annum determined by the Administrative Agent as the rate of interest, expressed on a basis of 360 days at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by the Administrative Agent and with a term and amount comparable to such Interest Period and principal amount of such Eurodollar Rate Loan as would be offered by the Administrative Agent’s London Branch to major banks in the offshore Dollar market at their request at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period.

Event of Default ” has the meaning assigned to such term in Section 7.01.


Exchange Act ” means the United States Securities Exchange Act of 1934, as amended from time to time.

Excluded Assets ” has the meaning specified in the Collateral Agreement.

Excluded Subsidiary ” means (a) any Foreign Subsidiary, (b) any Immaterial Subsidiary, (c) any Subsidiary that is prohibited by applicable Law or material contractual obligation existing on the Effective Date (or in the case of any future acquisition, of the acquired company and as in effect as of the closing date of such acquisition and not entered into in contemplation thereof) from providing a Guaranty or if such Guaranty would require governmental (including regulatory) consent, approval, license or authorization to grant such Guaranty or third party consent to grant such Guaranty for so long as such prohibition remains in effect, and (d) any other Subsidiary excused from becoming a Loan Party pursuant to the last paragraph of the definition of the term “Collateral and Guarantee Requirement”; provided , that no Subsidiary that provides a Guarantee in respect of any Junior Financing Indebtedness shall be an Excluded Subsidiary.

Excluded Taxes ” means, with respect to the Administrative Agent, any Lender or any Issuing Bank, (a) any Taxes measured by or imposed on such Person’s net income (however denominated), franchise Taxes, and branch profits and similar Taxes (i) by the jurisdiction under the laws of which such Person is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, or (ii) that are otherwise Other Connection Taxes; (b) any withholding Tax that is attributable to a Person’s failure to comply with Section 2.16(e); (c) any U.S. federal withholding Taxes imposed under FATCA; and (d) except in the case of an assignee pursuant to a request by the Borrower under Section 2.18 hereto, any Taxes that are (or would be) imposed on amounts payable to or for the account of such Person due to a Requirement of Law in effect at the time the Administrative Agent, any Lender or any Issuing Bank becomes a party hereto or designates a new lending office, except to the extent that such Person (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts with respect to such withholding Tax under Section 2.16(a).

Existing Debt ” means Indebtedness outstanding as of the Effective Date under (i) that certain Loan and Security Agreement dated as of July 22, 2010 by and between the Borrower and Silicon Valley Bank and (ii) the Bridge Loan Note.

fair market value ” means with respect to any asset or liability, the fair market value of such asset or liability as determined in good faith by a Responsible Officer of the Borrower.

FATCA ” means Sections 1471 through 1474 of the Code, as in effect on the date hereof (or any amended version that is substantially comparable and not materially more onerous to comply with), any applicable Treasury regulation promulgated thereunder or published administrative guidance implementing such Sections whether such Treasury regulation or published administrative guidance is in existence on the date hereof or promulgated or published thereafter, any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any intergovernmental agreement in effect in respect of the foregoing.

Federal Funds Effective Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank on the Business Day next succeeding such day; provided , that (a), if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate


charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

Fee Letter ” means the Fee Letter, dated as of April 30, 2013, among the Lead Arrangers and the Borrower.

Financial Officer ” means the chief financial officer, deputy chief financial officer, principal accounting officer, treasurer, controller or similar officer of the Borrower or any applicable Subsidiary.

Financial Performance Covenants ” means the covenants set forth in Sections 6.10 and 6.11.

Financing Transactions ” means the execution, delivery and performance by each Loan Party of the Loan Documents to which it is to be a party, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.

Fiscal Year ” means a fiscal year of the Borrower and its consolidated Subsidiaries ending on December 31 in any calendar year.

Foreign Subsidiary ” means (i) any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia and that is treated as a corporation for U.S. federal income tax purposes and that is described under Section 957(a) of the Code, (ii) any Subsidiary that is a disregarded entity or partnership for U.S. federal income Tax purposes, substantially all of the assets of which consist of Equity Interests in one or more Subsidiaries described in clause (i) of this definition and (iii) any Subsidiary of a Subsidiary described in clause (i).

GAAP ” means generally accepted accounting principles in the United States of America, as in effect from time to time but subject to Section 1.04.

Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any such group or body charged with setting financial accounting or regulatory capital rules or standards (including the Bank for International Settlements and the Basel Committee on Banking Supervision) and any supra-national bodies such as the European Union or the European Central Bank).

Guarantee ” of or by any Person (the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof for the purpose of assuring the owner of such Indebtedness of the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Effective Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with


respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined in good faith by a Financial Officer. The term “Guarantee” as a verb has a corresponding meaning.

Guarantee Agreement ” means the Master Guarantee Agreement among each Guarantor, the Borrower and the Administrative Agent, substantially in the form of Exhibit B.

Guarantor ” means each Subsidiary (other than an Excluded Subsidiary).

Hazardous Materials ” means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum by-products or distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated as hazardous or toxic, or any other term of similar import, pursuant to any Environmental Law.

Immaterial Subsidiary ” means any Subsidiary of the Borrower that, as of the last day of the fiscal quarter of the Borrower most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) and (b), had (i) total assets in an amount less than 2.5% of the amount of Consolidated Total Assets of the Borrower and its Subsidiaries (it being understood that for purposes of this calculation, Consolidated Total Assets shall not include intercompany receivables) or (ii) Consolidated EBITDA for the Test Period ending on such date in an amount less than 2.5% of the amount of total Consolidated EBITDA of the Borrower and its Subsidiaries; provided that no Subsidiary shall be considered an Immaterial Subsidiary until the Borrower shall have designated such Subsidiary’s status as such in writing (together with calculations demonstrating qualification as such) to the Administrative Agent; and provided further that no Subsidiary shall be designated as an Immaterial Subsidiary if the total assets or Consolidated EBITDA of such Subsidiary, taken together with the total assets and Consolidated EBITDA of all other Subsidiaries designated as Immaterial Subsidiaries, exceeds 5.0% of Consolidated Total Assets or Consolidated EBITDA, as the case may be, of the Borrower and its Subsidiaries. As of the Effective Date, the Borrower has the Immaterial Subsidiaries disclosed in Schedule 3.12 to the Disclosure Letter.

Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) trade accounts payable in the ordinary course of business, (ii) any earn-out obligation until such obligation is not paid after becoming due and payable or such obligation is reflected on the balance sheet in accordance with GAAP and (iii) accruals for payroll and other liabilities, including, deferred compensation arrangements, in each case, accrued in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all net obligations of such Person under Swap Agreements, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances and (k) all obligations of such Person with respect to the redemption, repurchase, repayment, return of capital or other similar obligations in respect of Disqualified Equity Interests; provided that the term “Indebtedness” shall not include deferred or prepaid revenue. The


Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. The amount of Indebtedness of any Person shall for purposes of clause (e) above (unless such Indebtedness has been assumed by such Person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the fair market value of the property encumbered thereby as determined by such Person in good faith.

Indemnified Taxes ” means Taxes other than Excluded Taxes.

Indemnitee ” has the meaning assigned to such term in Section 9.03(b).

Information ” has the meaning assigned to such term in Section 9.12(a).

Intellectual Property ” has the meaning assigned to such term in the Collateral Agreement.

Interest Election Request ” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07.

Interest Payment Date ” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.

Interest Period ” means, with respect to any Eurodollar Borrowing, the period commencing on the date such Borrowing is disbursed or converted to or continued as a Eurodollar Borrowing, as applicable, and ending on the date that is one, two, three or six months thereafter as selected by the Borrower in its Borrowing Request (or, if agreed to by each Lender participating therein and elected by the Borrower, twelve months); provided that

(a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day,

(b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month at the end of such Interest Period and

(c) no Interest Period shall extend beyond the Maturity Date. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in,


another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. The amount, as of any date of determination, of (a) any Investment in the form of a loan or an advance shall be the principal amount thereof outstanding on such date, but without any adjustment for write-downs or write-offs with respect to such loan or advance after the date thereof, (b) any Investment in the form of a Guarantee shall be equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof, as determined in good faith by a Financial Officer, (c) any Investment in the form of a transfer of Equity Interests or other non-cash property by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the fair market value of such Equity Interests or other property as of the time of the transfer, minus any payments actually received by such investor representing a return of capital of, or dividends or other distributions in respect of, such Investment (to the extent such payments do not exceed, in the aggregate, the original amount of such Investment), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment, and (d) any Investment (other than any Investment referred to in clause (a), (b) or (c) above) by the specified Person in the form of a purchase or other acquisition for value of any Equity Interests, evidences of Indebtedness or other securities of any other Person shall be the original cost of such Investment (including any Indebtedness assumed in connection therewith), plus (i) the cost of all additions thereto and minus (ii) the amount of any portion of such Investment that has been repaid to the investor in cash as a repayment of principal or a return of capital and of any cash payments actually received by such investor representing dividends or other distributions in respect of such Investment (to the extent the amounts referred to in clause (ii) do not, in the aggregate, exceed the original cost of such Investment plus the costs of additions thereto), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment. For purposes of Section 6.04, if an Investment involves the acquisition of more than one Person, the amount of such Investment shall be allocated among the acquired Persons in accordance with GAAP; provided that pending the final determination of the amounts to be so allocated in accordance with GAAP, such allocation shall be as reasonably determined by a Financial Officer.

IPO Entity ” means, at any time after a Qualified Public Offering, either (a) the Borrower or (b) a Parent Entity or a direct or indirect subsidiary of the Parent Entity (other than the Borrower), as the case may be, the Equity Interests of which were issued or otherwise sold pursuant to the Qualified Public Offering; provided that, for purposes of this clause (b), immediately following the IPO, the Borrower is a Wholly Owned Subsidiary of such IPO Entity and such IPO Entity owns, directly or through its subsidiaries, substantially all the businesses and assets owned or conducted, directly or indirectly, by the Borrower immediately prior to the IPO and provided , further , that any such IPO Entity shall become a Loan Party under the Loan Documents and such IPO Entity and the Loan Parties shall agree to any amendments, modifications or supplements to the Loan Documents reasonably requested by the Administrative Agent to effect the foregoing.

IRS ” means the United States Internal Revenue Service.

ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

Issuing Bank ” means (a) Royal Bank of Canada and (b) each Lender that shall have become an Issuing Bank hereunder as provided in Section 2.05(k) (other than any Person that shall have ceased to be an Issuing Bank as provided in Section 2.05(l)), each in its capacity as an issuer of Letters of


Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

Judgment Currency ” has the meaning assigned to such term in Section 9.14(b).

Junior Financing ” means any unsecured, junior secured or subordinated Material Indebtedness incurred under Sections 6.01(vii) or 6.01(viii), and any Permitted Refinancing thereof.

LC Disbursement ” means a payment made by an Issuing Bank pursuant to a Letter of Credit.

LC Exposure ” means, at any time, the sum of (a) the aggregate amount of all Letters of Credit that remains available for drawing at such time and (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP (or any successor provision thereto), such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time.

Lead Arranger ” means RBC Capital Markets, J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, in their respective capacities as Joint Lead Arrangers and Joint Bookrunners.

Lenders ” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, in each case, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

Letter of Credit ” means any standby letter of credit issued pursuant to this Agreement other than any such letter of credit that shall have ceased to be a “Letter of Credit” outstanding hereunder pursuant to Section 9.05.

Letter of Credit Sublimit ” means an amount equal to $10,000,000. The Letter of Credit Sublimit is part of and not in addition to the aggregate Revolving Commitments.

Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

Liquidity ” means the sum of (i) the difference between (x) the Revolving Commitments of the Lenders minus (y) Revolving Exposure of the Lenders and (ii) Unrestricted Cash.

Loan Document Obligations ” has the meaning assigned to such term in the Collateral Agreement.

Loan Documents ” means (i) this Agreement, (ii) the Guarantee Agreement, (iii) the Collateral Agreement, (iv) the other Security Documents, (v) the Fee Letter, (vi) except for purposes of Section 9.02, any promissory notes delivered pursuant to Section 2.09(e), (vii) the Letters of Credit, (viii)


the Disclosure Letter and (ix) any other document or instrument executed by or on behalf of the Loan Parties (including any officer or employee thereof) and delivered to any of the Secured Parties in connection with the foregoing.

Loan Parties ” means the Borrower and the Subsidiary Loan Parties.

Loans ” means the Revolving Loans made by the Lenders to the Borrower pursuant to this Agreement.

London Banking Day ” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

Material Adverse Effect ” means any event, circumstance or condition that has had, or could reasonably be expected to have, a materially adverse effect on (a) the business, property, assets, financial condition, or results of operations of the Borrower and its Subsidiaries, taken as a whole, (b) the ability of the Borrower and the other Loan Parties, taken as a whole, to perform their payment obligations under the Loan Documents, (c) the rights and remedies of the Administrative Agent and the Lenders under the Loan Documents or (d) a material adverse effect on the Collateral or the Liens in favor of the Collateral Agent (for its benefit and for the benefit of the other Secured Parties) on the Collateral or the priority of such Liens.

Material Indebtedness ” means Indebtedness (other than the Loan Document Obligations), or net obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $5,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

Material Intellectual Property ” means all registrations or pending applications for registration with the US Patent and Trademark Office for any trademarks or service marks that are material to the operation of the business of the Borrower and its Subsidiaries, taken as a whole.

Maturity Date ” means September 30, 2016.

Maximum Rate ” has the meaning assigned to such term in Section 9.17.

Moody’s ” means Moody’s Investors Service, Inc. and any successor to its rating agency business.

Mortgage ” means a mortgage, deed of trust, assignment of leases and rents or other security document granting to the Administrative Agent for the benefit of the Lenders a Lien on any Mortgaged Property to secure the Secured Obligations. Each Mortgage shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower.

Mortgaged Property ” means the real property and the improvements thereto owned by a Loan Party with respect to which a Mortgage is granted to the Administrative Agent for the benefit of the Lenders pursuant to Section 5.11 or Section 5.12.

Multiemployer Plan ” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, subject to the provisions of Title IV of ERISA to which a Loan Party or any ERISA Affiliate is an “employer” as defined in Section 3(5) of ERISA.


Net Proceeds ” means (a) with respect to any Disposition or Casualty Event, the cash proceeds (including cash proceeds subsequently received (as and when received) in respect of noncash consideration initially received), net of, in the case of Dispositions, (i) selling expenses (including reasonable broker’s fees or commissions, legal fees, taxes payable by the Borrower or its Subsidiaries to any unaffiliated third-party as a direct consequence such Disposition), (ii) amounts provided as a reserve, in accordance with GAAP, against any liabilities under any indemnification obligations or purchase price adjustment associated with such Disposition; provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Proceeds, and (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money (other than the Loan Document Obligations) which is secured by the asset sold in such Disposition and which is required to be repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such asset); and (b) with respect to any equity issuance, the cash proceeds thereof, net of all taxes and customary fees, commissions, costs and other expenses (including repurchase obligations to the extent reserved in accordance with GAAP) incurred in connection therewith.

Non-Consenting Lender ” has the meaning assigned to such term in Section 9.02(c).

Non-Loan Party Investment Amount ” means, at any time, $2,500,000.

Notice of Intent to Cure ” shall mean a written notice from one or more of the existing holders of Equity Interests of the Borrower of their intent to cure the Borrower’s failure to comply with any of Sections 6.10 and 6.11 delivered to the Administrative Agent in accordance with Section 7.02.

Organizational Documents ” means, with respect to any Person, the charter, articles or certificate of organization or incorporation and bylaws or limited liability company agreement or other organizational or governing documents of such Person.

Other Connection Taxes ” means, with respect to Administrative Agent, any Lender or any Issuing Bank, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

Other Taxes ” means any and all present or future stamp, court or documentary, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document except any such Taxes with respect to or result from (i) an Assignment and Assumption, except in each case to the extent such change is requested in writing by the Borrower pursuant to Section 2.18.

Parent Entity ” shall mean any Person that is a direct or indirect parent company (which may be organized as, among other things, a partnership) of the Borrower, where such Parent Entity owns 100% of the Equity Interests of the Borrower.

Participant ” has the meaning assigned to such term in Section 9.04(c).

Participant Register ” has the meaning assigned to such term in Section 9.04(c)(ii).

PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.


Perfection Certificate ” means a certificate substantially in the form of Exhibit C.

Permitted Acquisition ” means the purchase or other acquisition, by merger or otherwise, by the Borrower or any of its Subsidiaries of all of the Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person; provided that (a) in the case of any purchase or other acquisition of Equity Interests in a Person, such Person, upon the consummation of such acquisition, will become a Subsidiary Guarantor to the extent required by Section 5.11 (including as a result of a merger, amalgamation or consolidation between any Subsidiary and such Person), (b) all transactions related thereto are consummated in accordance with all Requirements of Law in all material respects and, in the case of any acquisition of a Person, the board of directors or equivalent governing body of such acquired Person or its selling equity-holders shall have approved such purchase or other acquisition, (c) the business of such Person, or such assets, as the case may be, constitute a business permitted by Section 6.03(b), (d) with respect to each such purchase or other acquisition, all actions required to be taken with respect to such newly created or acquired Subsidiary (including each subsidiary thereof) or assets in order to satisfy the requirements set forth in the definition of the term “Collateral and Guarantee Requirement” to the extent applicable shall have been taken (or arrangements for the taking of such actions within 30 days (or by such later date reasonably satisfactory to the Administrative Agent) shall have been made), (e) after giving effect to any such purchase or other acquisition, (A) no Event of Default shall have occurred and be continuing and (B) the Borrower shall be in compliance, on a Pro Forma Basis, with a Total Leverage Ratio that is no greater than the Total Leverage Ratio immediately prior to the consummation of such acquisition and (f) the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer certifying that all the requirements set forth in this definition have been satisfied with respect to such purchase or other acquisition, together with reasonably detailed calculations demonstrating satisfaction of the requirement set forth in clause (e)(B) above.

Permitted Encumbrances ” means:

(a) Liens for Taxes or assessments that are (i) not yet overdue or (ii) being contested in good faith by appropriate action diligently pursued and adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or construction contractors’ Liens and other similar Liens imposed by law arising in the ordinary course of business that secure amounts not overdue for a period of more than 60 days or, if more than 60 days overdue, are unfiled and no other action has been taken to enforce such Lien or that are being contested in good faith and by appropriate actions diligently pursued, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

(c) Liens incurred or deposits made in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower and its Subsidiaries;

(d) Liens incurred or deposits made to secure the performance of bids, trade contracts, governmental contracts and leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business;


(e) easements, rights-of-way, restrictions (including zoning restrictions), encroachments, protrusions, covenants, and other similar charges or encumbrances and minor title defects affecting real property imposed by law or arising in the ordinary course of business, in each case whether now or hereafter in existence that do not, individually or in the aggregate, materially and adversely detract from the value of said properties or materially interfere with their use in the operation of the business of such Person;

(f) Liens securing, or otherwise arising from, judgments not constituting an Event of Default under Section 7.01(j);

(g) Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Borrower or any of its Subsidiaries; provided that such Lien secures only the obligations of the Borrower or such Subsidiaries in respect of such letter of credit to the extent such obligations are permitted by Section 6.01; and

(h) Liens arising from precautionary Uniform Commercial Code financing statements or similar filings made in respect of operating leases entered into by the Borrower or any of its Subsidiaries;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness other than Liens referred to in clauses (c) and (d) above securing obligations under letters of credit and in clause (g) above.

Permitted Investments ” means any of the following, to the extent owned by the Borrower or any Subsidiary:

(a) dollars or other currencies held by it from time to time in the ordinary course of business;

(b) readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of (i) the United States or (ii) any member nation of the European Union (other than Greece, Portugal, Ireland or Spain), having average maturities of not more than 12 months from the date of acquisition thereof; provided that the full faith and credit of the United States or a member nation of the European Union (other than Greece, Portugal, Ireland or Spain) is pledged in support thereof;

(c) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a Lender or (ii) has combined capital and surplus of at least $250,000,000 (any such bank in the foregoing clauses (i) or (ii) being an “ Approved Bank ”), in each case with average maturities of not more than 12 months from the date of acquisition thereof;

(d) commercial paper and variable or fixed rate notes issued by an Approved Bank (or by the parent company thereof) or any variable or fixed rate note issued by, or guaranteed by, a corporation rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s, in each case with average maturities of not more than 12 months from the date of acquisition thereof;

(e) repurchase agreements entered into by any Person with an Approved Bank, a bank or trust company (including any of the Lenders) or recognized securities dealer, in each case, having capital and surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of (i) the United


States or (ii) any member nation of the European Union (other than Greece, Portugal, Ireland or Spain), in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations;

(f) marketable short-term money market and similar highly liquid funds either (i) having assets in excess of $250,000,000 or (ii) having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

(g) securities with average maturities of 12 months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory having a rating of at least A from S&P or A2 from Moody’s (or the equivalent thereof);

(h) investments with average maturities of 12 months or less from the date of acquisition in mutual funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s;

(i) instruments equivalent to those referred to in clauses (a) through (h) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction; and

(j) investments, classified in accordance with GAAP as current assets of the Borrower and its Subsidiaries, in money market investment programs that are registered under the Investment Company Act of 1940 or that are administered by financial institutions having capital of at least $250,000,000, and, in either case, the portfolios of which are limited such that substantially all of such investments are of the character, quality and maturity described in clauses (a) through (i) of this definition.

Permitted Investors ” shall mean, collectively, (i) the holders of the voting Equity Interests of the Borrower on the Effective Date, (ii) Summit Partners, L.P. and their affiliates, (iii) Brocade and its Affiliates and (iv) other investors who may acquire Series D Preferred Stock in subsequent financing rounds but only to the extent that such other investors hold a number of shares of Series D Preferred Stock that is equal to or less than 20% of the number of shares of Series D Preferred Stock held by Summit Partners, L.P. and their Affiliates.

Permitted Refinancing ” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof, does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts paid, and reasonable and customary discounts, commissions, fees and expenses incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 6.01(v), Indebtedness resulting from such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a weighted average life to maturity equal to or greater than the weighted average life to maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) no Event of Default shall have occurred and be continuing or would result therefrom, (d) if the Indebtedness


being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Loan Document Obligations, Indebtedness resulting from such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Loan Document Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (e) the terms and conditions applicable to such Permitted Refinancing (including as to collateral), when taken as a whole, shall be comparable to, or not materially less favorable to the Borrower than, either, (x) the terms and conditions of the Indebtedness being so modified, refinanced, refunded, renewed or extended or (y) the prevailing market terms and conditions applicable to similar Indebtedness for similarly-situated issuers at the time of such incurrence; provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior (or such shorter period as the Administrative Agent may approve in its sole discretion) to such modification, refinancing, refunding, renewal or extension, together with a reasonably detailed description of the material terms and conditions of such resulting Indebtedness or drafts of the material definitive documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirements of this clause (e) shall be conclusive unless the Administrative Agent provides notice to the Borrower of its reasonable objection during such five-Business Day period (or such shorter period as the Administrative Agent may approve in its sole discretion) together with a reasonable description of the basis upon which it objects, and (f) except as otherwise permitted under Section 6.01, such modification, refinancing, refunding, renewal or extension is incurred by the Person who is the obligor on the Indebtedness being modified, refinanced, refunded, renewed or extended. For the avoidance of doubt, it is understood that a Permitted Refinancing may constitute a portion of an issuance of Indebtedness in excess of the amount of such Permitted Refinancing; provided that such excess amount is otherwise permitted to be incurred under Section 6.01.

Person ” means any individual, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Loan Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

Platform ” has the meaning assigned to such term in Section 5.01.

Prime Rate ” means the rate publicly announced from time to time by Royal Bank of Canada as its prime commercial lending rate for dollar loans in the United States. The Prime Rate is based upon various factors including Royal Bank of Canada’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Royal Bank of Canada shall take effect at the opening of business on the day specified in the public announcement of such change.

Pro Forma Basis ,” “ Pro Forma Compliance ” and “ Pro Forma Effect ” means, with respect to compliance with any test or covenant hereunder required by the terms of this Agreement to be made on a Pro Forma Basis, that all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant: (i) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (A) in the case of a Disposition of all or substantially all Equity Interests in any Subsidiary of the Borrower or any division, product line, or facility used for operations of the Borrower or any of its Subsidiaries, shall be excluded and (B) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction,” shall


be included, (ii) any retirement of Indebtedness, and (iii) any Indebtedness incurred or assumed by the Borrower or any of its Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness as at the relevant date of determination (taking into account any hedging obligation applicable to such Indebtedness); provided that the foregoing pro forma adjustments may be applied to any such test or covenant solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA.

Proposed Change ” has the meaning assigned to such term in Section 9.02(c).

Public Lender ” has the meaning assigned to such term in Section 5.01.

Qualified Equity Interests ” means Equity Interests other than Disqualified Equity Interests, and in any event Qualified Equity Interests include the Series D Preferred Stock (as in effect on the date hereof, or as may be amended in a manner not materially adverse to the Lenders).

Qualified Public Offering ” means the issuance by the IPO Entity of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act or in a firm commitment underwritten offering (or series of related offerings of securities to the public pursuant to a final prospectus) made pursuant to the Securities Act.

Register ” has the meaning assigned to such term in Section 9.04(b).

Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the partners, directors, officers, employees, trustees, agents, controlling persons, shareholders, advisors and other representatives of such Person and of each of such Person’s Affiliates and permitted successors and assigns.

Release ” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) and including the environment within any building, or any occupied structure, facility or fixture.

Required Lenders ” means, at any time, two or more Lenders having Revolving Exposures and unused Commitments representing more than 50% of the aggregate Revolving Exposures and unused Commitments at such time; provided that to the extent set forth in Section 9.02, whenever there are one or more Defaulting Lenders, the total outstanding Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

Requirements of Law ” means, with respect to any Person, any statutes, laws, treaties, rules, regulations, orders, decrees, writs, injunctions or determinations of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Responsible Officer ” means the chief executive officer, president, vice president, chief financial officer, treasurer, or other similar officer, or manager of a Loan Party and with respect to certain limited liability companies or partnerships that do not have officers, any manager, sole member, managing member or general partner thereof. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all


necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in the Borrower or any of its Subsidiaries or any option, warrant or other right to acquire any such Equity Interests in the Borrower or any of its Subsidiaries.

Revolving Commitment ” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to an Assignment and Assumption. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Revolving Commitment, as the case may be. The initial aggregate amount of the Lenders’ Revolving Commitments is $35,000,000.

Revolving Exposure ” means, with respect to any Revolving Lender at any time, the sum of the outstanding principal amount of such Revolving Lender’s Revolving Loans and its LC Exposure at such time.

Revolving Lender ” means a Lender with a Revolving Commitment or, if the Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.

Revolving Loan ” means a Loan made pursuant to Section 2.01.

S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business.

SEC ” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.

Secured Obligations ” has the meaning assigned to such term in the Collateral Agreement.

Secured Party ” has the meaning assigned to such term in the Collateral Agreement.

Securities Act ” means the Securities Act of 1933, as amended.

Security Documents ” means the Collateral Agreement, the Mortgages and each other security agreement, mortgage, pledge agreement, control agreement and any other instruments and documents executed and delivered pursuant to the Collateral and Guarantee Requirement, Section 5.11 or 5.12 to secure any of the Secured Obligations.

Series D Preferred Stock ” means the Series D Preferred Stock of the Borrower.

Specified Equity Contribution ” shall have the meaning assigned to such term in Section 7.02.


Specified Litigation ” means Brocade Communications Systems, Inc. et. al. v A10 Networks, Inc. et. al. filed in the United States District Court for the Northern District of California.

Specified Settlement ” means a final settlement of the Specified Litigation that shall be satisfied by the Borrower’s payment of (i) $5,000,000 in cash and (ii) all outstanding principal and interest arising under the Bridge Loan Note, and pursuant to which, upon making such payments, the Loan Parties are fully released from any further obligation to the plaintiffs in the Specified Litigation in accordance with the Stipulated Judgment dated June 10, 2013.

Specified Transaction ” means, with respect to any period, (i) any purchase or other acquisition, by merger or otherwise, by the Borrower or any of its Subsidiaries of all of the Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person, (ii) the Disposition of all or substantially all Equity Interests in any Subsidiary of the Borrower or any division, product line, or facility used for operations of the Borrower or any of its Subsidiaries, (iii) the incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes unless such repayment of Indebtedness is accompanied by a corresponding permanent commitment reduction), (iv) any Restricted Payment, or (v) any other event that by the terms of the Loan Documents requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis.

Statutory Reserve Rate ” means, with respect to any currency, a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset or similar percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by any Governmental Authority of the United States or of the jurisdiction of such currency or any jurisdiction in which Loans in such currency are made to which banks in such jurisdiction are subject for any category of deposits or liabilities customarily used to fund loans in such currency or by reference to which interest rates applicable to Loans in such currency are determined. Such reserve, liquid asset or similar percentages shall include those imposed pursuant to Regulation D of the Board of Governors. Eurodollar Loans shall be deemed to be subject to such reserve, liquid asset or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D or any other applicable law, rule or regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) the management of which is, as of such date, otherwise Controlled, directly or indirectly, through one or more intermediaries, by such Person.

Subsidiary ” means any subsidiary of the Borrower.

Subsidiary Loan Party ” means each Subsidiary of the Borrower that is a party to the Guarantee Agreement.

Swap Agreement ” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement or contract involving, or settled by reference to, one


or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that for the avoidance of doubt, the following shall not be a “Swap Agreement” (i) phantom stock or similar plan (including, any stock compensation plan) providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or its Subsidiaries, (ii) any stock option or warrant agreement for the purchase of Equity Interests of the Borrower, (iii) the purchase of Equity Interests or Indebtedness (including securities convertible into Equity Interests) of Borrower pursuant to delayed delivery contracts, accelerated stock repurchase agreements, forward contracts or other similar agreements and (iv) any of the foregoing to the extent that it constitutes a derivative embedded in a convertible security issued by the Borrower.

Syndication Agent ” means J.P. Morgan Securities LLC.

Synthetic Lease ” shall mean, as to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.

Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Test Period ” means the most recent period of four consecutive fiscal quarters of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b).

Total Leverage Ratio ” means, on any date, the ratio of (a) Consolidated Total Debt as of such date to (b) Consolidated EBITDA for the most recently ended Test Period.

Transaction Costs ” means all fees, costs and expenses incurred or payable by the Borrower or any other Subsidiary in connection with the Transactions.

Transactions ” means (a) the Financing Transactions, (b) the Equity Contribution and (c) the payment of the Transaction Costs.

Type ” when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted Eurodollar Rate or the Alternate Base Rate.

Unrestricted Cash ” shall mean, at any time, the aggregate amount of cash and Permitted Investments that can be converted into cash within 30 days held in accounts of the Borrower and the Subsidiary Guarantors that are held with a Lender or any Affiliate of a Lender and subject to a first priority lien in favor of the Administrative Agent pursuant to the Security Documents, to the extent that the use of such cash or Permitted Investments for application to the payment of the Loan Document Obligations is not prohibited by law or any contract or other agreement and such cash and Permitted Investments are free and clear of all Liens (other than Liens in favor of the Administrative Agent and other Liens permitted under Section 6.02(xv)(A)); provided , however, that notwithstanding the foregoing, Unrestricted Cash shall in all cases include (i) any cash and Permitted Investments held in accounts of the Borrower and the Subsidiary Guarantors that are held with a Lender, or any Affiliate of a Lender, in a jurisdiction other than the United States, (ii) any cash and Permitted Investments that can be converted into cash within 30 days held in accounts of the Borrower and the Subsidiary Guarantors in a jurisdiction


other than the United States and that are not held with a Lender or any of its Affiliates because such Lender and its Affiliates do not maintain a presence in the jurisdiction in which such accounts are held, (iii) any cash and Permitted Investments that can be converted into cash within 30 days held in accounts of a Foreign Subsidiary which can be distributed to the Borrower or a Subsidiary Guarantor within 30 days and (iv) prior to January 1, 2014, any cash and Permitted Investments that can be converted into cash within 30 days held in accounts of the Borrower and the Subsidiary Guarantors held with Silicon Valley Bank or its Affiliates.

USA Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended from time to time.

Wholly Owned Subsidiary ” means, with respect to any Person at any date, a subsidiary of such Person of which securities or other ownership interests representing 100% of the Equity Interests (other than (a) directors’ qualifying shares and (b) nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law) are, as of such date, owned, controlled or held by such Person or one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.

Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

Section 1.02 Classification of Loans and Borrowings . For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class ( e.g ., a “ Revolving Loan ”) or by Type ( e.g ., a “ Eurodollar Loan ” or “ ABR Loan ”) or by Class and Type ( e.g ., a “ Eurodollar Revolving Loan ”). Borrowings also may be classified and referred to by Class ( e.g ., a “ Revolving Borrowing ”) or by Type ( e.g ., a “ Eurodollar Borrowing ”) or by Class and Type ( e.g ., a “ Eurodollar Revolving Borrowing ”).

Section 1.03 Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (a) any definition of or reference to any agreement (including this Agreement and the other Loan Documents), instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) unless otherwise specified, all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

Section 1.04 Accounting Terms; GAAP . Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided , however , that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision (including any definitions) hereof to eliminate the


effect of any change occurring after the Effective Date in GAAP or in the application thereof on the operation of such provision; provided , the Borrower and the Administrative Agent shall negotiate in good faith to amend the financial definitions and related covenants to preserve the original intent thereof in light of such change (and such amendments to be subject to the approval of the Required Lenders); (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith ( provided , that, in the case of any amendment arising out of an accounting change described in the Proposed Accounting Standards Update to Leases (Topic 840) dated August 17, 2010, and the Proposed Accounting Standards Update (Revised) to Revenue Recognition (Topic 605) dated November 14, 2011 and January 4, 2012, there shall be no amendment fee). Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Financial Accounting Standards Accounting Standards Codification No. 825—Financial Instruments, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Indebtedness of the Borrower or any Subsidiary at “fair value” as defined therein.

Section 1.05 Currency Translation . For purposes of any determination under Article V, Article VI (other than Sections 6.10 and 6.11) or Article VII or any determination under any other provision of this Agreement expressly requiring the use of a currency exchange rate, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than dollars shall be translated into dollars at currency exchange rates in effect on the date of such determination; provided , however , that for purposes of determining compliance with Article VI with respect to the amount of any Indebtedness, Investment, Disposition or Restricted Payment in a currency other than dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is incurred or Disposition or Restricted Payment made. For purposes of Sections 6.10 and 6.11, amounts in currencies other than dollars shall be translated into dollars at the currency exchange rates used in preparing the most recently delivered financial statements pursuant to Section 5.01(a) and (b).

Section 1.06 Letter of Credit Amounts . Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided , that with respect to any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

Section 1.07 Pro Forma Calculations . Notwithstanding anything to the contrary herein, for the purposes of calculating the Total Leverage Ratio, Specified Transactions that have been made (i) during the applicable Test Period, or (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is being made shall be calculated on a Pro Forma Basis; provided , that for purposes of calculating the Financial Performance Covenants pursuant to Sections 6.10 and 6.11, any Specified Transactions that occurred subsequent to the end of the applicable Test Period shall not be given Pro Forma Effect with respect to such Test Period.


Article II

The Credits

Section 2.01 Commitments . Subject to the terms and conditions set forth herein, each Revolving Lender agrees severally and not jointly to make Revolving Loans to the Borrower denominated in dollars from time to time during the Availability Period in an aggregate principal amount which will not result in such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.

Section 2.02 Loans and Borrowings .

(a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans of the same Class and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class. The failure of any Lender to make any Revolving Loan required to be made by it shall not relieve any other Lender of its obligations hereunder, provided that the Commitments of the Lenders are several and other than as expressly provided herein with respect to a Defaulting Lender, no Lender shall be responsible for any other Lender’s failure to make Loans as required hereby.

(b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that a Eurodollar Borrowing that results from a continuation of an outstanding Eurodollar Borrowing may be in an aggregate amount that is equal to such outstanding Borrowing. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of eight (8) Eurodollar Borrowings outstanding. Notwithstanding anything to the contrary herein, an ABR Revolving Borrowing may be in an aggregate amount which is equal to the entire unused balance of the aggregate Revolving Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(f).

Section 2.03 Requests for Borrowings . To request a Revolving Borrowing, the Borrower shall notify the Administrative Agent of such request for a Revolving Loan in writing, (a) in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New York time, three Business Days before the date of the proposed Borrowing (or, in the case of any Eurodollar Borrowing to be made on the Effective Date, such shorter period of time as may be agreed to by the Administrative Agent), or (b) in the case of an ABR Borrowing, not later than 1:00 p.m., New York City time, one Business Day before the date of the proposed Borrowing; provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(f) may be given not later than 12:00 p.m., New York City time, on the date of the proposed Borrowing. Each such Borrowing Request shall be irrevocable and shall be transmitted by hand delivery or facsimile or other electronic transmission to the Administrative Agent of a written Borrowing Request signed by the Borrower. Each such Borrowing Request shall specify the following information:


(i) the aggregate amount of such Borrowing;

(ii) the date of such Borrowing, which shall be a Business Day;

(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;

(v) the location and number of the Borrower’s account or such other account or accounts to which funds are to be disbursed, which shall comply with the requirements of Section 2.06, or, in the case of any ABR Revolving Borrowing requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement; and

(vi) that as of the date of such Borrowing, the conditions set forth in Sections 4.02(b) and 4.02(c) are satisfied.

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the applicable Class, of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

Section 2.04 [intentionally omitted]

Section 2.05 Letters of Credit .

(a) General . Subject to the terms and conditions set forth herein (including Section 2.19), each Issuing Bank agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.05, to issue Letters of Credit denominated in dollars, for the Borrower’s own account (or for the account of any other Subsidiary of the Borrower so long as the Borrower and such other Subsidiary are co-applicants in respect of such Letter of Credit), in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, which shall reflect the standard operating procedures of such Issuing Bank, at any time and from time to time during the Availability Period and prior to the fifth Business Day prior to the Maturity Date. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.

(b) Issuance, Amendment, Renewal, Extension; Certain Conditions . To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall deliver in writing by hand delivery or facsimile (or transmit by electronic communication, if arrangements for doing so have been approved by the recipient) to the applicable Issuing Bank and the Administrative Agent (at least five Business Days before the requested date of issuance, amendment, renewal or extension or such shorter


period as the applicable Issuing Bank and the Administrative Agent may agree) a notice requesting the issuance of a Letter of Credit in the form of Exhibit H hereto, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (d) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. The Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of any Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) the Applicable Fronting Exposure of each Issuing Bank shall not exceed its Revolving Commitment, (ii) the aggregate Revolving Exposures shall not exceed the aggregate Revolving Commitments and (iii) the aggregate LC Exposure shall not exceed the Letter of Credit Sublimit. No Issuing Bank shall be under any obligation to issue any Letter of Credit if (i) any order, judgment or decree of any Governmental Authority or arbitrator shall enjoin or restrain such Issuing Bank from issuing the Letter of Credit, or any law applicable to such Issuing Bank any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank in good faith deems material to it, (ii) except as otherwise agreed by the Administrative Agent and the such Issuing Bank, the Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit, (iii) the issuance of such Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally or (iv) any Lender is at that time a Defaulting Lender, if after giving effect to Section 2.19(a)(iv), any Defaulting Lender Fronting Exposure remains outstanding, unless such Issuing Bank has entered into arrangements, including the delivery of cash collateral, reasonably satisfactory to such Issuing Bank with the Borrower or such Lender to eliminate such Issuing Bank’s Defaulting Lender Fronting Exposure arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other LC Exposure as to which such Issuing Bank has Defaulting Lender Fronting Exposure.

(c) Notice . Each Issuing Bank agrees that it shall not permit any issuance, amendment, renewal, or extension of a Letter of Credit to occur unless it shall have given to the Administrative Agent written notice thereof required under paragraph (m) of this Section.

(d) Expiration Date . Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date that is twelve months after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, twelve months after such renewal or extension) and (ii) the date that is five Business Days prior to the Maturity Date; provided that if such expiry date is not a Business Day, such Letter of Credit shall expire at or prior to the close of business on the next succeeding Business Day; provided , further , that any Letter of Credit may, upon the request of the Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of twelve months or less (but not beyond the date that is five Business Days prior to the Maturity Date except to the extent cash collateralized at 103% of the aggregate amount thereof or backstopped pursuant to an arrangement reasonably acceptable to the Issuing Bank) unless the applicable Issuing Bank


notifies the beneficiary thereof within the time period specified in such Letter of Credit or, if no such time period is specified, at least 30 days prior to the then-applicable expiration date, that such Letter of Credit will not be renewed. If the Borrower decides not to automatically renew any Letter of Credit, it shall notify the applicable Issuing Bank not less than fifteen days prior to the time period specified in such Letter of Credit by which such Issuing Bank must send a notice of non-renewal.

(e) Participations . By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank that is the issuer thereof or the Lenders, such Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Revolving Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (f) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(f) Reimbursement . If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 1:00 p.m., New York time, on the Business Day immediately following the day that the Borrower receives notice of such LC Disbursement, provided that, if such LC Disbursement is not reimbursed within such timeframe, the Borrower, subject to the conditions to borrowing set forth herein, shall be deemed to have requested in accordance with Section 2.03 that such payment be financed with an ABR Revolving Borrowing in an equivalent amount, and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis , to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse any Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.


(g) Obligations Absolute . The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (f) of this Section is absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. None of the Administrative Agent, the Lenders, the Issuing Banks or any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Banks; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s gross negligence or willful misconduct in determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof (as determined by a court of competent jurisdiction in a final, nonappealable judgment). In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit, and any such acceptance or refusal shall be deemed not to constitute gross negligence or willful misconduct.

(h) Disbursement Procedures . Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Each Issuing Bank shall promptly notify the Administrative Agent and the Borrower in writing (by hand delivery or facsimile or other electronic format) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement in accordance with paragraph (f) of this Section.

(i) Interim Interest . If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of this Section, then Section 2.12(c) shall apply. Interest accrued pursuant to this paragraph shall be paid to the Administrative Agent, for the account of the


applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (f) of this Section to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment and shall be payable on demand or, if no demand has been made, on the date on which the Borrower reimburses the applicable LC Disbursement in full.

(j) Cash Collateralization . If any Event of Default under paragraph (a), (b), (h) or (i) of Section 7.01 shall occur and be continuing, on the Business Day on which the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure representing more than 50% of the aggregate LC Exposure of all Revolving Lenders) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to 103% of the portions of the LC Exposure attributable to Letters of Credit as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in paragraph (h) or (i) of Section 7.01. The Borrower also shall deposit cash collateral pursuant to this paragraph as and to the extent required by Section 2.10(b). Each such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. At any time that there shall exist a Defaulting Lender, if any Defaulting Lender Fronting Exposure remains outstanding (after giving effect to Section 2.19(a)(iv)), then promptly upon the request of the Administrative Agent or the Issuing Bank, the Borrower shall deliver to the Administrative Agent cash collateral in an amount sufficient to cover such Defaulting Lender Fronting Exposure (after giving effect to any cash collateral provided by the Defaulting Lender). The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent in Permitted Investments, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Lenders with LC Exposure representing more than 50% of the aggregate LC Exposure of all the Revolving Lenders), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default or the existence of a Defaulting Lender, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived or after the termination of Defaulting Lender status, as applicable. If the Borrower is required to provide an amount of cash collateral hereunder pursuant to Section 2.10(b), such amount (to the extent not applied as aforesaid) shall be returned to the Borrower as and to the extent that, after giving effect to such return, the Borrower would remain in compliance with Section 2.10(b) and no Event of Default shall have occurred and be continuing.

(k) Designation of Additional Issuing Banks . The Borrower may, at any time and from time to time, designate as additional Issuing Banks one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in


form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Revolving Lender and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein to the term “Issuing Bank” shall be deemed to include such Revolving Lender in its capacity as an issuer of Letters of Credit hereunder.

(l) Termination of an Issuing Bank . The Borrower may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Issuing Bank’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall have been reduced to zero. At the time any such termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the terminated Issuing Bank pursuant to Section 2.11(b). Notwithstanding the effectiveness of any such termination, the terminated Issuing Bank shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such termination, but shall not issue any additional Letters of Credit.

(m) Issuing Bank Reports to the Administrative Agent . Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancellations and all disbursements and reimbursements, (ii) within five Business Days following the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the face amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date and amount of such LC Disbursement, (iv) on any Business Day on which the Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount of such LC Disbursement and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.

(n) Applicability of ISP and UCP . Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of Credit.

Section 2.06 Funding of Borrowings .

(a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds in dollars by 3:00 p.m., New York time (or on the Effective Date, such earlier time as notified to the Lenders prior to the Effective Date), to the Applicable Account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans


available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent in New York City or such other account designated by the Borrower in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f) shall be remitted by the Administrative Agent to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to Section 2.05(f) to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear.

(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance on such assumption and in its sole discretion, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender agrees to pay to the Administrative Agent an amount equal to such share on demand of the Administrative Agent. If such Lender does not pay such corresponding amount forthwith upon demand of the Administrative Agent therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower agrees to pay such corresponding amount to the Administrative Agent forthwith on demand. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower interest on such corresponding amount, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to such Borrowing in accordance with Section 2.12. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.

(c) The obligations of the Lenders hereunder to make Revolving Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 9.03(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 9.03(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 9.03(c).

Section 2.07 Interest Elections .

(a) Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request or designated by Section 2.03 and, in the case of a Eurodollar Borrowing shall have an initial Interest Period as specified in such Borrowing Request or designated by Section 2.03. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.


(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election in writing by the time and in the manner that a Revolving Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable and shall be transmitted by hand delivery, facsimile or other electronic transmission to the Administrative Agent of a written Interest Election Request signed by the Borrower.

(c) Each Interest Election Request shall specify the following information in compliance with Section 2.03:

(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

(iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period.”

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

(d) Promptly following receipt of an Interest Election Request in accordance with this Section, the Administrative Agent shall advise each Lender of the applicable Class, of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing, (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

Section 2.08 Termination and Reduction of Commitments .

(a) Unless previously terminated, the Revolving Commitments shall terminate on the Maturity Date (it being understood that no borrowings shall be made after the date that is five Business Days prior to the Maturity Date).

(b) The Borrower may at any time terminate, or from time to time reduce, the Revolving Commitments; provided that (i) each reduction of the Commitments of any Class


shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.10, the aggregate Revolving Exposures would exceed the aggregate Revolving Commitments.

(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Commitments under paragraph (b) of this Section 2.08 at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section 2.08 shall be irrevocable, provided that a notice of termination delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date of termination) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class.

Section 2.09 Repayment of Loans; Evidence of Debt .

(a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid outstanding principal amount of each Revolving Loan of such Lender on the Maturity Date.

(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section 2.09 shall be prima facie evidence of the existence and amounts of the obligations recorded therein absent manifest error, provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to pay any amounts due hereunder in accordance with the terms of this Agreement. In the event of any inconsistency between the entries made pursuant to paragraphs (b) and (c) of this Section 2.09, the accounts maintained by the Administrative Agent pursuant to paragraph (c) of this Section shall control absent manifest error. In the event of any conflict between the accounts and records of any Lender or the Administrative Agent under this Section 2.09, on the one hand, and the Register, on the other hand, the Register shall control absent manifest error.

(e) Any Lender may request through the Administrative Agent that Loans of any Class made by it be evidenced by a promissory note. In such event, the Borrower shall


execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form provided by the Administrative Agent and approved by the Borrower.

Section 2.10 Prepayment of Loans .

(a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part on a pro rata basis with respect to any Class, without penalty or premium.

(b) In the event and on each occasion that the aggregate Revolving Exposures exceed the aggregate Revolving Commitments, the Borrower shall prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount necessary to eliminate such excess.

(c) The Borrower shall notify the Administrative Agent in writing (by facsimile or other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that a notice of optional prepayment may state that such notice is conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12 and amounts required pursuant to Section 2.15.


Section 2.11 Fees .

(a) The Borrower agrees to pay to the Administrative Agent in dollars for the account of each Revolving Lender a commitment fee, which shall accrue at the rate of 0.45%  per annum on the average daily unused amount of the Revolving Commitment of such Lender during the period from and including the Effective Date to but excluding the date on which the Revolving Commitments terminate. Accrued commitment fees shall be payable in arrears on the first Business Day following the last day of March, June, September and December of each year and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the date hereof. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing commitment fees, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such Lender.

(b) The Borrower agrees to pay (i) to the Administrative Agent in dollars for the account of each Revolving Lender (other than any Defaulting Lender) a participation fee with respect to its participations in Letters of Credit, which shall accrue at the Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to and including the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure and (ii) to each Issuing Bank in dollars a fronting fee for each Letter of Credit equal to the greater of (x) $500 per annum and (y) 0.125%  per annum on the average daily amount of the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to and including the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any LC Exposure, as well as such Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees for standby Letters of Credit accrued through and including the last day of March, June, September and December of each year shall be payable on the third Business Day following such last day, commencing on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on which the Revolving Commitments terminate and any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to an Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent (including, without limitation, pursuant to the Fee Letter).

(d) Notwithstanding the foregoing, and subject to Section 2.19, the Borrower shall not be obligated to pay any amounts to any Defaulting Lender pursuant to this Section 2.12.


Section 2.12 Interest .

(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate.

(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted Eurodollar Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.

(c) Notwithstanding the foregoing, commencing upon the occurrence of and during the continuation of an Event of Default, all principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of principal of any Loan, 2.00%  per annum plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2.00%  per annum plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of this Section; provided that no amount shall be payable pursuant to this Section 2.12(c) to a Defaulting Lender so long as such Lender shall be a Defaulting Lender; provided further that no amounts shall accrue pursuant to this Section 2.12(c) on any amount, reimbursement obligation in respect of any LC Disbursement or other amount payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender.

(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments, provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or Adjusted Eurodollar Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

Section 2.13 Alternate Rate of Interest . If at least two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing:

(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period; or

(b) the Administrative Agent is advised by the Required Lenders that the Adjusted Eurodollar Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower


and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing, then such Borrowing shall be made as an ABR Borrowing; provided , however , that, in each case, the Borrower may revoke any Borrowing Request that is pending when such notice is received.

Section 2.14 Increased Costs .

(a) If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any Issuing Bank (except any such reserve requirement reflected in the Adjusted Eurodollar Rate);

(ii) impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein; or

(iii) subject any Lender or Issuing Bank or Administrative Agent to any Taxes (other than (A) Indemnified Taxes, (B) Other Taxes, (C) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (D) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

and the result of any of the foregoing shall be to materially increase the cost to such Lender or Issuing Bank or Administrative Agent (as applicable) of making, continuing, converting into or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to materially increase the cost to such Lender or Issuing Bank or Administrative Agent of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or issue any Letter of Credit) or to materially reduce the amount of any sum received or receivable by such Lender or Issuing Bank or Administrative Agent hereunder (whether of principal, interest or otherwise), then, from time to time upon request of such Lender or Issuing Bank or Administrative Agent, the Borrower will pay to such Lender or Issuing Bank or Administrative Agent, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or Administrative Agent, as the case may be, for such increased costs actually incurred or reduction actually suffered.

(b) If any Lender or Issuing Bank reasonably determines that any Change in Law regarding capital or liquidity requirements has the effect of materially reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy), then, from time to time upon request of such Lender or Issuing Bank, the Borrower will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction actually suffered.


(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company in reasonable detail, as the case may be, as specified in paragraph (a) or (b) of this Section delivered to the Borrower shall be presumptively correct absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 15 days after receipt thereof.

(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

Section 2.15 Break Funding Payments . In the event of (a) the payment of any principal of any Eurodollar Loan prior to the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Revolving Loan on the date specified in any notice delivered pursuant hereto or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.18 or Section 9.02(c), then, in any such event, the Borrower shall, after receipt of a written request by any Lender affected by any such event (which request shall set forth in reasonable detail the basis for requesting such amount), compensate each Lender for the loss, cost and expense attributable to such event. For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 2.15, each Lender shall be deemed to have funded each Eurodollar Loan made by it at the Adjusted Eurodollar Rate, as applicable, for such Loan by a matching deposit or other borrowing in the applicable interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Loan was in fact so funded. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section delivered to the Borrower shall be presumptively correct absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 15 days after receipt of such demand.

Section 2.16 Taxes .

(a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without deduction or withholding for any Indemnified Taxes or Other Taxes, provided that if the Borrower, Guarantor, the Administrative Agent or other applicable withholding agent (as the case may be) shall be required by applicable Requirements of Law (as determined in the good faith discretion of the Borrower, Guarantor, the Administrative Agent or other applicable withholding agent (as the case may be)) to deduct or withhold any Indemnified Taxes or Other Taxes from such payments, then (i) the amount payable by the applicable Loan Party shall be increased as necessary so that after all required deductions or withholdings for Indemnified Taxes and Other Taxes have been made (including deductions and withholdings for Indemnified Taxes and Other Taxes applicable to additional amounts payable under this Section) the Administrative Agent, Lender or Issuing Bank (as the case may be) receives an amount equal to the sum it would have received had no such deductions or withholdings for Indemnified Taxes and Other Taxes been made, (ii) the Borrower,


Guarantor, the Administrative Agent or other applicable withholding agent (as the case may be) shall make such deductions and (iii) the Borrower, Guarantor, the Administrative Agent or other applicable withholding agent (as the case may be) shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law.

(b) Without limiting the provisions of paragraph (a) above, the Borrower shall timely pay any Other Taxes (without duplication of Section 2.16(a)) to the relevant Governmental Authority in accordance with Requirements of Law.

(c) The Loan Parties shall jointly and severally indemnify the Administrative Agent, each Lender and each Issuing Bank, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes paid by the Administrative Agent, such Lender or such Issuing Bank, as the case may be, on or with respect to any payment by or on account of any obligation of any Loan Party under any Loan Document and any Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties or interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or an Issuing Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest error.

(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan Party to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e) Status of Lenders

(i) The Administrative Agent, each Lender, and Issuing Bank shall, (i) on or before the date on which it becomes a party to this Agreement, and (ii) at such times as are required by law or reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative Agent with two original copies of any properly completed and executed documentation certification or providing information reasonably requested by the Borrower or the Administrative Agent that may or will establish, an entitlement of such Person to an exemption from, or reduction in, any withholding Tax with respect to any payments to be made to such Person under the Loan Documents (including any documentation necessary to establish an exemption from, or reduction of, any Taxes that may be imposed under FATCA). Each such Person shall, whenever a lapse in time or change in circumstances renders such documentation expired, obsolete or inaccurate in any respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so. In addition, any Person, if required by law or reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Person is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding three


sentences, the completion, execution and submission of such documentation (other than such documentation set forth in (ii)(1) and (ii)(2) and (ii)(4) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii) Without limiting the generality of the foregoing:

(1) Each Administrative Agent, Lender, and Issuing Bank that is a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent (i) on or before the date on which it becomes a party to this Agreement, (ii) on or before the date that such form expires or becomes obsolete or inaccurate in any material respect, (iii) after the occurrence of a change in such Person’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter when required by Law or upon the reasonable request of the Borrower or the Administrative Agent, two properly completed and duly signed original copies of IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding.

(2) Each Administrative Agent, Lender, and Issuing Bank that is not a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent (i) on or before the date on which it becomes a party to this Agreement, (ii) on or before the date that such form expires or becomes obsolete or inaccurate in any material respect, (iii) after the occurrence of a change in such Person’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter when required by Law or upon the reasonable request of the Borrower or the Administrative Agent, whichever of the following is applicable:

(A) two properly completed and duly signed original copies of IRS Form W-8BEN (or any successor forms) claiming eligibility for benefits of an income tax treaty to which the United States of America is a party,

(B) two properly completed and duly signed original copies of IRS Form W-8ECI (or any successor forms) certifying that the income receivable pursuant to any Loan Document is effectively connected with the conduct of a trade or business in the United States,

(C) in the case of a Person claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a properly completed and duly signed certificate, in substantially the form of Exhibit G (any such certificate a “United States Tax Compliance Certificate”), or any other form approved by the Administrative Agent and the Borrower, establishing that such Lender is not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation”


described in Section 881(c)(3)(C) of the Code, and that no payments in connection with the Loan Documents are effectively connected with such Lender’s conduct of a U.S. trade or business and (y) two properly completed and duly signed original copies of IRS Form W-8BEN (or any successor forms), and/or

(D) to the extent a Person is not the beneficial owner (for example, where the Person is a partnership), IRS Form W-8IMY (or any successor forms) of the Person, accompanied, to the extent required to obtain an exemption from or reduction of Tax, by a Form W-8ECI, W-8BEN, United States Tax Compliance Certificate, Form W-9, Form W-8IMY, (or other successor forms) or any other required information from each beneficial owner, as applicable (provided that, if the Person is a partnership and one or more beneficial owners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate shall be provided by such Person on behalf of such beneficial owners).

(3) Each Administrative Agent, Lender, and Issuing Bank that is not a United States person (as defined in Section 7701(a)(30) of the Code) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (i) on or prior to the date on which it becomes a party to this Agreement, (ii) on or before the date that such form expires or becomes obsolete or inaccurate in any material respect, (iii) after the occurrence of a change in such Person’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter when required by Law or upon the reasonable request of the Borrower or the Administrative Agent, two properly completed and duly signed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made;

(4) If a payment made to the Administrative Agent, a Lender or Issuing Bank under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Person shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by applicable Laws and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Laws (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Person has complied with such Person’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (4), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.


Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

Notwithstanding any other provision of this clause (e), neither the Administrative Agent, nor any Lender, shall be required to deliver any form pursuant to this clause (e) that the Administrative Agent or such Lender is not legally eligible to deliver.

(f) If the Administrative Agent, an Issuing Bank or a Lender determines, in its sole discretion, that it has received a refund in respect of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower or any Guarantor, as the case may be, or with respect to which the Borrower or any Guarantor, as the case may be, has paid additional amounts pursuant to this Section, it shall promptly pay over such refund to the Borrower or Guarantor, as the case may be, (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower or any Guarantor, as the case may be, under this Section 2.16 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of the Administrative Agent, such Issuing Bank or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower or such Guarantor, as the case may be, upon the request of the Administrative Agent, such Issuing Bank or such Lender, agrees promptly to repay the amount paid over to the Borrower or such Guarantor, as the case may be (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Issuing Bank or such Lender in the event the Administrative Agent, such Issuing Bank or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, this subsection shall not be construed to require the Administrative Agent, any Lender or any Issuing Bank to make available its Tax returns (or any other information relating to Taxes which it reasonably deems confidential) to the Borrower, any Guarantor or any other Person. Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent or any Lender be required to pay any amount to the Borrower or any Guarantor pursuant to this paragraph (f) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.

(g) For the avoidance of doubt, nothing in this Agreement shall preclude the Borrower, any Guarantor, and the Administrative Agent from deducting and withholding any Taxes required by any Laws to be deducted and withheld from any payment under any of the Loan Documents, subject to the provisions of this Section 2.16.

Section 2.17 Payments Generally; Pro Rata Treatment; Sharing of Setoffs .

(a) The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or otherwise) prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without condition or deduction for any counterclaim, recoupment or setoff. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing


Bank shall be made as expressly provided herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment (other than payments on the Eurodollar Loans) under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments under each Loan Document shall be made in dollars except as otherwise expressly provided herein.

(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i)  first , towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)  second , towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.

(c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest and (ii) the provisions of this paragraph shall not be construed to apply to (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant. The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on


such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

Section 2.18 Mitigation Obligations; Replacement of Lenders .

(a) If any Lender requests compensation under Section 2.14, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16 or any event gives rise to the operation of Section 2.20, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event, or to assign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment and delegation (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16 or mitigate the applicability of Section 2.20, as the case may be, and (ii) would not subject such Lender to any unreimbursed cost or expense reasonably deemed by such Lender to be material and would not be inconsistent with the internal policies of, or otherwise be disadvantageous in any material economic, legal or regulatory respect to, such Lender.

(b) If (i) any Lender requests compensation under Section 2.14 or gives notice under Section 2.20, (ii) the Borrower is required to pay any additional amount to any Lender or to any Governmental Authority for the account of any Lender pursuant to Section 2.16 or (iii) any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement and the other Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment and delegation); provided that (A) the Borrower shall have received the prior written consent of the Administrative Agent to the extent such consent would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable (and if a Revolving Commitment is being assigned and delegated, each Issuing Bank), which consents, in each case, shall not unreasonably be withheld or delayed, (B) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and unreimbursed participations in LC Disbursements, accrued but unpaid interest thereon, accrued but unpaid fees and all other amounts payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (C) the Borrower or such assignee shall have paid (unless waived) to the Administrative Agent the processing and recordation fee specified in Section 9.04(b)(ii) and (D) in the case of any such assignment resulting from a claim for compensation under Section 2.15, or payments required to be made pursuant to Section 2.16 or a notice given under Section 2.20, such assignment will result in a material reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise (including as a result of any action taken by such Lender under paragraph (a) above), the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Each party hereto agrees that an assignment required pursuant to


this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment need not be a party thereto.

Section 2.19 Defaulting Lenders .

(a) Adjustments . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i) Waivers and Amendments . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 9.02.

(ii) Reallocation of Payments . Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 9.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second , in the case of a Revolving Lender, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to each Issuing Bank hereunder; third , as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth , in the case of a Revolving Lender, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fifth , to the payment of any amounts owing to the Lenders, the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Issuing Bank against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; sixth , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh , to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans or LC Disbursements and such Lender is a Defaulting Lender under clause (a) of the definition thereof, such payment shall be applied solely to pay the relevant Loans of, and LC Disbursements owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied pursuant to Section 2.05(j). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to Section 2.05(j) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

(iii) Certain Fees . That Defaulting Lender (x) shall not be entitled to receive or accrue any commitment fee pursuant to Section 2.11(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that


Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.11(b).

(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure . During any period in which there is a Defaulting Lender and so long as the conditions set forth in Section 4.02 are satisfied, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.05, the “Applicable Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Revolving Commitment of that Defaulting Lender; provided that the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (1) the Revolving Commitment of that non-Defaulting Lender minus (2) the aggregate principal amount of the Revolving Loans of that Lender.

(b) Defaulting Lender Cure . If the Borrower, the Administrative Agent and each Issuing Bank agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash Collateral), such Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.19(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

Section 2.20 Illegality . If any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender to make, maintain or fund Loans whose interest is determined by reference to the Adjusted Eurodollar Rate, or to determine or charge interest rates based upon the Adjusted Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Loans or to convert ABR Loans to Eurodollar Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which is determined by reference to the Adjusted Eurodollar Rate component of the Alternate Base Rate, the interest rate on such ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted Eurodollar Rate component of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon three Business Days’ notice from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Loans of such Lender to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted Eurodollar Rate component of the Alternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans, and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Adjusted Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Alternate Base Rate


applicable to such Lender without reference to the Adjusted Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Adjusted Eurodollar Rate. Each Lender agrees to notify the Administrative Agent and the Borrower in writing promptly upon becoming aware that it is no longer illegal for such Lender to determine or charge interest rates based upon the Adjusted Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

Article III

Representations and Warranties

The Borrower represents and warrants to the Lenders that:

Section 3.01 Organization; Powers . Each of the Loan Parties are duly organized, validly existing and in good standing (to the extent such concept exists in the relevant jurisdictions) under the laws of the jurisdiction of its organization, has the corporate or other organizational power and authority to, except as would not reasonably be expected to have a Material Adverse Effect, carry on its business as now conducted and as proposed to be conducted and to execute, deliver and perform its obligations under each Loan Document to which it is a party and to effect the Transactions and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.

Section 3.02 Authorization; Enforceability . The Transactions to be entered into by each Loan Party have been duly authorized by all necessary corporate or other organizational action and, if required, action by the holders of such Loan Party’s Equity Interests. This Agreement has been duly executed and delivered by the Borrower and constitutes, and each other Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of the Borrower or such Loan Party, as the case may be, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law, and implied covenants of good faith and fair dealing.

Section 3.03 Governmental Approvals; No Conflicts . The Transactions (a) except as described on Schedule 3.03 to the Disclosure Letter, do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect and except filings necessary to perfect Liens created under the Loan Documents, (b) will not violate (i) the Organizational Documents of, or (ii) any Requirements of Law applicable to the Borrower or any Loan Party, (c) will not violate or result in a default under any indenture or other material agreement or instrument binding upon the Borrower or any Loan Party or their respective assets, or give rise to a right thereunder to require any payment, repurchase or redemption to be made by the Borrower or any Loan Party, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation thereunder and (d) will not result in the creation or imposition of any Lien on any asset of the Borrower or any Loan Party, except Liens created under the Loan Documents, except (in the case of each of clauses (a), (b)(ii) and (c)) to the extent that the failure to obtain or make such consent, approval, registration, filing or action, or such violation, as the case may be, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

Section 3.04 Financial Condition; No Material Adverse Effect .


(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of the Borrower as of the date thereof and its results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.

(b) The unaudited (and once delivered pursuant to Section 5.01(a), the audited) consolidated balance sheets of the Borrower as of December 31, 2012 and the related consolidated statements of earnings and cash flows of the Borrower for the one year period ended December 31, 2012 (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of the Borrower as of the date thereof and its results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.

(c) The unaudited consolidated balance sheet of the Borrower dated June 30, 2013, and the related consolidated statements of earnings and cash flows of the Borrower for the three-month period ended June 30, 2013 (A) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (B) fairly present in all material respects the financial condition of the Borrower as of the date thereof and its results of operations for the period covered thereby, subject to the absence of footnotes and to normal year-end audit adjustments.

(d) [intentionally omitted]

(e) Since December 31, 2012, there has been no Material Adverse Effect except as set forth on Schedule 3.04 to the Disclosure Letter.

Section 3.05 Properties .

(a) The Borrower and each Loan Party has good title to, or valid leasehold interests in, all its real and personal property material to its business, if any (including the Mortgaged Properties), (i) free and clear of all Liens except for Liens permitted by Section 6.02 and (ii) except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or as proposed to be conducted or to utilize such properties for their intended purposes, except, in the case of clause (ii), where the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The real and personal property material to the business of the Loan Parties, taken as a whole, (i) is in sufficient operating order, condition and repair (ordinary wear and tear excepted) and (ii) constitutes all the property which is required for the business and operations of the Loan Parties as presently conducted.

(b) As of the Effective Date after giving effect to the Transactions, Schedule 3.05 to the Disclosure Letter, contains a true and complete list of each parcel of real property (including each Mortgaged Property) and identifies whether such parcel is (i) owned by any Loan Party and showing as of the date hereof the street address, county or other relevant jurisdiction, state, record owner and book and estimated fair value thereof and (ii) leased, subleased or otherwise occupied or utilized by any Loan Party, as lessee and showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor, lessee, expiration date and annual rental cost thereof. To the best of the Borrower’s knowledge, each such lease is the legal, valid and binding obligation of the lessor thereof, enforceable in accordance with its terms.


(c) The Loan Parties have complied with all obligations under all leases to which they are a party, except where the failure to comply could not reasonably be expected to have a Material Adverse Effect, and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect. With respect to those leases where any Loan Party is a lessee, such Loan Party enjoys peaceful and undisturbed possession under each lease in which it is the lessee, other than leases in respect of which the failure to enjoy peaceful and undisturbed possession could not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect.

(d) No Loan Party is obligated on the Effective Date under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein, except in each case as specified on Schedule 3.05 or in the lease documents delivered to the Administrative Agent prior to the Effective Date.

(e) No Loan Party has received any notice of, nor has any knowledge of, the occurrence or pendency or contemplation of any condemnation proceeding affecting all or any portion of its property.

(f) The Loan Parties own or have rights to use all of the Collateral and all rights with respect to any of the foregoing used in, necessary for or material to their businesses as currently conducted. The use by each Loan Party with rights in such Collateral and all such rights with respect to the foregoing do not infringe on the rights of any Person other than such infringement which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To Borrower’s actual knowledge, no claim has been and remains outstanding that any Loan Party’s use of any Collateral does or may violate the rights of any third party that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.06 Litigation and Environmental Matters .

(a) Except as set forth in Schedule 3.06 to the Disclosure Letter, there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened in writing against or affecting the Borrower or any Loan Party that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

(b) Except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, none of the Borrower nor any Loan Party (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has, to the knowledge of the Borrower, become subject to any Environmental Liability, (iii) has received written notice of any claim with respect to any Environmental Liability or (iv) has, to the knowledge of the Borrower, any basis to reasonably expect that the Borrower or any Loan Party will become subject to any Environmental Liability.

Section 3.07 Compliance with Laws and Agreements . Each of the Borrower and the Loan Parties is in compliance with (a) its Organizational Documents, (b) all Requirements of Law applicable to it or its property and (c) all indentures and other agreements and instruments binding upon it or its property, except, in the case of clauses (a) (other than as it relates to the Borrower), (b) and (c) of


this Section, where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

Section 3.08 Investment Company Status . None of the Borrower or any Loan Party is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended from time to time.

Section 3.09 Taxes . Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the Borrower and each of its Subsidiaries (a) have timely filed or caused to be filed all Tax returns and reports required to have been filed and (b) have paid or caused to be paid all Taxes required to have been paid (whether or not shown on a Tax return) including in their capacity as Tax withholding agents, except any Taxes that are being contested in good faith by appropriate actions diligently conducted, provided that the Borrower or such Subsidiary, as the case may be, has set aside on its books adequate reserves therefore in accordance with GAAP. There is no tax assessment proposed in writing against the Borrower or the Subsidiaries that would, if made, have a Material Adverse Effect.

Section 3.10 ERISA; Labor Matters .

(a) Except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state laws.

(b) Except as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, (i) no ERISA Event has occurred or, to the knowledge of the Borrower is reasonably expected to occur, (ii) neither a Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA), (iii) neither a Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan and (iv) neither a Loan Party nor any ERISA Affiliate has engaged in a transaction that could reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA.

(c) There are no collective bargaining agreements covering the employees of the Borrower or any Loan Party and, except as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, no Loan Party has suffered any strikes, walk-outs, work stoppages or other labor difficulty within the last five years.

Section 3.11 Disclosure; No Undisclosed Liabilities .

(a) No reports, financial statements, certificates, projections or other written information (other than information of a general economic or industry nature) furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with any Loan Document or delivered thereunder (as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by them to be reasonable at the time delivered and, if such projected financial information was delivered prior to the Effective Date, as of the Effective Date,


it being understood that any such projected financial information may vary from actual results and such variations could be material.

(b) The Loan Parties have no material obligations or liabilities, matured or unmatured, fixed or contingent, other than (i) those set forth or adequately provided for in the financial statements delivered to the Administrative Agent pursuant to this Agreement, (ii) those incurred in the ordinary course of business and not required to be set forth in the financial statements under GAAP, (iii) those incurred in the ordinary course of business since the date of the most recently delivered balance sheet and consistent with past practice, and (iv) those incurred in connection with the execution of this Agreement.

Section 3.12 Subsidiaries . As of the Effective Date, Schedule 3.12 to the Disclosure Letter sets forth the name of, and the ownership interest of the Borrower and each Subsidiary in, each Subsidiary.

Section 3.13 Intellectual Property; Licenses, Etc . Except with respect to immaterial defects, the Borrower and the Loan Parties own, license or possess the right to use, all of the trademarks, service marks, trade names, domain names, copyrights, patents, patent rights, licenses, technology, software, know-how database rights, design rights and other rights to Intellectual Property that are reasonably necessary for the operation of their businesses as currently conducted, and, without conflict with the rights of any Person. To the Borrower’s knowledge, no Intellectual Property, advertising, product, process, method, substance, part or other material used by the Borrower or any Loan Party in the operation of its business as currently conducted infringes upon any rights held by any Person except for such infringements, individually or in the aggregate, which could not reasonably be expected to have a Material Adverse Effect. Except as disclosed on Schedule 3.13 to the Disclosure Letter, (i) no claim or litigation regarding any of the Intellectual Property is pending or, to the knowledge of the Borrower or any other Loan Party, threatened against the Borrower or any Loan Party and (ii) neither the Borrower nor any other Loan Party has received a written notice disputing such Person’s ownership, license or possession of such Intellectual Property, which, in each case, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 3.14 Solvency . From and after the consummation of the Transactions to occur on the Effective Date, after taking into account all applicable rights of indemnity and contribution, (a) the fair value of the assets of the Borrower and its Subsidiaries exceeds their debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the property of the Borrower and its Subsidiaries is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) the Borrower and its Subsidiaries are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured, and (d) the Borrower and its Subsidiaries are not engaged in, and are not about to engage in, business for which they have unreasonably small capital. For purposes of this Section 3.14, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual or matured liability.

Section 3.15 Federal Reserve Regulations . None of the Borrower or any of its Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors), or extending credit for the purpose of purchasing or carrying margin stock. No part of the proceeds of the Loans will be used, directly or indirectly, to purchase or carry any margin stock or to refinance any Indebtedness originally incurred for such purpose or for any other purpose that, in each case, entails a


violation (including on the part of any Lender) of the provisions of Regulations U or X of the Board of Governors.

Section 3.16 PATRIOT ACT; FCPA .

(a) To the extent applicable, each of the Borrower and the other Loan Parties is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R. Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto and (ii) the PATRIOT Act. No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

(b) The use of the proceeds of the Loans and the Letters of Credit will not violate the Trading with the Enemy Act, as amended or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R. Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto.

(c) None of the Borrower or any other Loan Party is (i) a Person described or designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (ii) engages with any such Person in any dealings or transactions that violate U.S. law.

Section 3.17 Use of Proceeds . The proceeds of the Loans have been used and shall be used in accordance with Section 5.10.

Section 3.18 Security Interests . Each of the Security Documents creates, as security for the Secured Obligations purported to be secured thereby, a valid and enforceable (and, to the extent perfection thereof can be accomplished pursuant to the filings or other actions required by the Security Documents and such filings or other actions are required to have been made or taken, perfected) security interest in and Lien on all of the Collateral subject thereto, superior to and prior to the rights of all third Persons and subject to no other Liens (except that the Collateral may be subject to Liens permitted by Section 6.02), in favor of the Administrative Agent for the benefit of the Lenders. No filings or recordings are required in order to perfect the security interests created under any Security Document that are required by the Security Documents to be perfected except for filings or recordings which shall have been made, or for which satisfactory arrangements have been made or which are not yet required to have been made, upon or prior to the execution and delivery thereof.

Section 3.19 Insurance .

(a) The properties of the Loan Parties are insured with reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Loan Parties operate.

(b) All real property that constitutes Collateral and that is a “Flood Hazard Property” is covered by flood insurance with reputable insurance companies not Affiliates of the Borrower, in such amounts and with such deductibles as the Administrative Agent may reasonably request upon at least thirty (30) days prior written notice to the Borrower.


Section 3.20 No Default . No Default has occurred and is continuing.

Section 3.21 OFAC . No Loan Party (a) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (b) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner violative of Section 2, or (c) is a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.

Article IV

Conditions

Section 4.01 Effective Date . The obligations of the Lenders to make Loans and of each Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02):

(a) The Administrative Agent (or its counsel) shall have received from the Borrower either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement and (iii) a duly executed promissory note for any Lender requesting such a note pursuant to Section 2.09(e).

(b) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the Effective Date) of Wilson Sonsini Goodrich & Rosati, New York and California counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.

(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Effective Date, substantially in the form of Exhibit E-1 or such other form acceptable to the Administrative Agent with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.

(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors or equivalent governing body of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which it is a party, certified as of the Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, (iv) a written consent of the holders of a majority of the outstanding shares of Series D Preferred Stock in accordance with the Borrower’s Amended and Restated Articles of Incorporation dated June 27, 2013 approving and authorizing the incurrence of Indebtedness pursuant to the Loan Documents and (v) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.


(e) The Administrative Agent, the Lead Arrangers and the Lenders shall have received all fees and other amounts previously agreed in writing by the Lead Arrangers and the Borrower to be due and payable on or prior to the Effective Date (including, to the extent estimated or invoiced at least two Business Days prior to the Effective Date, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document), which amounts may be offset against the proceeds of the initial Loans made on the Effective Date.

(f) The Collateral and Guarantee Requirement shall have been satisfied; except as otherwise agreed in Section 5.13.

(g) Certificates of insurance in form and substance satisfactory to the Administrative Agent shall be delivered to the Administrative Agent evidencing the existence of insurance maintained by the Loan Parties pursuant to Section 5.07 and, if applicable, the Administrative Agent shall be designated as an additional insured (on behalf of itself and the Lenders) and loss payee as its interest may appear thereunder, or solely as the additional insured, as the case may be, thereunder.

(h) The Lead Arranger shall have received and shall be satisfied with (i) the Audited Financial Statements, (ii) the unaudited consolidated balance sheet of the Borrower as of December 31, 2012 and the related consolidated statements of earnings and cash flows of the Borrower for the Fiscal Year ended December 31, 2012 and (iii) the unaudited consolidated and combined balance sheet of the Borrower as at June 30, 2013 and the related consolidated statements of earnings and cash flows of the Borrower for the three-month period ended June 30, 2013.

(i) [Reserved]

(j) The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects) on and as of the Effective Date.

(k) The Lenders shall have received a certificate, substantially in the form of Exhibit E-2, from the chief financial officer or chief accounting officer or other officer with equivalent duties of the Borrower certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.

(l) The Administrative Agent and the Lead Arranger shall have received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 5 days prior to the Effective Date by the Administrative Agent or the Lead Arranger required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.

(m) Evidence satisfactory to the Administrative Agent that the Borrower shall have received gross cash proceeds of not less than $80,000,000 from the Equity Contribution.

(n) Substantially concurrently with the initial funding of the Loans on the Effective Date, all principal, premium, if any, interest, fees and other amounts outstanding under the Existing Debt shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof (which, in the case of the Bridge


Loan Note, such evidence shall include a satisfactory pay-off letter pursuant to which there is an agreement by Brocade to file an Acknowledgement of Satisfaction of Judgment with respect to the Specified Settlement within a reasonable time period). After giving effect to the Transactions, no Loan Party shall have outstanding any Indebtedness or Disqualified Equity Interests other than (i) the Loans and other extensions of credit under this Agreement and (ii) Indebtedness permitted under Section 6.01.

(o) All corporate and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement and the other Loan Documents to occur on or prior to the Effective Date shall be in form and substance reasonably satisfactory to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents and papers, including records of corporate proceedings, governmental approvals, good standing certificates and bring down telegrams or facsimiles, if any, which the Administrative Agent reasonably may have requested in connection therewith, such documents and papers where appropriate to be certified by proper corporate or governmental authorities, all in form and substance reasonably satisfactory to the Administrative Agent.

(p) The Lenders shall be satisfied that all requisite Governmental Authorities and third parties shall have approved or consented to the Transactions, and there shall be no governmental or judicial action, actual or threatened, that has or would have, singly or in the aggregate, a reasonable likelihood of restraining, preventing or imposing burdensome conditions on the Transactions or the other transactions contemplated hereby.

Section 4.02 Each Credit Event . The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to receipt of the request therefor in accordance herewith and to the satisfaction of the following conditions:

(a) The Administrative Agent shall have received a notice of such Borrowing as required by Sections 2.03 or 2.05, as applicable

(b) The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as the case may be; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of such credit extension or on such earlier date, as the case may be.

(c) At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as the case may be, no Default or Event of Default shall have occurred and be continuing, unless otherwise agreed by the Required Lenders.

Each Borrowing ( provided that a conversion or a continuation of a Borrowing shall not constitute a “Borrowing” for purposes of this Section) and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (a), (b) and (c) of this Section.


Article V

Affirmative Covenants

Until the Commitments shall have expired or been terminated, the principal of and interest on each Loan and all fees, expenses and other amounts (other than contingent indemnification obligations as to which no claim has been made) payable under any Loan Document shall have been paid in full and all Letters of Credit shall have expired or been terminated (or cash collateralized or backstopped pursuant to arrangements reasonably satisfactory to the relevant Issuing Bank) and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:

Section 5.01 Financial Statements and Other Information . The Borrower will furnish to the Administrative Agent (for distribution to each Lender through the Administrative Agent):

(a) on or before the date that is 90 days after the end of each Fiscal Year of the Borrower, an audited consolidated balance sheet and audited consolidated statements of operations and comprehensive income and cash flows of the Borrower and its Subsidiaries as of the end of and for such Fiscal Year, in each case with all consolidating information regarding the Borrower and its Subsidiaries required of a registrant under Regulation S-X, together with related notes thereto and customary management’s discussion and analysis describing results of operations, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by Deloitte or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception, or any exception as to the scope of such audit, in each case other than a qualification related solely to the scheduled or accelerated maturity of Loans and Commitments, as applicable), to the effect that such consolidated financial statements present fairly in all material respects the financial condition as of the end of and for such year and results of operations and cash flows of the Borrower and its Subsidiaries (as applicable) on a consolidated basis (as applicable) in accordance with GAAP consistently applied; provided , that for the Fiscal Year ending December 31, 2012, the Borrower will have until the date that is 90 days after the Effective Date to furnish the foregoing;

(b) with respect to each of the first three fiscal quarters of each Fiscal Year, on or before the date that is 45 days after the end of each such fiscal quarter, an unaudited consolidated balance sheet and unaudited consolidated statements of operations and comprehensive income and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the Fiscal Year, in each case with all consolidating information regarding the Borrower and its Subsidiaries required of a registrant under Regulation S-X, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year; all certified by a Financial Officer as presenting fairly in all material respects, as applicable, the financial condition as of the end of and for such fiscal quarter and such portion of the Fiscal Year and results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; together with customary management’s discussion and analysis describing results of operations;

(c) not later than five days after any delivery of financial statements under paragraph (a) or (b) above or a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculations demonstrating compliance with the covenants contained in Sections 6.10 and 6.11, if applicable;


(d) not later than 90 days after the commencement of each Fiscal Year of the Borrower, a detailed consolidated annual budget for the Borrower and its Subsidiaries for such Fiscal Year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such Fiscal Year and setting forth the material assumptions used for purposes of preparing such budget);

(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and registration statements (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) filed by the Borrower or any of its Subsidiaries with the SEC or with any national securities exchange, or distributed by the Borrower or any of its Subsidiaries to the holders of its Equity Interests generally, as the case may be; and

(f) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower and its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing.

Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 (including with respect to management’s discussion and analysis) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing the Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower (or any Parent Entity) filed with the SEC; provided that (i) to the extent such information relates to a Parent Entity, such information is accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, in each case other than a qualification related solely to the scheduled or accelerated maturity of Loans and Commitments.

Documents required to be delivered pursuant to Section 5.01(a), (b), (d) or (e) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)); or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions ( i.e. , soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.


The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arranger will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “ Platform ”) and (b) certain of the Lenders (each, a “ Public Lender ”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Lead Arranger, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws ( provided , however , that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Lead Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”

Section 5.02 Notices of Material Events . Promptly after any Responsible Officer of the Borrower obtains actual knowledge thereof and, if applicable, after notifying the appropriate Governmental Authority, the Borrower will furnish to the Administrative Agent (for distribution to each Lender through the Administrative Agent) written notice of the following:

(a) the occurrence of any Default;

(b) (i) the occurrence of any adverse development with respect to any litigation, action or proceeding that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, (ii) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against the Borrower and its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect or (iii) the receipt of a notice of an Environmental Liability that could reasonably be expected to result in a Material Adverse Effect; and

(c) the occurrence of any event that is not a matter of general public knowledge that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

Each notice delivered under this Section shall be accompanied by a written statement of a Responsible Officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

Section 5.03 Information Regarding Collateral .

(a) The Borrower will furnish to the Administrative Agent prompt (and in any event within 30 days or such longer period as reasonably agreed to by the Administrative Agent) written notice of any change (i) in any Loan Party’s legal name (as set forth in its certificate of organization or like document), (ii) in the jurisdiction of incorporation or


organization of any Loan Party or in the form of its organization or (iii) in any Loan Party’s organizational identification number.

(b) Not later than ten Business Days after delivery of financial statements pursuant to Section 5.01(a), the Borrower shall deliver to the Administrative Agent a certificate executed by a Responsible Officer of the Borrower (i) setting forth any updates to the information disclosed pursuant to the Perfection Certificate or confirming that there has been no change in such information since the date of the Perfection Certificate delivered on the Effective Date or the date of the most recent certificate delivered pursuant to this Section, (ii) identifying any Subsidiary of the Borrower that has become, or ceased to be, a Subsidiary during the most recently ended fiscal quarter and (iii) certifying that all notices required to be given prior to the date of such certificate by this Section 5.03 have been given.

Section 5.04 Existence; Conduct of Business . The Borrower will, and will cause each Loan Party to, do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect its legal existence and the rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation, amalgamation, liquidation or dissolution permitted under Section 6.03 or any Disposition permitted by Section 6.05.

Section 5.05 Payment of Taxes, etc . The Borrower will, and will cause each of its Subsidiaries to, pay its obligations in respect of Taxes before the same shall become delinquent or in default, except, in each case, to the extent (i) any such Tax is being contested in good faith by proper proceedings diligently conducted and for which adequate reserves have been set aside with respect thereto in accordance with GAAP or (ii) the failure to pay or discharge the same would not reasonably be expected to have a Material Adverse Effect.

Section 5.06 Maintenance of Properties . The Borrower will, and will cause each Loan Party to, keep and maintain all material property and equipment necessary to the conduct of its business in good working order, repair and condition, ordinary wear and tear, casualty and condemnation excepted.

Section 5.07 Insurance . The Loan Parties will maintain or cause to be maintained insurance with financially sound and responsible insurance companies with respect to their properties material to the business of the Loan Parties, and in any event with respect to each Mortgaged Property, against such casualties and contingencies and of such types and in such amounts with such deductibles as is comparable to that maintained by other companies of a similar size engaged in similar businesses in similar locations (which insurance shall include, in any event, with respect to each Mortgaged Property, flood insurance to the extent (including with respect to amounts) required in order to comply with law applicable to any Secured Party, if at any time the area in which any improvements located on any Mortgaged Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency) and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended from time to time). The Borrower shall provide notice thereof to the Administrative Agent within 30 days of any material change in such insurance. The Borrower will furnish to the Administrative Agent, upon written request from the Administrative Agent, information presented in reasonable detail as to the insurance so carried. Each such policy of insurance shall (i) in the case of general liability and product liability insurance, name the Administrative Agent, on behalf of the Lenders, as an additional insured thereunder as its interests may appear for and (ii) in the case of each casualty insurance policy covering Collateral, name the Administrative Agent, on behalf of the Lenders as the loss payee thereunder.


Section 5.08 Books and Records; Inspection and Audit Rights . The Borrower will, and will cause each Loan Party to, maintain proper books of record and account in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied shall be made of all material financial transactions and matters involving the assets and business of the Borrower and each Loan Party, as the case may be. The Borrower will, and will cause each Loan Party to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested; provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise visitation and inspection rights of the Administrative Agent and the Lenders under this Section 5.08 and the Administrative Agent shall not exercise such rights more often than two times during any calendar year absent the existence of an Event of Default and only one such time shall be at the Borrower’s expense; provided further that (a) when an Event of Default exists, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon reasonable advance notice and (b) the Administrative Agent and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Borrower’s independent public accountants. Notwithstanding anything to the contrary in this Section 5.08, none of the Borrower or any Loan Party shall be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by applicable law or contract.

Section 5.09 Compliance with Laws . (a) The Borrower will, and will cause each Loan Party to, comply with its Organizational Documents and all Requirements of Law with respect to it, its property and operations, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

(b) Without limitation of clause (a) above, the Borrower will, and will cause each of Loan Party to: (i) comply with all applicable Environmental Laws and environmental permits except, in each case, to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect; (ii) obtain and renew all environmental permits necessary for its operations and properties; and (iii) to the extent required under Environmental Laws, conduct any investigation, mitigation, study, sampling and testing, and undertake any clean-up, removal or remedial, corrective or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws, except, in the case of clauses (ii) and (iii), to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.

Section 5.10 Use of Proceeds and Letters of Credit . The proceeds of the Loans will be used to provide for the ongoing working capital requirements of the Borrower and its Subsidiaries and for general corporate purposes, including to finance Permitted Acquisitions and make payments of up to $35,000,000 in satisfaction of the Specified Settlement and the payment of the Transaction Costs. Letters of Credit will be used by the Borrower only for general corporate purposes of the Borrower and its Subsidiaries.

Section 5.11 Additional Subsidiaries; Acquisition of Real Property; Intellectual Property .

(a) If (i) any additional Subsidiary (other than an Excluded Subsidiary) of the Borrower is formed or acquired after the Effective Date or (ii) if any Subsidiary ceases to be


an Excluded Subsidiary, the Borrower will, within 30 days after such newly formed or acquired Subsidiary is formed or acquired or such Subsidiary ceases to be an Excluded Subsidiary, notify the Administrative Agent thereof (unless such Subsidiary is an Excluded Subsidiary), and will cause such Subsidiary (unless such Subsidiary is an Excluded Subsidiary) to satisfy the Collateral and Guarantee Requirement with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by any Loan Party within 30 days after such notice (or such longer period as the Administrative Agent shall reasonably agree and the Administrative Agent shall have received a completed Perfection Certificate with respect to such Subsidiary signed by a Responsible Officer, together with all attachments contemplated thereby). Notwithstanding anything contained in this Agreement (including this Section 5.11) or any other Loan Document to the contrary, (i) no more than 65% of the total combined voting power of all classes of Equity Interests entitled to vote in or of any Foreign Subsidiary (and 100% of the non-voting Equity Interests) shall be pledged or similarly hypothecated to secure any Loan Document Obligation herein, (ii) no Excluded Subsidiary shall guarantee or support any Loan Document Obligation herein (iii) no security or similar interest shall be granted in the assets of any Excluded Subsidiary, which security or similar guarantees or supports any Loan Document Obligation herein and (iv) none of Borrower or any of its Subsidiaries shall be required to provide any guarantee, pledge or asset support arrangement that would subject Borrower or any Subsidiary to any adverse Tax consequence due to the application of Section 956 of the Code.

(b) Within 30 days (or such longer period as the Administrative Agent may reasonably agree) after the Borrower identifies any new Subsidiary pursuant to Section 5.03(b), all actions (if any) required to be taken with respect to such Subsidiary in order to satisfy the Collateral and Guarantee Requirement shall have been taken with respect to such Subsidiary.

(c) Upon the acquisition of any real property by any Loan Party, if such real property shall not already be subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Secured Parties, the relevant Loan Party shall give notice thereof to the Administrative Agent and shall, if requested by the Administrative Agent or the Required Lenders, cause such real property (other than Excluded Assets) to be subjected to a Lien securing such Loan Party’s Loan Document Obligations and will take, or cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to satisfy the Collateral and Guarantee Requirement with respect to such property or interest and to grant and perfect or record such Lien in accordance with the Collateral and Guarantee Requirement within ninety (90) days after such request (or such longer period as the Administrative Agent may agree in its reasonable discretion).

(c) Concurrently with the delivery of each compliance certificate pursuant to Section 5.01(c) in respect of financial statements delivered pursuant to Section 5.01(a) execute and deliver to the Administrative Agent an appropriate Intellectual Property Security Agreement with respect to all Patents (as defined in the Collateral Agreement) and Trademarks (as defined in the Collateral Agreement) registered or pending with the United States Patent and Trademark Office and registered Copyrights (as defined in the Collateral Agreement) with the United States Copyright Office constituting After Acquired Intellectual Property (as defined in the Collateral Agreement) that is Material Intellectual Property owned by it or any Loan Party as of the last day of the period for which such Compliance Certificate is delivered, to the extent that such After Acquired Intellectual Property that is Material Intellectual Property is not covered by any previous Intellectual Property Security Agreement so signed and delivered by it or such Loan Party. In each case, the Borrower will, and will cause each Loan Party to, promptly cooperate as necessary to enable the Administrative Agent to make any required recordations with the US


Copyright Office or the US Patent and Trademark Office, as appropriate, with respect to such Material Intellectual Property.

Section 5.12 Further Assurances .

The Borrower will, and will cause each Loan Party to, execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents), that may be required under any applicable law or that the Administrative Agent or the Required Lenders may reasonably request, to grant, preserve, protect and perfect the validity and first priority of the security interests created or intended to be created by, and to the extent required under, the Security Documents, to cause the Collateral and Guarantee Requirement to be and remain satisfied, and to effectuate the transactions contemplated by the Loan Documents, all at the expense of the Loan Parties.

Section 5.13 Certain Post-Closing Obligations . (a) As promptly as practicable, and in any event within the time periods after the Effective Date specified in Schedule 5.13 or such later date as the Administrative Agent agrees to in writing, including to reasonably accommodate circumstances unforeseen on the Effective Date, the Borrower and each other Loan Party shall deliver the documents or take the actions specified on Schedule 5.13, in each case except to the extent otherwise agreed by the Administrative Agent pursuant to its authority as set forth in the definition of the term “Collateral and Guarantee Requirement”.

(b) As promptly as practicable after the filing date specified in the Bridge Loan Note pay-off letter pursuant to which Brocade shall file Acknowledgements of Satisfaction of Judgment with respect to the Specified Settlement, the Borrower shall deliver copies of such acknowledgements to the Administrative Agent along with copies of the order by the court regarding such Satisfaction of Judgment that shall have been entered with respect thereto.

Section 5.14 Payment of Obligations . The Borrower and each Loan Party shall pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of their material obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings diligently conducted and reserves in conformity with GAAP with respect thereto have been provided on the books of the Borrower or such Loan Party.

Section 5.15 [intentionally omitted] .

Section 5.16 Compliance with ERISA . The Borrower and each Loan Party shall and shall cause its ERISA Affiliates to maintain each Plan which is subject to or governed under ERISA, the Code or other federal or state law in compliance in all material respects with the applicable provisions of ERISA, except where noncompliance would not be reasonably likely to have a Material Adverse Effect or cause a Lien on the assets of the Borrower or any Loan Party.

Article VI

Negative Covenants

Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees, expenses and other amounts payable (other than contingent indemnification obligations as to which no claim has been made) under any Loan Document have been paid in full and all


Letters of Credit have expired or been terminated and all LC Disbursements shall have been reimbursed (or cash collateralized or backstopped pursuant to arrangements reasonably acceptable to the Issuing Bank), the Borrower covenants and agrees with the Lenders that:

Section 6.01 Indebtedness; Certain Equity Securities . The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:

(i) (A) Indebtedness of the Borrower and any of its Subsidiaries under the Loan Documents and (B) any Permitted Refinancing of any Indebtedness set forth in the immediately foregoing clause (A);

(ii) Indebtedness outstanding on the date hereof and listed on Schedule 6.01 to the Disclosure Letter and any Permitted Refinancing thereof;

(iii) Guarantees by the Borrower and its Subsidiaries in respect of Indebtedness of the Borrower or any of its Subsidiaries otherwise permitted hereunder; provided that such Guarantee is otherwise permitted by Section 6.04; provided further that (A) no Guarantee by any Subsidiary Loan Party of any Junior Financing shall be permitted unless such Subsidiary Loan Party shall have also provided a Guarantee of the Loan Document Obligations pursuant to the Guarantee Agreement and (B) if the Indebtedness being Guaranteed is subordinated to the Loan Document Obligations, such Guarantee shall be subordinated to the Guarantee of the Loan Document Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;

(iv) Indebtedness of the Borrower owing to any of its Subsidiaries or of any Subsidiary owing to any other Subsidiary or to the Borrower, to the extent permitted by Section 6.04; provided that (A) all such Indebtedness of any Loan Party owing to any Subsidiary that is not a Loan Party shall be subordinated to the Loan Document Obligations on terms (i) at least as favorable to the Lenders as those set forth in the form of intercompany note attached as Exhibit F or (ii) otherwise reasonably satisfactory to the Administrative Agent, and (B) all such Indebtedness owing by a Subsidiary that is not a Loan Party to any Loan Party in excess of $250,000 shall be evidenced by a note and pledged as Collateral for the Secured Obligations;

(v) (A) Indebtedness (including Capital Lease Obligations) of the Borrower or any of its Subsidiaries financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets; provided that such Indebtedness is incurred concurrently with or within 270 days after the applicable acquisition, construction, repair, replacement or improvement, and (B) any Permitted Refinancing of any Indebtedness set forth in the immediately preceding clause (A); provided further that the aggregate principal amount of Indebtedness that is outstanding in reliance on this clause (v) shall not, at any time outstanding, exceed $2,500,000;

(vi) Indebtedness in respect of Swap Agreements entered into in the ordinary course of business (and not for speculative purposes) in order to (A) effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any of its Subsidiaries or (B) hedge foreign currency or commodity supply transactions of the Borrower and its Subsidiaries;


(vii) Indebtedness of any Person that becomes a Subsidiary of the Borrower (or of any Person not previously a Subsidiary Guarantor that is merged, amalgamated or consolidated with or into the Borrower or a Subsidiary Guarantor) after the date hereof as a result of a Permitted Acquisition, or Indebtedness of any Person that is assumed by the Borrower or any of its Subsidiaries in connection with an acquisition of assets by the Borrower or such Subsidiary in a Permitted Acquisition, and Permitted Refinancings thereof; provided that (A) such Indebtedness is not incurred in contemplation of such Permitted Acquisition, (B)  provided further that the aggregate principal amount of Indebtedness that is outstanding in reliance on this clause (vii) shall not, at any time outstanding, exceed $5,000,000;

(viii) Indebtedness of the Borrower and any of its Subsidiaries consisting of notes or loans under credit agreements, indentures or other similar instruments or agreements and any Permitted Refinancing thereof; provided that (A) any issuer of such Indebtedness shall be the Borrower or a Subsidiary, (B) such Indebtedness is unsecured, (C) such Indebtedness does not mature prior to the date that is 91 days after the Maturity Date in effect at the time of incurrence thereof, (D) such Indebtedness has no mandatory (other than customary provisions relating to asset sales or a change of control, so long as the rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior payment in full in cash of the Obligations and the termination of the Commitments) or scheduled amortization or payments, repurchases or redemptions of principal in cash or Disqualified Equity Interests prior to the date that is 91 days after the Maturity Date in effect at the time of incurrence thereof, (E) immediately after giving effect thereto and the use of the proceeds thereof, (1) no Event of Default shall exist or result therefrom and (2) the Borrower and its Subsidiaries will be in Pro Forma Compliance with the covenants set forth in Sections 6.10 and 6.11 as of the last day of the most recently ended Test Period, (F) if such Indebtedness is subordinated, the Loan Document Obligations shall have been, and while the Loan Document Obligations remain outstanding, no other Indebtedness is or is permitted to be, designated as “Senior Indebtedness” or its equivalent in respect of such Indebtedness, and (G) such Indebtedness has terms and conditions (other than interest rate, redemption premiums and subordination terms), taken as a whole, that are not materially less favorable to the Borrower, its Subsidiaries and the Lenders as the terms and conditions of this Agreement; provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirements shall be conclusive unless the Administrative Agent provides notice to the Borrower of its objection during such five Business Day period; provided , further , that the aggregate principal amount of Indebtedness outstanding in reliance on this clause (viii) in respect of which the primary obligor or a guarantor is a Subsidiary that is not a Loan Party, together with the then outstanding principal amount of any Indebtedness incurred pursuant to clause (xiv) below, shall not exceed at any time outstanding, $2,500,000;

(ix) Indebtedness representing deferred compensation to employees of the Borrower and its Subsidiaries incurred in the ordinary course of business;

(x) Indebtedness consisting of unsecured (or secured only by the Equity Interests being purchased or redeemed) promissory notes issued by any Loan


Party to current or former officers, directors and employees or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity thereof permitted by Section 6.06(a);

(xi) Indebtedness constituting indemnification obligations or obligations in respect of purchase price or other similar adjustments incurred in a Permitted Acquisition, any other Investment or any Disposition, in each case permitted under this Agreement;

(xii) Indebtedness consisting of obligations under deferred consideration (earn-outs, indemnifications, incentive non-competes, milestone payments and other contingent obligations) or other similar arrangements incurred in connection with the Transactions or any Permitted Acquisition or other Investment permitted hereunder;

(xiii) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections, cash pooling, employee credit cards and similar arrangements, in each case, in connection with deposit accounts in the ordinary course of business;

(xiv) Indebtedness of the Foreign Subsidiaries; provided that the aggregate principal amount of Indebtedness outstanding in reliance on Section 6.01(viii) in respect of which the primary obligor or a guarantor is a Subsidiary that is not a Loan Party, together with any Indebtedness incurred pursuant to this clause (xiv) shall not exceed at any time outstanding, $2,500,000;

(xv) Indebtedness incurred by the Borrower or any of its Subsidiaries in respect of bankers’ acceptances or similar instruments (other than letters of credit) issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other reimbursement-type obligations (other than obligations in respect of letters of credit) regarding workers compensation claims; provided that the reimbursement obligations in respect thereof are reimbursed within 60 days following the date thereof;

(xvi) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Borrower or any of its Subsidiaries, in each case in the ordinary course of business or consistent with past practice;

(xvii) Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the face amount of such Letter of Credit;

(xviii) Indebtedness consisting of insurance premium financing and take or pay obligations contained in supply agreements in the ordinary course of business;

(xix) other Indebtedness of the Borrower and the Subsidiary Guarantors not to exceed $1,000,000 at any time outstanding; and


(xx) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xix) above.

Section 6.02 Liens . The Borrower will not, nor will it permit any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, except:

(i) Liens created under the Loan Documents;

(ii) Permitted Encumbrances;

(iii) Liens existing on the date hereof and set forth on Schedule 6.02 to the Disclosure Letter and any modifications, replacements, renewals or extensions thereof; provided that (A) such modified, replacement, renewal or extension Lien does not extend to any additional property other than (1) after-acquired property that is affixed or incorporated into the property covered by such Lien and (2) proceeds and products thereof, and (B) the obligations secured or benefited by such modified, replacement, renewal or extension Lien are permitted by Section 6.01;

(iv) Liens securing Indebtedness permitted under Section 6.01(v); provided that (A) such Liens attach concurrently with or within 270 days after the acquisition, repair, replacement, construction or improvement (as applicable) of the property subject to such Liens, (B) such Liens do not at any time encumber any property other than the property financed by such Indebtedness except for accessions to such property and the proceeds and the products thereof and (C) with respect to Capital Lease Obligations, such Liens do not at any time extend to or cover any assets (except for accessions to or proceeds of such assets) other than the assets subject to such Capital Lease Obligations; provided further that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;

(v) leases, licenses, subleases or sublicenses granted to others in the ordinary course of business that do not (A) interfere in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole, or (B) secure any Indebtedness for borrowed money (it being understood that the licenses granted pursuant to the Specified Settlement are permitted pursuant to this clause (v));

(vi) Liens (A) in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business or (B) on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods in the ordinary course of business;

(vii) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection;

(viii) Liens (A) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 6.04 to be applied against the purchase price for such Investment or otherwise in connection


with any escrow arrangements with respect to any such Investment or any Disposition permitted under Section 6.05 (including any letter of intent or purchase agreement with respect to such Investment or Disposition), or (B) consisting of an agreement to dispose of any property in a Disposition permitted under Section 6.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;

(ix) Liens on property of any Subsidiary that is not a Loan Party, which Liens secure Indebtedness of such Subsidiary permitted under Section 6.01;

(x) Liens granted by a Subsidiary that is not a Loan Party in favor of any Loan Party and Liens granted by a Loan Party in favor of any other Loan Party;

(xi) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Subsidiary, in each case after the date hereof (other than Liens on the Equity Interests of any Person that becomes a Subsidiary); provided that (A) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary, (B) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require or include, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (C) the Indebtedness secured thereby is permitted under Section 6.01(vii);

(xii) any interest, lien, or title of a lessor or sublessor under leases or subleases (other than leases constituting Capital Lease Obligations) entered into by any of the Borrower or any of its Subsidiaries in the ordinary course of business and covering the assets so leased;

(xiii) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods by any of the Borrower or any of its Subsidiaries in the ordinary course of business;

(xiv) Liens deemed to exist in connection with Investments in repurchase agreements under clause (e) of the definition of the term “Permitted Investments”;

(xv) Liens that are contractual rights of setoff (A) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the incurrence of Indebtedness for borrowed money or (B) relating to purchase orders and other agreements entered into with customers of the Borrower or any of its Subsidiaries in the ordinary course of business;

(xvi) ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Subsidiaries are located;

(xvii) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto and deposits made in the ordinary course of business to secure liability to insurance carriers;


(xviii) (A) zoning, building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business complies, and (B) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;

(xix) [intentionally omitted];

(xx) Liens on cash or Permitted Investments used to defease or to satisfy and discharge Indebtedness, provided that such defeasance or satisfaction and discharge is permitted hereunder;

(xxi) Liens on reasonable deposits and similar Liens attaching to commodities trading accounts and other brokerage accounts; and

(xxii) other Liens; provided that the aggregate principal amount of obligations secured by Liens existing in reliance on this clause (xxii) shall not exceed $500,000 at any time outstanding.

Notwithstanding anything in this Section 6.02 to the contrary, no Liens permitted to be incurred hereunder, other than Liens permitted pursuant to Sections 6.02(xi), (xvi) and (xviii) or clauses (a), (b), (e) and (f) of the definition of “Permitted Encumbrances,” shall encumber any of the real property owned by the Borrower or any of its Subsidiaries.

Section 6.03 Fundamental Changes; Sale-Leasebacks .

(a) the Borrower will not, nor will it permit any of its Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, or dispose of all or substantially all of the assets of the Borrower and its Subsidiaries, except that:

(i) any Subsidiary may merge with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) in the case of any Subsidiary of the Borrower, any one or more other Subsidiaries; provided that when any Subsidiary Loan Party is merging with another Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Subsidiary is otherwise permitted under Section 6.04;

(ii) (A) any Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (B) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders;

(iii) any Subsidiary of the Borrower may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Subsidiary or to the Borrower; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment must be a permitted Investment in a Subsidiary in accordance with Section 6.04 or (C) to the extent constituting a Disposition to a


Subsidiary that is not a Loan Party, such Disposition is for fair value and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Subsidiary that is not a Loan Party in accordance with Section 6.04;

(iv) the Borrower may merge, amalgamate or consolidate with any other Person; provided that (A) the Borrower shall be the continuing or surviving Person, (B) any Investment in connection therewith is permitted under Section 6.04 and (C) no Default or Event of Default shall have occurred and be continuing;

(v) any Subsidiary of the Borrower may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 6.04; provided that the continuing or surviving Person shall be a Subsidiary, which together with each of its Subsidiaries, shall have complied with the requirements of Sections 5.11 and 5.12 (or arrangements for the compliance with such requirements within 30 days (or by such later date reasonably satisfactory to the Administrative Agent) shall have been made) and if the other party to such transaction is not a Loan Party, no Default exists after giving effect to such transaction;

(vi) any Subsidiary of the Borrower may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 6.05; provided that if the other party to such transaction is not a Loan Party, no Default exists after giving effect to the transaction; and

(vii) the Borrower may merge with any Wholly Owned Subsidiary of the Borrower that is a corporation organized under the laws of Delaware for the purposes of reincorporating the Borrower under the laws of Delaware; provided that (A) the surviving corporation is a Delaware corporation, (B) any Investment in connection therewith is permitted under Section 6.04, (C) the Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower under the Loan Documents in a manner reasonably acceptable to the Administrative Agent and (D) no Default or Event of Default shall have occurred and be continuing.

(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and such Subsidiaries on the Effective Date and businesses reasonably related, ancillary thereto, complementary, synergistic or reasonable extensions thereof.

(c) The Borrower will not, and will not permit any of its Subsidiaries to, enter into any arrangement with any Person providing for the leasing by any Loan Party of real or personal property that has been or is to be sold or transferred by such Loan Party to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of such Loan Party, other than any such arrangement entered into in connection with the financing of the acquisition of such property with the proceeds of purchase money Indebtedness incurred as permitted by Section 6.01(v), any such arrangement involving the sale of property within 270 days after the purchase thereof if sold for consideration not less than the cost of the purchase thereof and the lease of which (if a Capitalized Lease) is permitted by Section 6.01(v).

Section 6.04 Investments, Loans, Advances, Guarantees and Acquisitions . The Borrower will not, nor will it permit any of its Subsidiaries to make or hold any Investment, except:


(a) Permitted Investments;

(b) loans or advances to officers, directors and employees of the Borrower and its Subsidiaries in an aggregate principal amount outstanding at any time not to exceed $500,000 for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes;

(c) Investments (i) by the Borrower or any of its Subsidiaries in any Loan Party (excluding any new Subsidiary that becomes a Loan Party pursuant to such Investment), (ii) by any Subsidiary that is not a Loan Party in any other Subsidiary that is also not a Loan Party, (iii) by the Borrower or any of its Subsidiaries (A) in any Subsidiary; provided that the aggregate amount of such Investments made by Loan Parties after the Effective Date in Subsidiaries that are not Loan Parties in reliance on this clause (iii)(A) (together with the amount of Investments made in Subsidiaries that are not Loan Parties pursuant to Sections 6.04(h) and 6.04(n)) shall not exceed the Non-Loan Party Investment Amount at the time of any such Investment, (B) in any Subsidiary that is not a Loan Party, constituting an exchange of Equity Interests of such Subsidiary for Indebtedness of such Subsidiary or (C) constituting Guarantees of Indebtedness or other monetary obligations of Subsidiaries that are not Loan Parties owing to any Loan Party, (iv) by the Borrower or any of its Subsidiaries in Subsidiaries that are not Loan Parties so long as such Investment is part of a series of simultaneous Investments that result in the proceeds of the initial Investment being invested in one or more Loan Parties and (v) by the Borrower or any of its Subsidiaries in any Subsidiary that is not a Loan Party, consisting of the contribution of Equity Interests of any other Subsidiary that is not a Loan Party so long as the Equity Interests of the transferee Subsidiary is pledged to secure the Secured Obligations;

(d) Investments consisting of extensions of trade credit in the ordinary course of business;

(e) Investments existing or contemplated on the date hereof and set forth on Schedule 6.04(e) to the Disclosure Letter and any modification, replacement, renewal, reinvestment or extension thereof; provided that the amount of the original Investment is not increased except by the terms of such Investment to the extent as set forth on Schedule 6.04(e) to the Disclosure Letter or as otherwise permitted by this Section 6.04;

(f) Investments in Swap Agreements permitted under Section 6.01(vi);

(g) promissory notes and other non-cash consideration received in connection with Dispositions permitted by Section 6.05;

(h) Permitted Acquisitions; provided that the aggregate amount of cash and non-cash consideration paid or provided by the Borrower or any other Loan Party after the Effective Date in reliance on this Section 6.04(h) (together with any Investments made in Subsidiaries that are not Loan Parties pursuant to Sections 6.04(c)(iii)(A) and 6.04(n)) for Permitted Acquisitions (including the aggregate principal amount of all Indebtedness assumed in connection with Permitted Acquisitions) for any Subsidiary that shall not be or, after giving effect to such Permitted Acquisition, shall not become a Loan Party, shall not exceed the Non-Loan Party Investment Amount at such time;

(i) extensions of credit and guarantees permitted by Section 6.01 and Restricted Payments permitted by Section 6.06;


(j) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;

(k) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers in the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment in the ordinary course of business;

(l) advances of payroll payments to employees in the ordinary course of business;

(m) Investments of a Subsidiary acquired after the Effective Date or of a Person merged, amalgamated or consolidated with any Subsidiary in accordance with this Section and Section 6.03 after the Effective Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;

(n) acquisitions of, investments in, and loans and advances to, joint ventures and other Persons by the Borrower and its Subsidiaries in lines of business which, in the good faith judgment of the Borrower, is reasonably related to, or is a reasonable extension of, that of the Borrower and its Subsidiaries, so long as the aggregate amount invested, loaned or advanced pursuant to this Section 6.04(n) (determined without regard to any write-downs or write-offs of such investments, loans or advances), together with any Investments made in Subsidiaries that are not Loan Parties pursuant to Sections 6.04(c)(iii)(A) and 6.04(h), does not exceed the Non-Loan Party Investment Amount at such time;

(o) the licensing, sublicensing or contribution of rights in any Intellectual Property pursuant to joint marketing, distribution, or development arrangements with Persons other than the Borrower and its Subsidiaries in the ordinary course of business;

(p) Investments to the extent that payment for such Investments is made solely by the issuance of Equity Interests (other than Disqualified Equity Interests) of the Borrower (or any Parent Entity) to the seller of such Investments;

(q) any Investments in a Subsidiary that is not a Loan Party or in a joint venture, in each case, to the extent such Investment is contemporaneously repaid in full with a dividend or other distribution from such Subsidiary or joint venture;

(r) the forgiveness or conversion to Equity Interests of any Indebtedness owed by a Loan Party and permitted by Section 6.01;

(s) Subsidiaries of Borrower may be established or created if the Borrower and such Subsidiary comply with the requirements of Section 5.11, if applicable; provided that, in each case, to the extent such new Subsidiary is created solely for the purpose of consummating an acquisition permitted by this Section 6.04, and such new Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such transactions, such new Subsidiary shall not be required to take the actions set forth in Section 5.11, as applicable, until the respective acquisition is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof);


(t) to the extent that they constitute Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business;

(u) other Investments by the Borrower or any of its Subsidiaries not to exceed, in the aggregate, at any time outstanding, $2,500,000; and

(v) Guarantees of leases (other than Capital Lease Obligations) and other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business.

Section 6.05 Asset Sales . The Borrower will not, nor will it permit any of its Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Borrower permit any of its Subsidiaries to issue any additional Equity Interest in such Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or its Subsidiaries in compliance with Section 6.04(c)) (each, a “ Disposition ”), except:

(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries in each case in the ordinary course of business;

(b) Dispositions of inventory and immaterial assets in the ordinary course of business;

(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;

(d) Dispositions of property to the Borrower or its Subsidiaries; provided that (i) if the transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party or such Disposition must otherwise be permitted pursuant to Section 6.05(d)(iii), (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 6.04 and any Indebtedness corresponding to such Investment must be permitted by Section 6.01 and (iii) to the extent constituting a Disposition to a Subsidiary that is not a Loan Party, such Disposition is for fair value and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Subsidiary that is not a Loan Party in accordance with Section 6.04;

(e) Dispositions permitted by Section 6.03 (other than Section 6.03(a)(vi)), Investments permitted by Section 6.04, Restricted Payments permitted by Section 6.06 and Liens permitted by Section 6.02;

(f) Dispositions of Permitted Investments;

(g) Dispositions of accounts receivable in connection with the collection or compromise thereof (other than in connection with financing transactions);

(h) leases, subleases, licenses or sublicenses of property, in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower and its Subsidiaries (it being understood that the licenses granted pursuant to the Specified Settlement are permitted pursuant to this clause (h)); provided , that any such leases, subleases,


licenses or sublicenses affecting any Mortgaged Property shall be subordinate to the lien of the applicable Mortgage pursuant to documentation reasonably acceptable to the Administrative Agent;

(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;

(j) Dispositions of property to Persons other than Subsidiaries (including the sale or issuance of Equity Interests of a Subsidiary) not otherwise permitted under this Section 6.05; provided that (i) no Event of Default shall exist at the time of, or would result from, such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default existed or would have resulted from such Disposition), (ii) the aggregate fair market value of all property disposed of in reliance on this clause (j) shall not exceed $250,000 in any Fiscal Year; provided that the limitations set forth in this clause (ii) shall not apply to any Disposition of assets acquired pursuant to a Permitted Acquisition, which assets are not used or useful to the core or principal business of the Borrower and its Subsidiaries, (iii) all dispositions made pursuant to this clause (j) from the date of this Agreement through and including the Maturity Date shall not, in the aggregate, exceed $1,000,000 and (iv) with respect to any Disposition pursuant to this clause (j), the Borrower or a Subsidiary shall receive not less than 75% of such consideration in the form of cash; provided , however , that for the purposes of this clause (j), (A) any liabilities (as shown on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto) of the Borrower or such Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, and (B) any securities received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash; and provided further that Dispositions of the Equity Interests in any Subsidiary shall be prohibited unless it is for all of the outstanding Equity Interests of such Subsidiary owned (directly or indirectly) by the Borrower; and

(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(l) the lapse or abandonment of any Intellectual Property or registrations (or applications for registration) with respect thereto in the ordinary course of business which in the reasonable good faith judgment of the Borrower are no longer used or useful in its business (it being understood and agreed that no Material Intellectual Property may be Disposed of in reliance on this clause (l));

(m) the unwinding of Swap Agreements permitted hereunder pursuant to their terms;

(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;


(o) any Disposition of any asset between or among the Borrower and its Subsidiaries as a substantially concurrent interim Disposition in connection with a Disposition otherwise permitted pursuant to this Section 6.05; and

(p) the transfer for fair value of property (including Equity Interests of Subsidiaries) to another Person in connection with a joint venture arrangement with respect to the transferred property, provided that such transfer is permitted under and subject to the limitations set forth in Section 6.04(n).

provided that any Disposition of any property pursuant to this Section 6.05 (except pursuant to Sections 6.05(a), (e), (g), (i), (l), (o) and (p) and except for Dispositions by a Loan Party to another Loan Party), shall be for no less than the fair market value of such property at the time of such Disposition.

Section 6.06 Restricted Payments; Certain Payments of Indebtedness .

(a) The Borrower will not, nor will it permit any of its Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, except:

(i) each Subsidiary may make Restricted Payments to the Borrower or any other Subsidiary; provided that if such Subsidiary is a Loan Party, then it can only make a Restricted Payment pursuant to this Section 6.06(a)(i) to another Loan Party;

(ii) the Borrower and each of its Subsidiaries may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests of such Person; provided that in the case of any such Restricted Payment by a Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower, any Subsidiary and to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;

(iii) the Borrower and each of its Subsidiaries may (A) repurchase for fair value Equity Interests held by former directors, officers, employees and consultants; and (B) repurchase Equity Interests deemed to occur upon a cashless exercise of options or warrants;

(iv) the Borrower and each of its Subsidiaries may make Restricted Payments in cash to the Borrower or any of its Subsidiaries:

(1) the proceeds of which will be used to pay the Tax liability to the relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns attributable to the income of the Borrower and/or any Subsidiary; provided that Restricted Payments made pursuant to this clause (a)(iv)(1) shall not exceed the Tax liability that the Borrower and/or the relevant Subsidiaries (as applicable) would have incurred were such Taxes determined as if such entity(ies) were a stand-alone taxpayer or a stand-alone group;

(2) the proceeds of which shall be used to pay (1) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses) that are reasonable and customary and incurred in the ordinary course of business, and customary indemnification claims made by directors or officers of the Borrower (or any Parent Entity thereof), in each


case to the extent attributable to the ownership or operations of the Borrower and its Subsidiaries, (2) fees and expenses (x) due and payable by any of the Subsidiaries and (y) otherwise permitted to be paid by such Subsidiary under this Agreement and (3) amounts due and payable pursuant to Section 6.07(v);

(3) the proceeds of which shall be used to pay franchise and other fees and expenses required to maintain its corporate or legal existence;

(4) the proceeds of which shall be used to make Restricted Payments permitted by Section 6.06(a)(iii);

(5) the proceeds of which shall be used to make payments permitted by clause (b)(i) of this Section 6.06;

(6) the proceeds of which are applied to the purchase or other acquisition of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all the Equity Interests in a Person, provided that such purchase or other acquisition would have constituted a “Permitted Acquisition” permitted to be made pursuant to Section 6.04; provided , further , that (A) such Restricted Payment shall be made concurrently with the closing of such purchase or other acquisition, (B) the recipient of such Restricted Payment shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or one of its Subsidiaries or (2) the merger (to the extent permitted in Section 6.03) of the Person formed or acquired into the Borrower or one of its Subsidiaries in order to consummate such purchase or other acquisition and (C) such Investment shall be deemed to be made by the Borrower or such Subsidiary pursuant to Section 6.04(h); and

(7) the proceeds of which shall be used to pay fees and expenses related to any unsuccessful debt or equity offering or proposed Permitted Acquisition, other Investment or Disposition; and

(v) the Borrower may make Restricted Payments to the extent of the Net Proceeds received by the Borrower from any issuance of Equity Interests (other than Disqualified Equity Interests) of the Borrower, so long as such Restricted Payment is made within 90 days of the receipt of such Net Proceeds and, with respect to any such Restricted Payments, no Event of Default shall have occurred and be continuing or would result therefrom;

(vi) to the extent constituting Restricted Payments, the Borrower and its Subsidiaries may enter into transactions expressly permitted by Sections 6.03 and 6.04;

(vii) the Borrower or any of its Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition, (ii) effect non-cash conversions of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and (iii) make Restricted Payments in connection with the retention of Equity Interests in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;


(viii) Restricted Payments in order to effectuate payments that at such time are permitted to be made pursuant to Section 6.07(iii), (v), (vi) and (vii);

(ix) the payment of dividends and distributions within sixty (60) days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 6.06; and

(x) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions not materially less favorable to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby.

(b) The Borrower will not, nor will it permit any other Subsidiary to, make or pay, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior Financing, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Financing, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:

(i) payment of regularly scheduled or required interest and principal payments as, in the form of payment and when due in respect of any Indebtedness to the extent such payments in respect of any Junior Financing are permitted by the subordination provisions thereof;

(ii) refinancings, refundings, renewals, modifications or exchanges of Indebtedness to the extent permitted by Section 6.01; and

(iii) the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of the Borrower or any of its direct or indirect parent companies and the payment of cash in lieu of the issuance of fractional shares in connection with such conversion;

Section 6.07 Transactions with Affiliates . The Borrower will not, nor will it permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (i) transactions with the Borrower or any Loan Party (or an entity that becomes a Loan Party as a result of the transaction); (ii) on terms substantially as favorable to the Borrower or such Subsidiary as would be obtainable by such Person at the time in a comparable arm’s-length transaction with a Person other than an Affiliate; (iii) the payment of fees and expenses related to the Transactions; (iv) issuances of Equity Interests (and options and warrants therefor) of the Borrower to the extent otherwise permitted by this Agreement; (v) employment, compensation and severance arrangements between the Borrower and its Subsidiaries and their respective officers, directors, consultants and employees in the ordinary course of business or otherwise in connection with the Transactions (including loans and advances pursuant to Sections 6.04(b) and 6.04(l)); (vi) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, directors, officers and employees of the Borrower and its Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower and its Subsidiaries; (vii) transactions pursuant to permitted agreements in existence or contemplated on the Effective Date and set forth on Schedule 6.07 to the Disclosure Letter or any amendment thereto to the extent such an amendment is not


adverse to the Lenders in any material respect; (viii) Restricted Payments permitted under Section 6.06; (ix) Investments in the Borrower’s Subsidiaries and joint ventures (to the extent any such Subsidiary is an Excluded Subsidiary or any such joint venture is only an Affiliate as a result of Investments by the Borrower and its Subsidiaries in such Subsidiary or joint venture) to the extent otherwise permitted under Section 6.04; and (x) transactions between the Borrower or any of its Subsidiaries and any Person that is an Affiliate solely due to the fact that a director of such Person is also a director of the Borrower, provided , that such director abstains from voting as a director of the Borrower on any matter involving such other Person.

Section 6.08 Restrictive Agreements . The Borrower will not, nor will it permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower and its Subsidiary Guarantors to create, incur or permit to exist any Lien upon any of its property or assets to secure the Secured Obligations or (b) the ability of any Subsidiary that is not a Loan Party to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to any Subsidiary or to Guarantee Indebtedness of any Subsidiary; provided that the foregoing clauses (a) and (b) shall not apply to any such restrictions that (i)(x) exist on the date hereof and (to the extent not otherwise permitted by this Section 6.08) are listed on Schedule 6.08 to the Disclosure Letter or by any Loan Document and (y) any renewal or extension of a restriction permitted by clause (i)(x) or any agreement evidencing such restriction so long as such renewal or extension does not expand the scope of such restrictions, taken as a whole, in any material respect, (ii)(x) are binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary, so long as such restrictions were not entered into solely in contemplation of such Person becoming a Subsidiary and (y) any renewal or extension of a restriction permitted by clause (ii)(x) or any agreement evidencing such restriction so long as such renewal or extension does not expand the scope of such restrictions, taken as a whole, in any material respect, (iii) represent Indebtedness of a Subsidiary that is not a Loan Party that is permitted by Section 6.01, provided that such restrictions will not materially affect in an adverse manner the Borrower’s ability to pay the Loan Document Obligations as they become due, (iv) are customary restrictions that arise in connection with any Disposition permitted by Section 6.05 applicable pending such Disposition solely to the assets subject to such Disposition, (v) are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 6.04, (vi) are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 6.01 but solely to the extent any negative pledge relates to the property financed by or securing such Indebtedness (and excluding in any event any Indebtedness constituting any Junior Financing), (vii) are imposed by Requirements of Law, (viii) are customary restrictions contained in leases, subleases, or licenses otherwise permitted hereby so long as such restrictions relate only to the assets subject thereto, (ix) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower and its Subsidiaries, (xi) are customary provisions restricting assignment of any license, lease or other agreement entered into in the ordinary course of business and otherwise permitted hereunder, (xii) are restrictions on cash (or Permitted Investments) or deposits imposed by customers under contracts entered into in the ordinary course of business (or otherwise constituting Permitted Encumbrances on such cash or Permitted Investments or deposits); (xiii) are customary net worth provisions contained in real property leases or licenses of intellectual property entered into by the Borrower or any of its Subsidiaries, so long as the Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the Loan Parties and their subsidiaries to meet their ongoing obligations; (xiv) are contained in the documentation governing the Series D Preferred Stock; or (xv) customary restrictions and conditions contained in asset sale agreements, purchase agreements, acquisition agreements (including by way of merger, acquisition or consolidation) entered into by Borrower or any Subsidiary in connection with transactions permitted under this Agreement and solely to the extent in effect pending the consummation of such transaction and so long as such restrictions relate only to the assets subject thereto.


Section 6.09 Amendment of Junior Financing, Equity Contribution and Organizational Documents . The Borrower will not, nor will it permit any of its Subsidiaries to, amend, modify, waive, terminate or release the documentation governing any Junior Financing, the Equity Contribution and the terms of any Equity Interests issued thereunder or the terms of the documentation governing any other issuance of Series D Preferred Stock, or any Organizational Document, in each case if the effect of such amendment, modification, waiver, termination or release is materially adverse to the Lenders.

Section 6.10 Total Leverage Ratio . The Borrower will not permit the Total Leverage Ratio, as of the last day of any fiscal quarter set forth below, to exceed the ratio set forth below opposite such fiscal quarter:

 

Fiscal Quarter Ending

   Total Leverage Ratio

September 30, 2013

   3.00 to 1.00

December 31, 2013

   3.00 to 1.00

March 31, 2014

   2.75 to 1.00

June 30, 2014

   2.50 to 1.00

September 30, 2014 through the Maturity Date

   2.25 to 1.00

Section 6.11 Minimum Liquidity . The Borrower will not permit the Liquidity of the Loan Parties taken as a whole, as of the last day of any fiscal quarter of Borrower, to be less than $25,000,000; provided , that at least $10,000,000 of such minimum Liquidity amount shall be comprised of Unrestricted Cash. Until the first anniversary of the Effective Date and solely with respect to the fiscal quarter being tested, the Borrower shall be permitted to include accounts receivable in an amount up to $5,000,000 that are payable from customers and have been collected within the succeeding five (5) Business Days of such fiscal quarter end in the calculation of Liquidity; provided , that there shall be no more than two consecutive fiscal quarters where the Borrower shall include such accounts receivable in its calculation of Liquidity.

Section 6.12 Changes in Fiscal Periods . The Borrower will not make any change in Fiscal Year; provided , however , that the Borrower may, upon written notice to the Administrative Agent, change its Fiscal Year to any other Fiscal Year reasonably acceptable to the Administrative Agent, in which case, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary to reflect such change in Fiscal Year.

Article VII

Events of Default

Section 7.01 Events of Default . If any of the following events (any such event, an “ Event of Default ”) shall occur:

(a) any Loan Party shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become


due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;

(b) any Loan Party shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in paragraph (a) of this Section) payable under any Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;

(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any of its Subsidiaries in any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect or misleading in any material respect when made or deemed made;

(d) the Borrower or any of its Subsidiaries shall fail to observe or perform any covenant, condition or agreement contained in Sections 5.01, 5.02, 5.04 (with respect to the existence of the Borrower), 5.08, 5.10, 5.11 or 5.15 or in Article VI; provided that an Event of Default that results from a failure of the Borrower to comply with Sections 6.10 and 6.11 is subject to cure as provided in Section 7.02, and to the extent the Borrower is not disqualified from exercising its right to make a Specified Equity Contribution under Section 7.02, an Event of Default shall not occur until the expiration of the Equity Cure Period;

(e) the Borrower or any of its Subsidiaries shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this Section), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent or the Required Lenders to the Borrower;

(f) the Borrower or any Loan Party shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any applicable grace period);

(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, provided that this paragraph (g) shall not apply to (i) secured Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under this Agreement) or (ii) termination events or similar events occurring under any Swap Agreement that constitutes Material Indebtedness (it being understood that paragraph (f) of this Section will apply to any failure to make any payment required as a result of any such termination or similar event);

(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) the winding-up, liquidation, court protection, reorganization or other relief in respect the Borrower, any Parent Entity, or any Subsidiary of the Borrower or its debts, or of a material part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, examiner, sequestrator, conservator or similar official for the Borrower or any of its


Subsidiaries or for a material part of its assets, and, in any such case, such proceeding or petition shall continue undismissed or unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;

(i) the Borrower, any Parent Entity or any of its Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, court protection, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in paragraph (h) of this Section, (iii) apply for or consent to the appointment of a receiver, trustee, examiner, custodian, sequestrator, conservator or similar official for the Borrower or any of its Subsidiaries or any of them, or for a material part of their respective assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due, (vii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the assets of any Loan Party and is not released, vacated or fully bonded within sixty (60) days after its issue or levy, or (viii) take any action for the purpose of effecting any of the foregoing;

(j) One or more enforceable judgments for the payment of money in an aggregate amount in excess of $5,000,000 (to the extent not covered by independent third-party insurance or captive insurance as to which the insurer has been notified of such judgment or order and has not denied coverage) shall be rendered against the Borrower or any of its Subsidiaries or any Parent Entity or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any judgment creditor shall legally attach or levy upon assets of such Loan Party that are material to the businesses and operations of the Borrower and its Subsidiaries or such Parent Entity, taken as a whole, to enforce any such judgment;

(k) an ERISA Event occurs that has resulted or could reasonably be expected to result in liability of a Loan Party in an aggregate amount that could reasonably be expected to result in a Material Adverse Effect, or (ii) a Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount that could reasonably be expected to result in a Material Adverse Effect;

(l) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any material portion of the Collateral, with the priority required by the applicable Security Document, except (i) as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents, (ii) as a result of the Administrative Agent’s failure to (A) maintain possession of any stock certificates, promissory notes or other instruments delivered to it under the Security Documents or (B) file Uniform Commercial Code continuation statements or (iii) as to Collateral consisting of real property to the extent that such losses are covered by a lender’s title insurance policy and the related insurer shall not have denied or disclaimed in writing that such losses are covered by such title insurance company;

(m) any material provision of any Loan Document or any Guarantee of the Loan Document Obligations shall for any reason be asserted by any Loan Party not to be a legal, valid and binding obligation of any Loan Party thereto other than as expressly permitted hereunder or thereunder; or any Loan Party denies in writing that it has any further liability or


obligation under any Loan Document other than as expressly permitted hereunder or thereunder or purports in writing to revoke or rescind any Loan Document;

(n) any material provision of any Loan Document or any Guarantee of the Loan Document Obligations by any Loan Party pursuant to the Guarantee Agreement shall cease to be in full force and effect (in each case, other than in accordance with the terms of the Loan Documents);

(o) any of the Loan Document Obligations for any reason shall cease to be “Senior Indebtedness” (or any comparable term) under, and as defined in, any documentation relating to any subordinated Junior Financing, or the subordination provisions set forth in any documentation relating to Junior Financing shall cease to be effective or cease to be legally valid, binding and enforceable against the holders of any Junior Financing, or in each case any Loan Party shall assert any of the foregoing;

(p) a Change in Control shall occur;

(q) an injunction shall be rendered against the Borrower or any of its Subsidiaries or any Parent Entity or any combination thereof enjoining the use of any Intellectual Property that could reasonably be expected to result in a Material Adverse Effect; or

(r) the Borrower shall fail to observe or perform any covenant, condition or agreement in any document governing the Specified Settlement that could reasonably be expected to result in a Material Adverse Effect;

then, and in every such event (other than an event with respect to the Borrower described in paragraph (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, (iii) require that the Borrower cash collateralize the outstanding amount of LC Exposure in an amount equal to 103% of the outstanding amount thereof and (iv) exercise any and all rights and remedies available to it under the Loan Documents and applicable law; and in case of any event with respect to the Borrower described in paragraph (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, and the obligation of the Borrower to cash collateralize the LC Exposure as aforesaid shall automatically become effective, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any Loan Document to the contrary notwithstanding.

Section 7.02 Borrower’s Right to Cure . (a) Solely for purposes of determining compliance with the financial covenants in Sections 6.10 and 6.11 on or prior to the day that is ten Business Days after the day on which financial statements are required to be delivered pursuant to Section 5.01 for any fiscal period (the “ Equity Cure Period ”), the existing holders of Equity Interests of the Borrower shall have the right to make an equity investment (which equity shall be common equity or Qualified Equity Interests) in the Borrower in cash, on or prior to the expiration of the Equity Cure Period


for such fiscal quarter, and such cash will, if so designated by the Borrower, be included in the calculation of Consolidated EBITDA and Unrestricted Cash for the purposes of determining compliance with financial covenants at the end of such fiscal quarter and, as applicable, the subsequent three fiscal quarters (any such equity contribution so included in the calculation of Consolidated EBITDA and/or Unrestricted Cash, a “ Specified Equity Contribution ”); provided that (i) there shall be no more than three Specified Equity Contributions made during the term of this Agreement, (ii) there shall be no more than two Specified Equity Contributions made during any consecutive four-fiscal-quarter period and there shall be no consecutive fiscal quarters where there are Specified Equity Contributions, (iii) the amount of any Specified Equity Contribution shall be no greater than the amount required to cause the Borrower to be in compliance with the financial covenants set forth in Sections 6.10 and 6.11 and (iv) all Specified Equity Contributions shall be disregarded for all other purposes of this Agreement, including, determining any baskets with respect to the covenants contained in Article VI (provided, that any repayment or prepayment of Loans with the proceeds from any Specified Equity Contribution shall not be given effect for purposes of calculating the Total Leverage Ratio for the applicable test period ending as of the last day of the fiscal quarter that required such Specified Equity Contribution but any such repayment or prepayment of Loans with the proceeds from any Specified Equity Contribution shall be given effect for purposes of calculating the Total Leverage Ratio for subsequent test periods).

(b) Upon receipt by the Administrative Agent of a Notice of Intent to Cure prior to the last day of the Equity Cure Period, neither the Administrative Agent nor any Lender shall exercise any rights or remedies under Section 7.01 (or any rights and remedies under any other Loan Document that are available during the continuance of an Event of Default) on the basis of any failure to comply with any of Sections 6.10 and 6.11 until the expiration of the Equity Cure Period.

Article VIII

Administrative Agent

Section 8.01 Appointment and Authority .

(a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints Royal Bank of Canada to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and the Borrower shall not have rights as a third party beneficiary of, or any obligations under, any of such provisions except for its consent rights set forth in Section 8.06.

(b) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders and the Issuing Banks hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and Issuing Bank for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 8.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03 as


though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.

Section 8.02 Rights as a Lender . The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

Section 8.03 Exculpatory Provisions . The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent:

(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law;

(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity;

(d) shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 9.02 and in the last paragraph of Section 7.01) or (ii) in the absence of its own gross negligence or willful misconduct; provided that the Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or an Issuing Bank; and

(e) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of


any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

Section 8.04 Reliance by Administrative Agent . The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

Section 8.05 Delegation of Duties . The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

Section 8.06 Resignation of Administrative Agent . The Administrative Agent may resign at any time upon 30 days’ notice to the Lenders, the Issuing Banks and the Borrower, subject to the appointment of a successor administrative agent in accordance with this Section 8.06. If the Administrative Agent (or an Affiliate thereof) becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower or the Required Lenders upon 10 days’ notice to the Administrative Agent, subject to the appointment of a successor administrative agent in accordance with this Section 8.06. Upon receipt of any such notice of resignation or upon any such removal, the Required Lenders shall have the right, with the Borrower’s consent (such consent not to be unreasonably withheld or delayed) ( provided that no consent of the Borrower shall be required if an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be an Approved Bank with an office in the United States, or any Affiliate of any such Approved Bank; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Banks under any of the Loan Documents, the retiring Administrative Agent may in its discretion continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or


through the Administrative Agent shall instead be made by or to each Lender and the Issuing Banks directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.

Section 8.07 Non-Reliance on Administrative Agent and Other Lenders . Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

Section 8.08 No Other Duties, Etc . Anything herein to the contrary notwithstanding, neither the Lead Arranger nor any person named on the cover page hereof as a Co-Documentation Agent, Bookrunner or Syndication Agent shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Bank hereunder.

Section 8.09 Administrative Agent May File Proofs of Claim . In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or outstanding Letter of Credit shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letters of Credit outstanding and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Banks and the Administrative Agent under Sections 2.12 and 9.03) allowed in such judicial proceeding; and

(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments


directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.12 and 9.03.

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or Issuing Bank to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank or in any such proceeding.

Section 8.10 No Waiver; Cumulative Remedies; Enforcement . No failure by any Lender, any Issuing Bank or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Article VII for the benefit of all the Lenders and the Issuing Banks; provided , however , that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the Issuing Banks from exercising the rights and remedies that inure to their benefit hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 9.08 (subject to the terms of Section 2.18), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided , further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Article VII and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.18, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

Section 8.11 Withholding Taxes . To the extent required by any applicable law, the Administrative Agent may deduct or withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the IRS or any other authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective, or for any other reason), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrower pursuant to Section 2.16 to the extent the Borrower is required to do so pursuant to such Section) fully for all amounts paid, directly or indirectly, by the Administrative Agent as Taxes or otherwise, together with all expenses incurred, including reasonable legal expenses and any other out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant


Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Article VIII. The agreements in this Article VIII shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of this Agreement and the repayment, satisfaction or discharge of all other obligations.

Section 8.12 Lender . For the avoidance of doubt, the term “Lender” in this Article VIII shall include each Issuing Bank.

Article IX

Miscellaneous

Section 9.01 Notices .

(a) Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax or other electronic transmission, as follows:

(i) if to the Borrower, the Administrative Agent, or Royal Bank of Canada, in its capacity as Issuing Bank, to the address, fax number, e-mail address or telephone number specified for such Person on Schedule 9.01; and

(ii) if to any other Lender or Issuing Bank, to it at its address (or fax number, telephone number or e-mail address) set forth in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).

Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).

(b) Electronic Communications . Notices and other communications to the Lenders and Issuing Banks hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures reasonably approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or Issuing Bank pursuant to Article II if such Lender or Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or


communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

(c) The Platform . THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided , however , that in no event shall any Agent Party have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

(d) Change of Address, Etc . Each of the Borrower, the Administrative Agent and each Issuing Bank may change its address, electronic mail address, fax or telephone number for notices and other communications or website hereunder by notice to the other parties hereto. Each other Lender may change its address, fax or telephone number for notices and other communications hereunder by notice to the Borrower and the Administrative Agent. In addition, each Lender and each Issuing Bank agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, fax number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.

(e) Reliance by Administrative Agent, Issuing Bank and Lenders . The Administrative Agent, the Issuing Banks and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Issuing Bank, each Lender and the Related Parties from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross negligence or willful misconduct as determined in a final and non-appealable judgment by a court of competent jurisdiction. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent and each of the parties hereto hereby consents to such recording.

Section 9.02 Waivers; Amendments .


(a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power under this Agreement or any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.

(b) Neither this Agreement, any Loan Document nor any provision hereof or thereof may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders, provided that no such agreement shall

(i) increase the Commitment of any Lender without the written consent of such Lender (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender);

(ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby (it being understood that any change to the definition of Total Leverage Ratio or in the component definitions thereof shall not constitute a reduction of interest or fees), provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay default interest pursuant to Section 2.12(c);

(iii) postpone the reimbursement date with respect to any LC Disbursement, or any date for the payment of principal, any interest or fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby;

(iv) (A) change Sections 2.07(a), 2.08(c), 2.10(c), 2.17(b) or 2.17(c) hereof in a manner that would alter the pro rata sharing of payments required thereby, or (B) change Section 4.02 of the Collateral Agreement in a manner that would alter the manner in which payments or prepayments of principal, interest or other amounts hereunder shall be applied as among the Lenders or Types of Loans, in each case without the written consent of each Lender directly and adversely affected thereby;


(v) change any of the provisions of this Section without the written consent of each Lender directly and adversely affected thereby;

(vi) change the percentage set forth in the definition of “Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (or each Lender of such Class, as the case may be);;

(vii) release all or substantially all of the value of the Guarantees under the Guarantee Agreement (except as expressly permitted or provided for in the Loan Documents) without the written consent of each Lender;

(viii) release all or substantially all of the Collateral from the Liens of the Security Documents (except as expressly permitted or provided for in the Loan Documents), without the written consent of each Lender; or

(ix) change the provisions of Section 4.02 without the written consent of the Required Lenders;

provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or any Issuing Bank without the prior written consent of the Administrative Agent, or such Issuing Bank, as the case may be.

Notwithstanding anything to the contrary contained in this Section 9.02 or otherwise in this Agreement or any other Loan Document, (i) this Agreement and any other Loan Document may be amended, supplemented or otherwise modified, or any provision thereof waived, with the consent of the Administrative Agent and the Borrower without the need to obtain the consent of any Lender or Issuing Bank, if such amendment, supplement, modification or waiver is delivered in order to (A) cure ambiguities, omissions, mistakes or defects or (B) cause any Security Document to be consistent with this Agreement and the other Loan Documents, (ii) without the consent of any Lender or Issuing Bank, the Borrower and the Administrative Agent or any other collateral agent may enter into any amendment, supplement, waiver or modification of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest of the Secured Parties in any Collateral or additional property to become Collateral for the benefit of the Secured Parties or as required by local law to give effect to, or protect any security interests for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document and (iii) the Fee Letter may be amended or modified, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. The Administrative Agent shall make available to the Lenders copies of each amendment or other modification to this Agreement.

(c) In connection with any proposed amendment, modification, waiver or termination (a “ Proposed Change ”) requiring the consent of all Lenders or all directly and adversely affected Lenders, if the consent of the Required Lenders (and, to the extent any Proposed Change requires the consent of Lenders holding Loans of any Class, the consent of a majority in interest of the outstanding Loans and unused Commitments of such Class) to such Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in paragraph (b) of this Section being referred to as a “ Non-Consenting Lender ”), then, so long as the Lender that is acting as Administrative Agent is not a Non-Consenting Lender, the Borrower may, at its sole expense and effort, upon notice to such Non-Consenting Lender and the


Administrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement (or in respect of any applicable Class of Loans or Commitments only, in the case of any proposed amendment, modification, waiver or termination requiring the consent of all directly and adversely affected Lenders) to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided that (a) the Borrower shall have received the prior written consent of the Administrative Agent to the extent such consent would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable (and, if a Revolving Commitment is being assigned, each Issuing Bank), which consent shall not unreasonably be withheld, (b) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding par principal amount of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (including pursuant to Section 2.11(a)) (or all such amounts in respect of any applicable Class of Loans or Commitments only, in the case of any proposed amendment, modification, waiver or termination requiring the consent of all directly and adversely affected Lenders) from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (c) unless waived, the Borrower or such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in Section 9.04(b).

(d) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, the Commitments and Revolving Exposure of any Lender that is at the time a Defaulting Lender shall not have any voting or approval rights under the Loan Documents and shall be excluded in determining whether all Lenders, all affected Lenders, the Required Lenders or Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to this Section 9.02); provided that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring (i) the consent of all Lenders or (ii) each affected Lender that affects any Defaulting Lender more adversely than other affected Lenders, shall require the consent of such Defaulting Lender.

Section 9.03 Expenses; Indemnity; Damage Waiver .

(a) The Borrower shall pay, if the Effective Date occurs, (i) all reasonable and documented or invoiced out-of-pocket costs and expenses incurred by the Administrative Agent and its Affiliates (without duplication), the Lead Arranger and each Issuing Bank including the reasonable fees, charges and disbursements of one counsel to the Administrative Agent, the Lead Arranger and each Issuing Bank and to the extent reasonably deemed necessary by the Administrative Agent, one local counsel in each relevant jurisdiction and, in the case of any conflict of interest (as reasonably determined by the Administrative Agent, Issuing Bank or Lead Arranger subject to such conflict), one additional counsel in each relevant jurisdiction to each group of affected persons similarly situated (taken as a whole), in connection with the syndication of the credit facilities provided for herein, and the preparation, execution, delivery and administration of the Loan Documents or any amendments, modifications or waivers of the provisions thereof, (ii) all reasonable and documented or invoiced out-of-pocket costs and expenses incurred by each Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented or invoiced out-of-pocket expenses incurred by the Administrative Agent, the Lead Arranger, each Issuing Bank and each Lender, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, the Issuing Banks, the Lenders and the Lead Arranger in connection with the enforcement or protection of any rights or remedies (A) in


connection with the Loan Documents (including all such reasonable costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Laws), including its rights under this Section or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket costs and expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit; provided that such counsel shall be limited to one lead counsel and such local counsel (exclusive of any reasonably necessary special counsel) as may reasonably be deemed necessary by the Administrative Agent in each relevant jurisdiction and, in the case of an actual or reasonably perceived conflict of interest, one additional counsel per affected party. For the avoidance of doubt, this paragraph (b) shall not apply with respect to Indemnified Taxes, Other Taxes or Excluded Taxes other than any such Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

(b) The Borrower shall indemnify the Administrative Agent, each Issuing Bank, each Lender, the Lead Arranger, the Syndication Agent and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable and documented or invoiced out-of-pocket fees and expenses of any one counsel for any Indemnitee, incurred by or asserted against any Indemnitee by any third party or by the Borrower or any of its Subsidiaries arising out of any claims, actions, suits, inquiries, litigation, investigation or proceeding in connection with, or as a result of (i) the execution or delivery of this Agreement, any Loan Document or any other agreement or instrument contemplated hereby or thereby, the performance by the parties to the Loan Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (iii) to the extent in any way arising from or relating to any of the foregoing, any actual or alleged presence or Release of Hazardous Materials on, at, to or from any Mortgaged Property or any other property currently or formerly owned or operated by the Borrower or any of its Subsidiaries, or any other Environmental Liability related in any way to Borrower or any of its Subsidiaries, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any of its Subsidiaries and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities, costs or related expenses (x) resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Parties (as determined by a court of competent jurisdiction in a final and non-appealable judgment), (y) resulted from a material breach of a funding or confidentiality requirement hereunder or under the other Loan Documents by such Indemnitee or its Related Parties (as determined by a court of competent jurisdiction in a final and non-appealable judgment) or (z) arise from disputes between or among Indemnitees that do not involve an act or omission by Borrower or any of its Subsidiaries ( provided that the Administrative Agent and the Lead Arranger shall be indemnified in their capacities as such notwithstanding this clause (y)). For the avoidance of doubt, this paragraph (b) shall not apply with respect to Indemnified Taxes, Other Taxes or Excluded Taxes, which shall be governed solely by Section 2.16.

(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent or any Issuing Bank under paragraph (a) or (b) of this Section, each Lender (or, in the case of a payment to an Issuing Bank, each Revolving Lender) severally agrees to pay to the Administrative Agent or such Issuing Bank, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense


or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent or such Issuing Bank in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the aggregate Revolving Exposures and unused Commitments at such time (or, in the case of a payment to an Issuing Bank, its share of the aggregate Revolving Exposures only). The obligations of the Lenders under this paragraph (c) are subject to the last sentence of Section 2.02(a) (which shall apply mutatis mutandis to the Lenders’ obligations under this paragraph (c)).

(d) To the extent permitted by applicable law, the Borrower and the Guarantors shall not assert, and each hereby waives, any claim against any Indemnitee (i) for any direct or actual damages arising from the use by unintended recipients of information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems (including the Internet) in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such direct or actual damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of, or a material breach of a funding or confidentiality requirement hereunder or under the other the Loan Documents by, such Indemnitee or its Related Parties or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof. In addition, no Loan Party shall be liable to an Indemnitee for any indirect, special, consequential or punitive damages except any such damages incurred or paid by an Indemnitee to a third party.

(e) All amounts due under this Section shall be payable not later than ten (10) Business Days after written demand therefor; provided , however , that any Indemnitee shall promptly refund an indemnification payment received hereunder to the extent that there is a final judicial determination that such Indemnitee was not entitled to indemnification with respect to such payment pursuant to this Section 9.03.

Section 9.04 Successors and Assigns .

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void), (ii) no assignment shall be made to any Defaulting Lender or any of its Subsidiaries, or any Persons who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (ii) and (iii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section), the Indemnitees and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, each Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.


(b) (i) Subject to the conditions set forth in paragraphs (b)(ii) and (e) below, any Lender may assign to one or more Eligible Assignees (which, for the avoidance of doubt, shall exclude any Competitor) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of (A) the Borrower, provided that no consent of the Borrower shall be required for an assignment by a Revolving Lender (x) to any other Revolving Lender or an Affiliate of a Revolving Lender or an Approved Fund of a Revolving Lender or (y) if (A) an Event of Default or (B) a Default under Section 7.01(a), (b), (h), or (i) has occurred and is continuing, (B) the Administrative Agent and (C) each Issuing Bank; provided that no consent of the Administrative Agent pursuant to clause (B) above shall be required for an assignment by a Revolving Lender to any other Revolving Lender or an Affiliate of a Revolving Lender or an Approved Fund of a Revolving Lender. Notwithstanding anything in this Section 9.04 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to such assignment within ten (10) Business Days after written notice to the Borrower requesting such consent, the Borrower shall be deemed to have consented to such assignment.

(ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the trade date specified in the Assignment and Assumption with respect to such assignment or, if no trade date is so specified, as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 (and integral multiples thereof), unless the Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed); provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing, (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided that this clause (B) shall not be construed to prohibit assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans, (C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together (unless waived by the Administrative Agent) with a processing and recordation fee of $3,500; provided that the Administrative Agent, in its sole discretion, may elect to waive such processing and recordation fee; provided further that assignments made pursuant to Section 2.19(b) or Section 9.02(c) shall not require the signature of the assigning Lender to become effective and (D) the assignee, if it is not a Lender at the time of the assignment, shall deliver to the Administrative Agent and the Borrower any Tax forms required by Section 2.16(e) and an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.

(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and


obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of (and subject to the obligations and limitations of) Sections 2.14, 2.15, 2.16, 2.17 and 9.03 and to any fees payable hereunder that have accrued for such Lender’s account but have not yet been paid). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations, subject to the requirements of paragraph (c) of this Section.

(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices, which it shall notify to Borrower in writing, a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal and interest amounts of the Loans and LC Exposure, LC Disbursements and amounts due under Section 2.05 owing to, each Lender and Issuing Bank pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender or Issuing Bank, as applicable, hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection by the Borrower, the Issuing Banks and any Lender, at any reasonable time and from time to time upon reasonable prior notice. This Section 9.04(b) and Section 2.08 shall be construed so that the Loans, The LC Exposure and the LC Disbursements are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code.

(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any Tax forms required by Section 2.16(e) (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section 9.04 and any written consent to such assignment required by paragraph (b) of this Section 9.04, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement until it has been recorded in the Register as provided in this paragraph (v) and paragraph (iv) above.

(vi) The words “execution,” “signed,” “signature” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar state laws based on the Uniform Electronic Transactions Act.


(c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent, or the Issuing Banks, sell participations to one or more banks or other Persons other than a natural person, a Defaulting Lender, the Borrower or any of its Subsidiaries (a “ Participant ”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and any other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and any other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that directly and adversely affects such Participant. Subject to paragraph (c)(iii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the obligations and limitations of such Sections, including such Participant’s compliance with Section 2.16(e)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.17(c) as though it were a Lender.

(ii) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register, complying with the requirements of Sections 163(f), 871(h) and 881(c)(2) of the Code and the Treasury regulations issued thereunder (or any other relevant or successor provisions of the Code or of such Treasury regulations), on which it enters the name and address of each Participant and the principal amounts (and related interest amounts) of each Participant’s interest in the Loans or other obligations under this Agreement (the “ Participant Register ”). A Lender shall not be obligated to disclose the Participant Register to any Person except to the extent such disclosure is necessary to establish that any Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury regulations. The entries in the Participant Register shall be conclusive, absent manifest error, and the Lenders, the Issuing Bank, the Borrower and the Administrative Agent shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.

(iii) Notwithstanding anything to the contrary herein, a Participant shall not be entitled to receive any greater payment under Section 2.15 or Section 2.16 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent or except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.

(d) Any Lender may, without the consent of the Borrower, the Administrative Agent or Issuing Banks, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other “central” bank, and


this Section shall not apply to any such pledge or assignment of a security interest, provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(e) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Section 9.05 Survival . All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to any Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof. Notwithstanding the foregoing or anything else to the contrary set forth in this Agreement, in the event that, in connection with the refinancing or repayment in full of the credit facilities provided for herein, an Issuing Bank shall have provided to the Administrative Agent a written consent to the release of the Revolving Lenders from their obligations hereunder with respect to any Letter of Credit issued by such Issuing Bank (whether as a result of the obligations of the Borrower (and any other account party) in respect of such Letter of Credit having been collateralized in full by a deposit of cash with such Issuing Bank or being supported by a letter of credit that names such Issuing Bank as the beneficiary thereunder, or otherwise), then from and after such time such Letter of Credit shall cease to be a “Letter of Credit” outstanding hereunder for all purposes of this Agreement and the other Loan Documents, and the Revolving Lenders shall be deemed to have no participations in such Letter of Credit, and no obligations with respect thereto, under Section 2.05(e) or (f).

Section 9.06 Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall


constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent or the syndication of the Loans and Commitments constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 9.07 Severability . Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 9.07, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent or an Issuing Bank, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.

Section 9.08 Right of Setoff . If an Event of Default shall have occurred and be continuing, the Administrative Agent, each Lender, each Issuing Bank and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations in whatever currency at any time owing by the Administrative Agent, such Lender, any such Issuing Bank or any such Affiliate to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower then due and owing under this Agreement held by the Administrative Agent, such Lender or Issuing Bank, irrespective of whether or not the Administrative Agent, such Lender or Issuing Bank shall have made any demand under this Agreement and although (i) such obligations may be contingent or unmatured and (ii) such obligations are owed to a branch or office of the Administrative Agent, such Lender or Issuing Bank different from the branch or office holding such deposit or obligated on such Indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.19 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Secured Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The Administrative Agent, the applicable Lender and applicable Issuing Bank shall notify the Borrower and the Administrative Agent of such setoff and application; provided that any failure to give or any delay in giving such notice shall not affect the validity of any such setoff and application under this Section. The rights of the Administrative Agent, each Lender, each Issuing Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender, such Issuing Bank and their respective Affiliates may have.

Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process .


(a) This Agreement shall be construed in accordance with and governed by the laws of the State of New York.

(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in any Loan Document shall affect any right that the Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to any Loan Document against the Borrower or its properties in the courts of any jurisdiction.

(c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to any Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in any Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

Section 9.10 WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 9.11 Headings . Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

Section 9.12 Confidentiality .

(a) Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its Affiliates and its and its Affiliates’ directors, officers, employees, trustees and agents, including accountants, legal counsel and other agents and advisors on a need to know basis (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such


Information confidential and any failure of such Persons acting on behalf of the Administrative Agent, any Issuing Bank or the relevant Lender to comply with this Section 9.12 shall constitute a breach of this Section 9.12 by the Administrative Agent, such Issuing Bank or the relevant Lender, as applicable), (ii) to the extent requested by any regulatory authority or self-regulatory authority, required by applicable law or by any subpoena or similar legal process; provided that solely to the extent permitted by law and other than in connection with routine audits and reviews by regulatory and self-regulatory authorities, each Lender and the Administrative Agent shall notify the Borrower as promptly as practicable of any such requested or required disclosure in connection with any legal or regulatory proceeding; provided further that in no event shall any Lender or the Administrative Agent be obligated or required to return any materials furnished by the Borrower or any of its Subsidiaries, (iii) to any other party to this Agreement, (iv) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any Loan Document or the enforcement of rights hereunder or thereunder, (v) subject to an agreement containing confidentiality undertakings substantially similar to those of this Section, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (B) any actual or prospective counterparty (or its advisors) to any Swap Agreement or derivative transaction relating to any Loan Party or its Subsidiaries and its obligations under the Loan Documents or (C) any pledgee referred to in Section 9.04(d), (vi) if required by any rating agency; provided that prior to any such disclosure, such rating agency shall have agreed in writing to maintain the confidentiality of such Information or (vii) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Issuing Bank, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. For the purposes hereof, “ Information ” means all information received from the Borrower relating to the Borrower or any of its Subsidiaries or their business, other than any such information that is available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any of its Subsidiaries; it being understood that all information received from the Borrower or any of its Subsidiaries after the date hereof shall be deemed confidential unless such information is clearly identified at the time of delivery as not being confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.

(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT, WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY,


EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.

Section 9.13 USA Patriot Act . Each Lender that is subject to the USA Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the USA Patriot Act.

Section 9.14 Judgment Currency .

(a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures in the relevant jurisdiction the first currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.

(b) The obligations of the Borrower in respect of any sum due to any party hereto or any holder of any obligation owing hereunder (the “ Applicable Creditor ”) shall, notwithstanding any judgment in a currency (the “ Judgment Currency ”) other than the currency in which such sum is stated to be due hereunder (the “ Agreement Currency ”), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss. The obligations of the Borrower under this Section shall survive the termination of this Agreement and the payment of all other amounts owing hereunder.

Section 9.15 Release of Liens and Guarantees .

(a) A Subsidiary Loan Party shall automatically be released from its obligations under the Loan Documents, and all security interests created by the Security Documents in Collateral owned by such Subsidiary Loan Party shall be automatically released, upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary Loan Party ceases to be a Subsidiary (including pursuant to a merger with a Subsidiary that is not a Loan Party). Upon any sale or other transfer by any Loan Party (other than to the Borrower or any Subsidiary Loan Party) of any Collateral in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security interest created under any Security Document in any Collateral or the release of any Subsidiary Loan Party from its Guarantee under the Guarantee Agreement pursuant to Section 9.02, the security interests in such Collateral created by the Security Documents or such Guarantee shall be automatically released. Upon termination of the aggregate Commitments and payment in full in cash of all Secured Obligations (other than (x) contingent indemnification obligations as to which no claim has been made and (y) Secured Cash Management Obligations


and Secured Swap Obligations (each as defined in the Collateral Agreement) as to which arrangements reasonably satisfactory to the applicable Secured Party have been made) and the expiration or termination of all Letters of Credit (including as a result of obtaining the consent of the applicable Issuing Bank as described in Section 9.05 of this Agreement, or as a result of such Letters of Credit being backstopped or cash collateralized as described in Section 2.05(d)), all obligations under the Loan Documents and all security interests created by the Security Documents shall be automatically released. In connection with any termination or release pursuant to this Section, the Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent such certifications or documents as the Administrative Agent shall reasonably request in order to demonstrate compliance with this Agreement.

(b) The Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to subordinate its Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(iii), (iv), (v), (vii), (xi), (xii) or (xiii).

(c) Each of the Lenders and the Issuing Bank irrevocably authorizes the Administrative Agent to provide any release or evidence of release, termination or subordination contemplated by this Section 9.15. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under any Loan Document, in each case in accordance with the terms of the Loan Document and this Section 9.15.

(d) Royal Bank has adopted internal policies and procedures that address requirements placed on federally regulated lenders under the National Flood Insurance Reform Act of 1994 and related legislation (the “ Flood Laws ”). Royal Bank, as Administrative Agent or Collateral Agent on a syndicated facility, will post on the applicable electronic platform (or otherwise distribute to each lender in the syndicate) documents that it receives in connection with the Flood Laws. However, Royal Bank reminds each Lender and participant in the credit facility that, pursuant to the Flood Laws, each federally regulated lender (whether acting as a Lender or participant in the credit facility) is responsible for assuring its own compliance with the flood insurance requirements.

Section 9.16 No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Lenders, the Lead Arranger, the Documentation Agent and the Syndication Agent are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Lenders, the Lead Arranger, the Documentation Agent and the Syndication Agent, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Administrative Agent, the Lenders,


the Lead Arranger, the Documentation Agent and the Syndication Agent is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not and will not be acting as an advisor, agent or fiduciary for the Borrower its Affiliates or any other Person and (B) none of the Administrative Agent, the Lenders, the Lead Arranger, the Documentation Agent or the Syndication Agent has any obligation to the Borrower or its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Lenders, the Lead Arranger, the Documentation Agent and the Syndication Agent and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and none of the Administrative Agent, the Lenders, the Lead Arranger, the Documentation Agent and the Syndication Agent has any obligation to disclose any of such interests to the Borrower or any of its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent, the Lenders, the Lead Arranger, the Documentation Agent or the Syndication Agent with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

Section 9.17 Interest Rate Limitation . Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “ Maximum Rate ”). If the Administrative Agent, any Issuing Bank or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged or received by the Administrative Agent, any Issuing Bank or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the obligations hereunder.

[Remainder of Page Intentionally Blank]


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

A10 NETWORKS, INC.
By:  

/s/ Greg Straughn

  Name:   Greg Straughn
  Title:   Chief Financial Officer


ROYAL BANK OF CANADA , as Administrative Agent
By:  

/s/ Susan Khokher

  Name:   Susan Khokher
  Title:   Manager, Agency
ROYAL BANK OF CANADA , as a Lender and Issuing Bank
By:  

/s/ Mark Gronich

  Name:   Mark Gronich
  Title:   Authorized Signatory


JPMORGAN CHASE BANK, N.A ., as a Lender
By:  

/s/ Caitlin Stewart

  Name:   Caitlin Stewart
  Title:   Vice President


BANK OF AMERICA, N.A ., as a Lender
By:  

/s/ Thomas R. Sullivan

  Name:   Thomas R. Sullivan
  Title:   Senior Vice President


SCHEDULE 2.01

Commitments

 

Lender

   Allocation  

Royal Bank of Canada

   $ 11,666,666.68   

JPMorgan Chase Bank, N.A.

   $ 11,666,666.66   

Bank of America, N.A.

   $ 11,666,666.66   
  

 

 

 

Total:

   $ 35,000,000.00   
  

 

 

 


SCHEDULE 5.13

Certain Post-Closing Obligations

None.


SCHEDULE 9.02

Notices

Borrower:

Greg Straughn

Chief Financial Officer

A10 Networks, Inc.

3 West Plumeria Drive

San Jose, CA 95135

Santa Clara County

Phone: (408) 325-8668

Fax: (408) 325-8666

Email: gregs@a10networks.com; legal@a10networks.com

Administrative Agent:

Royal Bank of Canada, as Agent

20 King Street West, 4th Floor

Toronto, Ontario M5H 1C4

Attention: Manager, Agency Services Group

Fax: 416-842-4023


EXHIBIT A

FORM OF ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (this “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between the Assignor named below (the “ Assignor ”) and the Assignee named below (the “ Assignee ”). It is understood and agreed that the rights and obligations of the Assignor and the Assignee hereunder are several and not joint. Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including, without limitation, Letters of Credit and Guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “ Assigned Interest ”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.

 

1. Assignor:    [Assignor Name]
2. Assignee:    [Assignee Name]
   [and is an Affiliate/Approved Fund of [Lender Name]]
   Assignees are Affiliated Lenders:          (Y/N)
3. Borrower:    A10 NETWORKS, INC.
4. Administrative Agent:    ROYAL BANK OF CANADA
5. Credit Agreement:    The Credit Agreement dated as of September 30, 2013, as amended, restated, amended and restated, extended, supplemented


   or otherwise modified in writing from time to time, among A10 Networks, Inc., a California corporation, the Lenders party thereto, Royal Bank of Canada, as an Issuing Bank and Royal Bank of Canada, as Administrative Agent.

 

6.        Assigned Interest:        Facility Assigned    

Aggregate amount of

Commitment/Loans

for all Lenders

    

Amount of
Commitment/Loans
Assigned

      
    

 

 

   

 

 

    

 

 

    
                    1     $            $           
    

 

 

   

 

 

    

 

 

    
       $            $           
    

 

 

   

 

 

    

 

 

    
       $            $           
    

 

 

   

 

 

    

 

 

    

 

7.        Effective Date:

               , 20     2

[Signature Page Follows]

 

1   Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g., “Revolving Commitment,” “Revolving Loan,” etc.).
2   To be inserted by Administrative Agent and which shall be the effective date of recordation of transfer in the Register.


The terms set forth in this Assignment and Assumption are hereby agreed to:

 

ASSIGNOR:
[NAME OF ASSIGNOR]
By:  

 

  Name:
  Title:
ASSIGNEE:
[NAME OF ASSIGNEE]
By:  

 

  Name:
  Title:
[Consented to and] 3 Accepted:

ROYAL BANK OF CANADA,

as Administrative Agent

By:  

 

  Name:
  Title:
[Consented to: 4
By:  

 

  Name:
  Title:]

 

3   To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
4   To be added only if the consent of the Borrower or any Issuing Bank is required by the terms of the Credit Agreement.


ANNEX 1

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

1. Representations and Warranties .

1.1 Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Affiliates or any of the Subsidiaries or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Affiliates or any of the Subsidiaries or any other Person of any of their respective obligations under any Loan Document.

1.2 Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01(a) or (b)  thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, (vi) if it is a Lender that is not a United States person, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee and (vii) if it is an Affiliated Lender, it has indicated its status as such in the space provided on the first page of this Assignment and Assumption, and it does not possess material non-public information with respect to Borrower and its Subsidiaries or the securities of any of them that have not been disclosed to the Lenders generally (other than Lenders who elect not to receive such information); and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents and (ii) it will perform in accordance with


their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

2. Payments . From and after the Effective Date referred to in this Assignment and Assumption, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.

3. General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the laws of the State of New York.


EXHIBIT B

FORM OF GUARANTEE AGREEMENT


EXHIBIT C

FORM OF PERFECTION CERTIFICATE


EXHIBIT D

FORM OF COLLATERAL AGREEMENT


EXHIBIT E-1

FORM OF CLOSING CERTIFICATE


EXHIBIT E-2

FORM OF SOLVENCY CERTIFICATE

September 30, 2013

This Solvency Certificate is delivered pursuant to Section 4.01(k) of the Credit Agreement (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”), dated as of September 30, 2013, among A10 Networks, Inc., a California corporation (the “ Borrower ”), the Lenders party thereto, Royal Bank of Canada, as an Issuing Bank and Royal Bank of Canada, as Administrative Agent. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement.

The undersigned, [                    ], Chief Financial Officer of the Borrower, is familiar with the properties, businesses, assets and liabilities of the Borrower and its Subsidiaries and is duly authorized to execute this certificate (this “ Solvency Certificate ”) on behalf of the Borrower.

1. The undersigned certifies, on behalf of the Borrower and not in his individual capacity, that he has made such investigation and inquiries as to the financial condition of the Borrower as the undersigned deems necessary and prudent for the purposes of providing this Solvency Certificate. The undersigned acknowledges that the Lenders are relying on the truth and accuracy of this Solvency Certificate in connection with the making of Loans under the Credit Agreement.

2. The undersigned certifies, on behalf of the Borrower and not in his individual capacity, that (a) the financial information, projections and assumptions which underlie and form the basis for the representations made in this Solvency Certificate were made in good faith and were based on assumptions believed by the Borrower to be reasonable in light of the circumstances existing at the time made and as of the date hereof and (b) for purposes of providing this Solvency Certificate, the amount of contingent liabilities has been computed as the amount that, in the light of all the facts and circumstances existing as of the time of such computation, represents the amount that the Borrower believes can reasonably be expected to become an actual or matured liability.

BASED ON THE FOREGOING, the undersigned certifies, on behalf of the Borrower and not in his individual capacity, that from and after the consummation of the Transactions to occur on the date hereof, after taking into account all applicable rights of indemnity and contribution, (a) the fair value of the assets of the Borrower and its Subsidiaries exceeds their debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the property of the Borrower and its Subsidiaries is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) the Borrower and its Subsidiaries are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured and (d) the Borrower and its Subsidiaries are not


engaged in, and are not about to engage in, business for which they have unreasonably small capital.

[Signature Page Follows]


IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate on the date first above written.

 

By:  

 

  Name:   Greg Straughn
  Title:   Chief Financial Officer


EXHIBIT F

FORM OF INTERCOMPANY NOTE 1

New York, New York

Date:             , 20[    ]

FOR VALUE RECEIVED, each of the undersigned (each, in such capacity, a “ Payor ”), to the extent a borrower from time to time with respect to any loan or advance (including trade payables to the extent constituting Indebtedness (as defined in the Credit Agreement)) (a “ Loan ”) from any other entity designated as a “Payee” on the signature page, to the extent a lender from time to time with respect to a Loan (each, in such capacity, a “ Payee ”), hereby promises to pay to such Payee, at the time specified on the schedule attached hereto with respect to such loan (or if there is no such schedule, on demand), and in lawful money of the United States of America, or in such other currency as agreed to by such Payor and such Payee, in immediately available funds, at such location as a Payee shall from time to time designate, the unpaid principal amount of all Loans made by such Payee to such Payor. Each Payor promises also to pay interest on the unpaid principal amount of all such loans and advances in like money at said location from the date of such loans and advances until paid at such rate per annum as shall be reflected on the schedule or as otherwise agreed upon from time to time by such Payor and such Payee. The terms and conditions of one or more Loans may be set forth on a schedule to be attached to this note (“ Note ”) to memorialize the agreement of the Payor and Payee with respect to such Loan(s), in which case the terms and conditions specified in the schedule shall govern as between the Payor and Payee; provided , that such terms and conditions may not be inconsistent with the provisions of this Note.

This Note is an intercompany note referred to in that certain Credit Agreement, dated as of September 30, 2013 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ;” the terms defined therein being used herein as therein defined), among A10 NETWORKS, INC., a California corporation (the “ Borrower ”), the Lenders party thereto, ROYAL BANK OF CANADA, as an Issuing Bank and ROYAL BANK OF CANADA, as Administrative Agent, and is subject to the terms thereof, and shall be pledged by each Payee pursuant to the Collateral Agreement, to the extent required pursuant to the terms thereof. Each Payee hereby acknowledges and agrees that after the occurrence and during the continuance of an Event of Default, the Administrative Agent may exercise any and all rights of any Loan Party with respect to this Note.

[Anything in this Note to the contrary notwithstanding, the indebtedness evidenced by this Note owed by any Payor that is a Loan Party to any Payee that is not a Loan Party shall be subordinate and junior in right of payment, to the extent and in the manner

 

1  

Borrower intends to deliver two Intercompany Notes: (i) a global Intercompany Note to be issued to evidence any intercompany loan that is advanced by a Loan Party and held by a Subsidiary that is not a Loan Party to satisfy Section 6.01(iv)(B) (and such Intercompany Note shall be pledged to the Administrative Agent) or (ii) a global Intercompany Note to be issued to evidence any intercompany loan that is advanced by a Subsidiary that is not a Loan Party to a Loan Party to satisfy Section 6.01(iv)(A).


hereinafter set forth, to all Secured Obligations of such Payor until the payment in full in cash of all Secured Obligations of such Payor (other than (a) unasserted contingent indemnification obligations and (b) Secured Cash Management Obligations and Secured Swap Obligations as to which arrangements reasonably satisfactory to the applicable Secured Party have been made); provided , that each Payor may make payments to the applicable Payee unless an Event of Default shall have occurred and be continuing (such Secured Obligations and other indebtedness and obligations in connection with any renewal, refunding, restructuring or refinancing thereof, including interest thereon accruing after the commencement of any proceedings referred to in clause (i) below, whether or not such interest is an allowed claim in such proceeding, being hereinafter collectively referred to as “ Senior Indebtedness ”):

(i) in the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to any Payor or to its creditors, as such, or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding up of such Payor, whether or not involving insolvency or bankruptcy, then, if an Event of Default has occurred and is continuing, (x) the holders of Senior Indebtedness shall be paid in full in cash in respect of all amounts constituting Senior Indebtedness before any Payee that is not a Loan Party is entitled to receive (whether directly or indirectly), or make any demands for, any payment on account of this Note and (y) until the holders of Senior Indebtedness are paid in full in cash in respect of all amounts constituting Senior Indebtedness (other than (I) unasserted contingent indemnification obligations and (II) Secured Cash Management Obligations and Secured Swap Obligations as to which arrangements reasonably satisfactory to the applicable Secured Party have been made), any payment or distribution to which such Payee would otherwise be entitled (other than (A) equity securities or (B) debt securities of such Payor that are subordinated, to at least the same extent as this Note, to the payment of all Senior Indebtedness then outstanding (such securities being hereinafter referred to as “ Restructured Debt Securities ”)) shall be made to the holders of Senior Indebtedness;

(ii) if any Event of Default has occurred and is continuing, then no payment or distribution of any kind or character shall be made by or on behalf of any Payor that is a Loan Party or any other Person on its behalf with respect to this Note owed to any Payee that is not a Loan Party, unless otherwise agreed in writing by the Administrative Agent in its reasonable discretion; and

(iii) if any payment or distribution of any character, whether in cash, securities or other property (other than Restructured Debt Securities), in respect of this Note shall (despite these subordination provisions) be received by any Payee in violation of clause (i) or (ii) before all Senior Indebtedness shall have been paid in full in cash (other than (x) unasserted contingent indemnification obligations and (y) Secured Cash Management Obligations and Secured Swap Obligations as to which arrangements reasonably satisfactory to the applicable Secured Party have been made), such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness (or their representatives), ratably according to the respective aggregate amounts remaining unpaid thereon, to the extent necessary to pay all Senior Indebtedness in full in cash.


To the fullest extent permitted by law, no present or future holder of Senior Indebtedness shall be prejudiced in its right to enforce the subordination of this Note by any act or failure to act on the part of any Payor or by any act or failure to act on the part of such holder or any trustee or agent for such holder. Each Payee and each Payor hereby agree that the subordination of this Note is for the benefit of the Administrative Agent, each Issuing Bank and the Lenders and the Administrative Agent, each Issuing Bank and the Lenders are obligees under this Note to the same extent as if their names were written herein as such and the Administrative Agent may, on behalf of itself, each Issuing Bank and the Lenders, proceed to enforce the subordination provisions herein.

The indebtedness evidenced by this Note owed by any Payor that is not a Loan Party or any Payor that is a Loan Party, in each case, to any Payee that is a Loan Party shall not be subordinated to, and shall rank pari passu in right of payment with, any other obligation of such Payor.

Nothing contained in the subordination provisions set forth above is intended to or will impair, as between each Payor and each Payee, the obligations of such Payor, which are absolute and unconditional, to pay to such Payee the principal of and interest on this Note as and when due and payable in accordance with its terms, or is intended to or will affect the relative rights of such Payee and other creditors of such Payor other than the holders of Senior Indebtedness.

Each Payee is hereby authorized to record all loans and advances made by it to any Payor (all of which shall be evidenced by this Note), and all repayments or prepayments thereof, in its books and records, such books and records constituting prima facie evidence of the accuracy of the information contained therein. For the avoidance of doubt, this Note as between each Payor and each Payee contains additional terms to any intercompany loan agreement between them and this Note does not in any way replace such intercompany loans between them nor does this Note in any way change the principal amount of any intercompany loans between them.

Each Payor hereby waives presentment, demand, protest or notice of any kind in connection with this Note. All payments under this Note shall be made without offset, counterclaim or deduction of any kind.

This Note shall be binding upon each Payor and its successors and assigns, and the terms and provisions of this Note shall inure to the benefit of each Payee and its successors and assigns, including subsequent holders hereof.

From time to time after the date hereof, and as reflected on the schedule, additional subsidiaries of Borrower may become parties hereto (as Payor and/or Payee, as the case may be) by executing a counterpart signature page to this Note (each additional subsidiary, an “ Additional Party ”). Upon delivery of such counterpart signature page to the Payees, notice of which is hereby waived by the other Payors, each Additional Party shall be a Payor and/or a Payee, as the case may be, and shall be as fully a party hereto as if such Additional Party were an original signatory hereof. Each Payor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Payor or Payee


hereunder. This Note shall be fully effective as to any Payor or Payee that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Payor or Payee hereunder.

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

[Signature Page Follows]


[SIGNATURE BLOCKS FOR INTERCOMPANY NOTE TO SATISFY SECTION 6.01(iv)(B)]: 2

[SUBSIDIARIES THAT ARE NOT LOAN

PARTIES],

as Payor

By:  

 

  Name:
  Title:

[LOAN PARTIES],

as Payee

By:  

 

  Name:
  Title:
[SIGNATURE BLOCKS FOR INTERCOMPANY
NOTE TO SATISFY SECTION 6.01(iv)(A)]: 3

[LOAN PARTIES],

as Payor

By:  

 

  Name:
  Title:

[SUBSIDIARIES THAT ARE NOT LOAN PARTIES],

as Payee

By:  

 

  Name:
  Title:

 

2   Intercompany Note issued by Subsidiaries that are not Loan Parties will be pledged to the Administrative Agent.
3   Intercompany Note issued by Loan Parties will not be pledged to the Administrative Agent.


Schedule to Intercompany Note

Payors

Payees


EXHIBIT G

FORM OF

UNITED STATES TAX COMPLIANCE CERTIFICATE

(For Non-U.S. Lenders That Are Not Partnerships or Pass-Thru Entities

For U.S. Federal Income Tax Purposes)

Reference is made to that certain Credit Agreement (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”) dated as of September 30, 2013, among A10 Networks, Inc., a California corporation (the “ Borrower ”), the Lenders from time to time party thereto, Royal Bank of Canada, as an Issuing Bank and Royal Bank of Canada, as Administrative Agent. Capitalized terms used herein but not otherwise defined shall have the meaning given to such term in the Credit Agreement.

Pursuant to the provisions of Section 2.16(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (iv) it is not a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (v) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned.

The undersigned has furnished the Administrative Agent and the Borrower with two properly completed and duly executed original certifications of its non-U.S. person status on Internal Revenue Service Form W-8BEN. The undersigned shall, whenever a lapse in time or change in circumstances renders this certificate expired, obsolete or inaccurate in any respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify the Borrower and the Administrative Agent of its inability to do so.

[Signature Page Follows]


[Lender]

By:

 

 

 

Name:

 

Title:

[Address]

Dated:             , 20[     ]


FORM OF

UNITED STATES TAX COMPLIANCE CERTIFICATE

(For Non-U.S. Lenders That Are Partnerships or Pass-Thru Entities

For U.S. Federal Income Tax Purposes)

Reference is made to that certain Credit Agreement (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”) dated as of September 30, 2013, among A10 Networks, Inc., a California corporation (the “ Borrower ”), the Lenders from time to time party thereto, Royal Bank of Canada, as an Issuing Bank and Royal Bank of Canada, as Administrative Agent. Capitalized terms used herein but not otherwise defined shall have the meaning given to such term in the Credit Agreement.

Pursuant to the provisions of Section 2.16(e) of the Credit Agreement, the undersigned hereby certifies, on behalf of itself and its direct or indirect partners/members (as applicable), that (i) it is the sole record owner of the Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any note(s) evidencing such Loan(s)), (iii) neither the undersigned nor any of its direct or indirect partners/members is a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (v) none of its direct or indirect partners/members is a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (vi) no payments in connection with any Loan Document are effectively connected with the a United States trade or business conducted by the undersigned or its direct or indirect partners/members.

The undersigned has furnished the Administrative Agent and the Borrower with Internal Revenue Service (“ IRS ”) Form W-8IMY accompanied by one of the following from each of its direct or indirect partners/members claiming the portfolio interest exemption: (i) and IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS W-8BEN; provided that, for the avoidance of doubt, the foregoing shall not limit the obligation of the Lender to provide, in the case of a direct or indirect partner/member not claiming the portfolio interest exemption, an IRS Form W-8ECI, IRS Form W-9 or IRS Form W-8IMY (including appropriate underlying certificates from each interest holder of such partner/member), in each case establishing such partner/member’s available exemption from U.S. federal withholding tax. The undersigned shall, whenever a lapse in time or change in circumstances renders this certificate expired, obsolete or inaccurate in any respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify the Borrower and the Administrative Agent of its inability to do so.

[Signature Page Follows]


[Lender]

By:  

 

  Name:
  Title:
[Address]

Dated:             , 20[     ]


FORM OF

UNITED STATES TAX COMPLIANCE CERTIFICATE

(For Non-U.S. Participants That Are Not Partnerships or Pass-Thru Entities

For U.S. Federal Income Tax Purposes)

Reference is made to that certain Credit Agreement (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”) dated as of September 30, 2013, among A10 Networks, Inc., a California corporation (the “ Borrower ”), the Lenders from time to time party thereto, Royal Bank of Canada, as an Issuing Bank and Royal Bank of Canada, as Administrative Agent. Capitalized terms used herein but not otherwise defined shall have the meaning given to such term in the Credit Agreement.

Pursuant to the provisions of Section 2.16(e) and Section 9.04(c) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (iv) it is not a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (v) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned.

The undersigned has furnished its participating Lender with a certificate of its non-U.S. person status on Internal Revenue Service Form W-8BEN. The undersigned shall, whenever a lapse in time or change in circumstances renders this certificate expired, obsolete or inaccurate in any respect, deliver promptly to such Lender updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify such Lender its inability to do so.

[Signature Page Follows]


[Participant]
By:  

 

  Name:
  Title:
[Address]

Dated:             , 20[     ]


FORM OF

UNITED STATES TAX COMPLIANCE CERTIFICATE

(For Non-U.S. Participants That Are Partnerships or Pass-Thru Entities

For U.S. Federal Income Tax Purposes)

Reference is made to that certain Credit Agreement (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”) dated as of September 30, 2013, among A10 Networks, Inc., a California corporation (the “ Borrower ”), the Lenders from time to time party thereto, Royal Bank of Canada, as an Issuing Bank and Royal Bank of Canada, as Administrative Agent. Capitalized terms used herein but not otherwise defined shall have the meaning given to such term in the Credit Agreement.

Pursuant to the provisions of Section 2.16(e) and Section 9.04(c) of the Credit Agreement, the undersigned hereby certifies, on behalf of itself and its direct or indirect partners/members (as applicable), that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) neither the undersigned nor any of its direct or indirect partners/members is a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (v) none of its direct or indirect partners/members is a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (vi) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned or its direct or indirect partners/members.

The undersigned has furnished its participating Lender with Internal Revenue Service Form W-8IMY accompanied by one of the following forms from each of its direct or indirect partners/ members claiming the portfolio interest exemption: (i) an Internal Revenue Service (“ IRS ”) Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W8BEN; provided that, for the avoidance of doubt, the foregoing shall not limit the obligation of the undersigned to provide, in the case of a direct or indirect partner/member not claiming the portfolio interest exemption, an IRS Form W-8ECI, IRS Form W-9 or IRS Form W-8IMY (including appropriate underlying certificates from each interest holder of such partner/member), in each case establishing such partner/member’s available exemption from U.S. federal withholding tax. The undersigned shall, whenever a lapse in time or change in circumstances renders this certificate expired, obsolete or inaccurate in any respect, deliver promptly to such Lender updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify such Lender of its inability to do so.

[Signature Page Follows]


[Participant]
By:  

 

  Name:
  Title:
[Address]

Dated:             , 20[     ]


EXHIBIT H

FORM OF BORROWING REQUEST

Date: [            ], 20[    ]

 

To: Royal Bank of Canada, as Administrative Agent

Ladies and Gentlemen:

Reference is made to the Credit Agreement dated as of September 30, 2013 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”), among A10 Networks, Inc., a California corporation, the Lenders party thereto, Royal Bank of Canada, as an Issuing Bank and Royal Bank of Canada, as Administrative Agent. Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.

Pursuant to Section 2.03 [ Section 2.05 ] 1 of the Credit Agreement, the undersigned, a Responsible Officer of the Borrower, hereby requests a:

 

¨   A Revolving Borrowing   

¨

   A conversion of a Borrowing from one Type to another   

¨

  

A continuation of Eurodollar Borrowing

   ¨    Request for a Letter of Credit 2

 

1. On                                         (a Business Day).

 

2. In the aggregate principal amount of $            .

 

3. With a rate of interest determined by reference to the [ABR/Eurodollar Rate]

 

4. For Eurodollar Rate Borrowings: with an Interest Period of      months (such Interest Period to comply with the provisions of the definition of “ Interest Period ”).

[The undersigned hereby further certifies that as of the date of such Borrowing, the conditions set forth in Sections 4.02(b) and 4.02(c) of the Credit Agreement are satisfied.] 3

 

1   Section 2.05 for notices requesting issuance (or amendment, renewal or extension) of a Letter of Credit
2   For requests for issuances of Letters of Credit, please specify (i) the date of issuance, amendment, renewal or extension (which shall be a Business Day), (ii) if it is an amendment, renewal or extension of outstanding Letter of Credit, please identify the Letter of Credit), (iii) the expiration date, (iv) the amount of the Letter of Credit, (v) the name and address of the beneficiary thereof and (vi) such other information that shall be necessary to issue, amend, renew or extend such Letter of Credit, in each case, in accordance with Section 2.05 of the Credit Agreement.
3   Remove if submitting request for a conversion or continuation.

[Signature Page Follows]


A10 NETWORKS, INC.
By:  

 

  Name:
  Title:


EXHIBIT I

RBC

Capital

Markets

ADMINISTRATIVE QUESTIONNAIRE

 

  Return form to:   Manager , Agency Services Group  
  Agent Address:   Royal Bank of Canada  
    20, King Street West  
    Toronto, ON  
    M5H 1C4  
  Facsimile:   416-842-4023  

It is very important that all of the requested information be completed accurately and that this questionnaire be returned promptly. If your institution is sub-allocating its allocation, please fill out an administrative questionnaire for each legal entity.

NOTE ON TAX DOCUMENTATION :

Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned prior to the first payment of income. Failure to provide the proper tax form when requested may subject your institution to tax withholding. For additional information on U.S. related Tax Documents, please refer to page two of this document.

Borrower name:

 

 

 

Legal Name of Lender and Location:

 

 

 

Type of Lender (please circle one):

Bank, Asset Manager, Broker/Dealer, CLO/CDO; Finance Company, Hedge Fund, Insurance, Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose Vehicle, Other - please specify: .                                                              

Lender Parent and Location:                                                                                           

 


RBC

Capital

Markets

US Related Tax Documents

NON-U.S. LENDER INSTITUTIONS :

If your institution is incorporated / organized within Canada for tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete Form W-8BEN (Certificate of Foreign Status of Beneficial Owner).

If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a.) Form W8BEN ( Certificate of Foreign Status of Beneficial Owner ), b.) Form W-8ECI ( Income Effectively Connected to a U.S. Trade or Business ), or c.) Form W-8EXP ( Certificate of Foreign Government or Governmental Agency ).

A U.S. taxpayer identification number is required for any institution submitting Form W-8ECI. It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with the U.S. Please refer to the instructions when completing the form applicable to your institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. An original tax form must be submitted .

II. Flow-Through Entities :

If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY ( Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding ) must be completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.

Please refer to the instructions when completing this form. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be submitted .

U.S. LENDER INSTITUTIONS :

If your institution is incorporated or organized within the United States, you must complete and return Form W-9 ( Request for Taxpayer Identification Number and Certification ). Please be advised that we request that you submit an original Form W-9 .


RBC

Capital

Markets

Credit Contacts/Notification Methods: Agreements, Waivers, Extensions, etc.

 

   

Primary Credit Contact

 

Secondary Credit Contact

Name:

 

 

 

 

Company:

 

 

 

 

Title:

 

 

 

 

Address:

 

 

 

 

 

 

 

 

Telephone:

 

 

 

 

Facsimile:

 

 

 

 

E-Mail Address:

 

 

 

 

Operations Contacts/Notification Methods: Borrowings, Paydowns, Interest, etc.

 

   

Primary Operations Contact

 

Secondary Operations Contact

Name:

 

 

 

 

Company:

 

 

 

 

Title:

 

 

 

 

Address:

 

 

 

 

 

 

 

 

Telephone:

 

 

 

 

Facsimile:

 

 

 

 

E-Mail Address:

 

 

 

 

For Schedule II/III Lenders – Please check appropriate option (Canadian Borrowings Only):

¨ Acceptance Lender                ¨ Non-Acceptance Lender (BA Equivalent)


RBC

Capital

Markets

 

Lender’s Canadian Wire Instructions   Lender’s US Wire Instructions

Bank Name:

    Bank Name:   

ABA/Routing No.:

    Swift/Routing No.:   

Account Name:

    Account Name:   

Account No.:

    Account No.:   

FFC Account Name:

    FFC Account Name:   

FCC Account No.:

    FCC Account No.:   

Attention:

    Attention:   

Reference:

    Reference:   
Lender’s Euro Wire Instructions   Lender’s Other Currency Wire Instructions

Bank Name:

    Currency:   

Swift/Routing No.:

    Bank Name:   

Account Name:

    Swift/Routing No.:   

Account No.:

    Account Name:   

FFC Account Name:

    Account No.:   

FCC Account No.:

    FFC Account Name:   

Attention:

    FCC Account No.:   

Reference:

    Attention:   
    Reference:   

Exhibit 10.25

A10 NETWORKS, INC.

CHANGE IN CONTROL AND SEVERANCE AGREEMENT

This Change in Control and Severance Agreement (the “ Agreement ”) is made and entered into by and between                     (“ Executive ”) and A10 Networks, Inc., a California corporation (the “ Company ”), effective as of             , 2014 (the “ Effective Date ”).

RECITALS

A. The Compensation Committee (the “ Committee ”) of the Board of Directors (the “ Board ”) of the Company believes that it is in the best interests of the Company and its shareholders to provide Executive with an incentive to continue Executive’s employment and to motivate Executive to maximize the value of the Company for the benefit of its shareholders.

B. The Committee believes that it is imperative to provide Executive with certain severance benefits upon Executive’s termination of employment under certain circumstances to help maintain Executive’s focus on his duties and responsibilities to the Company and to minimize the need of Executive to consider alternative employment opportunities. These benefits will provide Executive with enhanced financial security, incentive and encouragement to remain with the Company.

C. Certain capitalized terms used in the Agreement are defined in Section 6 below.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:

1. Term of Agreement . This Agreement will automatically terminate upon the date that all of the obligations of the parties hereto with respect to this Agreement have been satisfied.

2. At-Will Employment . The Company and Executive acknowledge that Executive’s employment is and will continue to be at-will, as defined under applicable law. As an at-will employee, either the Company or Executive may terminate the employment relationship at any time, with or without Cause. Upon any termination of employment, the Company will pay Executive all accrued but unpaid vacation, expense reimbursements, wages and other benefits due to Executive under any Company-provided plans, policies and arrangements (“ Accrued Compensation ”).

3. Severance Benefits .

(a) Termination Without Cause or Resignation for Good Reason Other Than During the Change in Control Period and More Than One Year After Executive’s Employment Start Date . If after the one-year anniversary of Executive’s commencement of employment with the Company (x) the Company terminates Executive’s employment with the Company without Cause and other than due to death or Disability, or (y) Executive resigns from his or her employment for Good Reason, and, in each case, such termination does not occur during the Change in Control Period, then subject to Section 4 and in addition to Accrued Compensation, Executive will receive the following:

(i) Continuing Severance Payments . Executive will be paid continuing payments of severance pay at a rate equal to Executive’s base salary rate, as in effect immediately prior to Executive’s termination of employment, for a period of [CEO: twelve (12) months / Other Executives:


nine (9) months].

(ii) Continuation Coverage . If Executive elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“ COBRA ”) within the time period prescribed pursuant to COBRA for Executive and Executive’s eligible dependents, then the Company will reimburse Executive for the COBRA premiums for such coverage (at the coverage levels in effect immediately prior to Executive’s termination) until the earlier of (A) a period of [CEO: twelve (12) months / Other Executives: nine (9) months] from the date of termination or (B) the date upon which Executive and/or Executive’s eligible dependents become covered under similar plans. Notwithstanding the foregoing, if the Company determines in its sole discretion that it cannot provide the COBRA reimbursement benefits without potentially violating, or being subject to an excise tax under, applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then in lieu thereof, the Company will provide to Executive a taxable monthly payment, payable on the last day of a given month (except as provided by the following sentence), in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue Executive’s group health coverage in effect on the termination of employment date (which amount will be based on the premium for the first month of COBRA coverage), which payments will be made regardless of whether Executive elects COBRA continuation coverage and will commence on the first month following Executive’s termination of employment and will end on the earlier of (x) the date upon which Executive obtains other employment or (y) the date the Company has paid an amount equal to [CEO: twelve (12) payments / Other Executives: nine (9) payments]. For the avoidance of doubt, any taxable payments in lieu of COBRA reimbursements may be used for any purpose, including, but not limited to continuation coverage under COBRA, and will be subject to all applicable tax withholdings.

(b) Termination Without Cause or Resignation for Good Reason During the Change in Control Period . If the Company terminates Executive’s employment with the Company without Cause and other than due to death or Disability, or if Executive resigns from his or her employment for Good Reason, and, in each case, such termination occurs during the Change in Control Period, then subject to Section 4 and the completion of the Change in Control, and in addition to Accrued Compensation, Executive will receive the following:

(i) Severance Payment . Executive will receive a lump-sum payment equal to [CEO: eighteen (18) months / Other Executives: twelve (12) months] of Executive’s annual base salary as in effect immediately prior to Executive’s termination date or, if greater, at the level in effect immediately prior to the Change in Control (as applicable).

(ii) Bonus Payment . Executive will receive a lump-sum payment equal to [CEO: one hundred fifty percent (150%) / Other Executives: one hundred percent (100%)] of the greater of (A) Executive’s target bonus as in effect for the Company’s fiscal year in which the Change in Control occurs (as applicable), or (B) Executive’s target bonus as in effect for the Company’s (or surviving company’s, as applicable) fiscal year in which Executive’s termination of employment occurs.

(iii) Continuation Coverage . If Executive elects continuation coverage pursuant to COBRA within the time period prescribed pursuant to COBRA for Executive and Executive’s eligible dependents, then the Company will reimburse Executive for the COBRA premiums for such coverage (at the coverage levels in effect immediately prior to Executive’s termination) until the earlier of (A) a period of [CEO: eighteen (18) months / Other Executives: twelve (12) months] from the date of termination or (B) the date upon which Executive and/or Executive’s eligible dependents become covered under similar plans. Notwithstanding the foregoing, if the Company determines in its sole discretion that it cannot provide the COBRA reimbursement benefits without potentially violating, or being subject to an excise tax under, applicable law (including, without limitation, Section 2716 of the Public Health Service

 

- 2 -


Act), then in lieu thereof, the Company will provide to Executive a taxable monthly payment, payable on the last day of a given month (except as provided by the following sentence), in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue Executive’s group health coverage in effect on the termination of employment date (which amount will be based on the premium for the first month of COBRA coverage), which payments will be made regardless of whether Executive elects COBRA continuation coverage and will commence on the first month following Executive’s termination of employment and will end on the earlier of (x) the date upon which Executive obtains other employment or (y) the date the Company has paid an amount equal to [CEO: eighteen (18) payments / Other Executives: twelve (12) payments]. For the avoidance of doubt, any taxable payments in lieu of COBRA reimbursements may be used for any purpose, including, but not limited to, continuation coverage under COBRA, and will be subject to all applicable tax withholdings.

(iv) Accelerated Vesting of Equity Awards . One hundred percent (100%) of Executive’s then-outstanding and unvested Equity Awards will become vested in full. If an outstanding Equity Award is to vest and/or the amount of the award to vest is to be determined based on the achievement of performance criteria, then the Equity Award will vest as to one hundred percent (100%) of the amount of the Equity Award assuming the performance criteria had been achieved at target levels for the relevant performance period(s).

In the event that Executive’s employment with the Company terminates in accordance with this Section 3(b) and such termination occurs prior to a Change in Control, then notwithstanding any provisions to the contrary set forth in any of Executive’s Equity Award agreements, (A) the Equity Award will remain outstanding until immediately prior to the Change in Control (provided that in no event will an Equity Award remain outstanding after the expiration of the Equity Award’s maximum term to expiration) notwithstanding that Executive’s status as a service provider to the Company has terminated, (B) any vesting acceleration under this subsection (iv) will be applied to Executive’s Equity Awards outstanding as of immediately prior to the Change in Control, and (C) any options and stock appreciation rights will remain outstanding and exercisable in accordance with, and for the post-termination exercisability period set forth in, the applicable Equity Award agreement as if Executive’s status as a service provider of the Company had ceased as of the Change in Control (provided that in no event will an Equity Award remain outstanding after the expiration of the Equity Award’s maximum term to expiration and, for the avoidance of doubt, subject to any earlier termination in accordance with the terms and conditions of the Company’s plan, including if applicable, its termination in connection with the Change in Control).

(c) Voluntary Resignation; Termination for Cause; Termination Prior to One-Year Anniversary of Employment Other than During Change in Control Period . If Executive’s employment with the Company terminates (i) voluntarily by Executive (other than for Good Reason) or (ii) for Cause by the Company, then Executive will not be entitled to receive severance or other benefits except for the Accrued Compensation and those severance or other benefits (if any) as may then be established under the Company’s then-existing written severance and benefits plans and practices or pursuant to other written agreements with the Company. In addition, if Executive’s employment with the Company terminates for any reason on or before the one-year anniversary of Executive’s commencement of employment with the Company but other than during the Change in Control Period, then Executive will not be entitled to receive severance or other benefits except for the Accrued Compensation and those severance or other benefits (if any) as may then be established under the Company’s then-existing written severance and benefits plans and practices or pursuant to other written agreements with the Company.

(d) Disability; Death . If the Company terminates Executive’s employment as a result of Executive’s Disability, or Executive’s employment terminates due to Executive’s death, Executive will not be entitled to receive any other severance or other benefits, except for the Accrued

 

- 3 -


Compensation and those severance or other benefits (if any) as may then be established under the Company’s then-existing written severance and benefits plans and practices or pursuant to other written agreements with the Company.

(e) Exclusive Remedy . In the event of a termination of Executive’s employment as set forth in Section 3(a) or 3(b) of this Agreement, the provisions of Section 3 are intended to be and are exclusive and in lieu of and supersede any other rights or remedies to which Executive or the Company otherwise may be entitled, whether at law, tort or contract, in equity, or under this Agreement (other than the payment of accrued but unpaid wages, as required by law, and any unreimbursed reimbursable expenses). Executive will be entitled to no benefits, compensation or other payments or rights upon a termination of employment other than those benefits expressly set forth in Section 3 of this Agreement.

4. Conditions to Receipt of Severance .

(a) Release of Claims Agreement . The receipt of any severance payments or benefits (other than any Accrued Compensation) pursuant to this Agreement (the “ Severance Benefits ”) is subject to Executive signing and not revoking the Company’s then-standard separation agreement and release of claims (the “ Release ”), which must become effective and irrevocable no later than the sixtieth (60th) day following Executive’s termination of employment (the “ Release Deadline Date ”). If the Release does not become effective and irrevocable by the Release Deadline Date, Executive will forfeit any right to the Severance Benefits. In no event will Severance Benefits be paid or provided, or in the case of installments, commence, until the Release actually becomes effective and irrevocable.

(b) Payment Timing Following Release .

(i) General Payment Timing . If the Release becomes effective and irrevocable by the Release Deadline Date, then subject to Section 4(d) below, Severance Benefits under this Agreement will be paid, or in the case of installments, will commence, on the first regularly scheduled payroll date that occurs after the Release Deadline Date (the “ Severance Start Date ”), but in no event later than March 15th of the calendar year following the calendar year in which Executive’s employment termination occurs, and any Severance Benefits otherwise payable to Executive during the period immediately following Executive’s termination of employment with the Company through the Severance Start Date will be paid in a lump sum to Executive on the Severance Start Date, with any remaining payments to be made as provided in this Agreement.

(ii) Overlapping Termination . For purposes of clarity, subject to Section 4(d) below, if (A) prior to a Change in Control, Executive incurs a termination of employment that qualifies Executive for Severance Benefits under Section 3(a), (B) the Release becomes effective and irrevocable by the Release Deadline Date, and (C) subsequent to Executive’s employment termination, a Change in Control occurs that qualifies Executive for Severance Benefits under Section 3(b) (the “ Overlapping Termination ”), then (1) any Severance Benefits under Section 3(a) will cease upon the Change in Control, and (2) Executive will be entitled to the Severance Benefits under Section 3(b) as follows: (I) a lump sum salary severance payment in the amount calculated and as described in Section 3(b)(i), but less any amount previously paid to Executive under Section 3(a)(i), (II) a lump sum bonus severance payment in the amount set forth and as described in Section 3(b)(ii), (III) the continued COBRA reimbursements for the number of months set forth and as described in Section 3(b)(iii), but less the number of months previously paid to Executive under Section 3(a)(ii) (or, if applicable, a taxable, lump sum cash payment of the amount calculated and as described in Section 3(b)(iii), less any taxable, lump sum cash payment previously paid under Section 3(a)(ii)), and (IV) the vesting acceleration as set forth under Section 3(b)(iv). Further, in the event of an Overlapping Termination, the additional Severance Benefits payable under Section 3(b) as specified in the immediately preceding sentence will be

 

- 4 -


paid, or in the case of installments, will commence, on the later of the Change in Control or the Severance Start Date (such later date, the “ Later Start Date ”), and any Severance Benefits otherwise payable to Executive during the period immediately following Executive’s termination of employment with the Company through the Later Start Date will be paid in a lump sum to Executive on the Later Start Date.

(c) Confidential Information and Invention Assignment Agreements . Executive’s receipt of any payments or benefits under Section 3 (other than any Accrued Compensation) will be subject to Executive continuing to comply with the terms of the any confidential information and invention assignment agreement executed by Executive in favor of the Company and the provisions of this Agreement.

(d) Section 409A .

(i) Notwithstanding anything to the contrary in this Agreement, no severance pay or benefits to be paid or provided to Executive, if any, pursuant to this Agreement that, when considered together with any other severance payments or separation benefits, are considered deferred compensation under Section 409A of the Code, and the final regulations and any guidance promulgated thereunder (“ Section 409A ”) (together, the “ Deferred Payments ”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of Section 409A. Similarly, no severance payable to Executive, if any, pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until Executive has a “separation from service” within the meaning of Section 409A.

(ii) It is intended that none of the severance payments under this Agreement will constitute Deferred Payments but rather will be exempt from Section 409A as a payment that would fall within the “short-term deferral period” as described in Section 4(d)(iv) below or resulting from an involuntary separation from service as described in Section 4(d)(v) below. In no event will Executive have discretion to determine the taxable year of payment of any Deferred Payment.

(iii) Notwithstanding anything to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s separation from service (other than due to death), then the Deferred Payments, if any, that are payable within the first six (6) months following Executive’s separation from service, will become payable on the first payroll date that occurs on or after the date six (6) months and one (1) day following the date of Executive’s separation from service. All subsequent Deferred Payments, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, in the event of Executive’s death following Executive’s separation from service, but before the six (6) month anniversary of the separation from service, then any payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Executive’s death and all other Deferred Payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment under Section 1.409A-2(b)(2) of the Treasury Regulations.

(iv) Any amount paid under this Agreement that satisfies the requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Payments for purposes of clause (i) above.

(v) Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit (as defined below) will not constitute Deferred Payments for purposes of clause (i) above.

 

- 5 -


(vi) The foregoing provisions are intended to comply with or be exempt from the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply or be exempt. For purposes of this Agreement, to the extent required to be exempt from or comply with Section 409A, references to Executive’s “termination of employment” or similar phrases will be references to Executive’s “separation from service” within the meaning of Section 409A. The Company and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition before actual payment to Executive under Section 409A. In no event will the Company reimburse Executive for any taxes that may be imposed on Executive as result of Section 409A.

5. Limitation on Payments . In the event that the payments and benefits provided for in this Agreement or other payments and benefits payable or provided to Executive (i) constitute “ parachute payments ” within the meaning of Section 280G of the Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s payments and benefits under this Agreement or other payments or benefits (the “ 280G Amounts ”) will be either:

(i) delivered in full, or

(ii) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code,

whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of 280G Amounts, notwithstanding that all or some portion of the 280G Amounts may be taxable under Section 4999 of the Code.

(a) Reduction Order . In the event that a reduction of 280G Amounts is being made in accordance with this Section 5, the reduction will occur, with respect to the 280G Amounts considered parachute payments within the meaning of Section 280G of the Code, in the following order:

(i) reduction of cash payments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the excise tax will be the first cash payment to be reduced);

(ii) cancellation of equity awards that were granted “contingent on a change in ownership or control” within the meaning of Code Section 280G in the reverse order of date of grant of the awards (that is, the most recently granted equity awards will be cancelled first);

(iii) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (that is, the vesting of the most recently granted equity awards will be cancelled first); and

(iv) reduction of employee benefits in reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first benefit to be reduced).

In no event will Executive have any discretion with respect to the ordering of payments.

 

- 6 -


(b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a nationally recognized accounting or valuation firm (the “ Firm ”) selected by the Company, whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs and make all payments for the Firm’s services relating to any calculations contemplated by this Section 5.

6. Definition of Terms . The following terms referred to in this Agreement will have the following meanings:

(a) Cause . “ Cause ” will mean:

(i) Executive’s repeated failure to perform his or her duties and responsibilities to the Company, or abide, in all material respects, with the policies of the Company after written notice from the Board or an officer of the Company describing in reasonable detail Executive’s failure to perform such duties or responsibilities or abide by such policies;

(ii) Executive’s engagement in illegal conduct that was or is injurious in any material respect to the Company;

(iii) Executive’s material violation or material breach of his or her [Confidential Information and Invention Assignment] with the Company that is not cured within twenty (20) days of written notice thereof or is incapable of cure; or

(iv) Executive’s conviction of, or entry of a plea of guilty or nolo contendere to, a felony (other than motor vehicle offenses the effect of which do not materially impair Executive’s performance of his employment duties) or any crime involving fraud, embezzlement or other offense which involves moral turpitude, and/or committing any act of embezzlement, dishonesty or fraud against, or the misappropriation of material property belonging to, the Company.

The foregoing definition does not in any way limit the Company’s ability to terminate Executive’s employment relationship at any time as provided in Section 2 above, and the term “Company” will be interpreted to include any subsidiary, parent, affiliate or successor thereto, if applicable.

(b) Change in Control. Change in Control ” means the occurrence of any of the following events:

(i) A change in the ownership of the Company which occurs on the date that any one person, or more than one person acting as a group within the meaning of Section 13(d) of the Exchange Act (“ Person ”), acquires ownership of the stock of the Company that, together with the stock already held by such Person, constitutes more than fifty percent (50%) of the total voting power of the stock of the Company; or

(ii) A change in the effective control of the Company which occurs on the date that a majority of members of the Board is replaced during any twelve (12) month period by Directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or

 

- 7 -


(iii) A change in the ownership of a substantial portion of the Company’s assets which occurs on the date that any Person acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions; provided, however, that for purposes of this subsection (iii), the following will not constitute a change in the ownership of a substantial portion of the Company’s assets: (A) a transfer to an entity that is controlled by the Company’s stockholders immediately after the transfer, or (B) a transfer of assets by the Company to an entity, fifty percent (50%) or more of the total value or voting power of which is owned, directly or indirectly, by the Company. For purposes of this subsection (iii), gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.

For the avoidance of doubt, a transaction will not constitute a Change in Control if: (i) its sole purpose is to change the state of the Company’s incorporation, or (ii) its sole purpose is to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.

(c) Change in Control Period . “ Change in Control Period ” will mean, subject to the completion of the Change in Control, the period beginning on the date on which an agreement to enter into such Change in Control has been signed and executed by the relevant parties, and ending on the date twelve (12) months following such Change in Control.

(d) Code . “ Code ” will mean the Internal Revenue Code of 1986, as amended.

(e) Disability . “ Disability ” will mean Executive’s inability to perform the essential functions of his or her job due to a Permanent and Total Disability as defined under Section 22(e)(3) of the Code.

(f) Equity Awards . “ Equity Awards ” will mean Executive’s outstanding stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares, performance share units and any other Company equity compensation awards.

(g) Good Reason . “ Good Reason ” will mean Executive’s voluntary termination of employment with the Company within ninety (90) days following the expiration of any Company cure period (discussed below) following one or more of the following occurring without Executive’s prior written consent:

(i) a material reduction by the Company in Executive’s gross base salary, as in effect immediately prior to such reduction other than in connection with a similar reduction for all similarly-situated employees of the Company;

(ii) a material reduction by the Company in Executive’s authority, duties, or responsibilities; or

(iii) relocation of Executive’s principal place of work to a location that is more than fifty (50) miles from Executive’s current principal work site for the Company;

Executive may not resign for Good Reason without first providing the Company with written notice within sixty (60) days of the initial existence of the condition that Executive believes constitutes Good Reason specifically identifying the acts or omissions constituting the grounds for Good Reason and a

 

- 8 -


reasonable cure period of not less than thirty (30) days following the date of such notice, during which such grounds must not have been cured.

For purposes of the “Good Reason” definition, the term “Company” will be interpreted to include any subsidiary, parent, affiliate or successor thereto, if applicable.

(h) Section 409A Limit . “ Section 409A Limit ” will mean two (2) times the lesser of: (i) Executive’s annualized compensation based upon the annual rate of pay paid to Executive during Executive’s taxable year preceding Executive’s taxable year of Executive’s termination of employment as determined under, and with such adjustments as are set forth in, Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or (ii) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Executive’s employment is terminated.

7. Successors .

(a) The Company’s Successors . Any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets will assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” will include any successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this Section 7(a) or which becomes bound by the terms of this Agreement by operation of law.

(b) Executive’s Successors . The terms of this Agreement and all rights of Executive hereunder will inure to the benefit of, and be enforceable by, Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.

8. Notice .

(a) General . Notices and all other communications contemplated by this Agreement will be in writing and will be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. Mailed notices to Executive will be addressed to Executive at the home address which Executive most recently communicated to the Company in writing. In the case of the Company, mailed notices will be addressed to its corporate headquarters, and all notices will be directed to the attention of its Secretary.

(b) Notice of Termination . Any termination by the Company for Cause or by Executive for Good Reason will be communicated by a notice of termination to the other party hereto given in accordance with Section 8(a) of this Agreement. Such notice will indicate the specific termination provision in this Agreement relied upon, will set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination under the provision so indicated, and will specify the termination date (which will be not more than thirty (30) days after the giving of such notice).

9. Resignation . Upon the termination of Executive’s employment for any reason, Executive will be deemed to have resigned from all officer and/or director positions held at the Company and its affiliates voluntarily, without any further required action by Executive, as of the end of Executive’s employment and Executive, at the Board’s request, will execute any documents reasonably necessary to reflect Executive’s resignation.

 

- 9 -


10. Miscellaneous Provisions .

(a) No Duty to Mitigate . Executive will not be required to mitigate the amount of any payment contemplated by this Agreement, nor will any such payment be reduced by any earnings that Executive may receive from any other source.

(b) Waiver . No provision of this Agreement will be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by an authorized officer of the Company (other than Executive). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party will be considered a waiver of any other condition or provision or of the same condition or provision at another time.

(c) Headings . All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement.

(d) Entire Agreement . This Agreement constitutes the entire agreement of the parties hereto and supersedes in their entirety all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties, including but not limited to the Offer Letter entered into between you and the Company dated [DATE], and any accelerated vesting and post-termination exercisability provisions set forth in your equity award agreements (to the extent modified by this Agreement), in each case with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the parties hereto and which specifically mention this Agreement.

(e) Choice of Law . The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of California (with the exception of its conflict of laws provisions). Any claims or legal actions by one party against the other arising out of the relationship between the parties contemplated herein (whether or not arising under this Agreement) will be commenced or maintained in any state or federal court located in Santa Clara County, California, and Executive and the Company hereby submit to the jurisdiction and venue of any such court.

(f) Severability . The invalidity or unenforceability of any provision or provisions of this Agreement will not affect the validity or enforceability of any other provision hereof, which will remain in full force and effect.

(g) Withholding . All payments made pursuant to this Agreement will be subject to withholding of applicable income, employment and other taxes.

(h) Counterparts . This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

 

- 10 -


IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the day and year first set forth above.

 

COMPANY     A10 NETWORKS, INC.
    By:  

 

    Title:  

 

EXECUTIVE     [NAME]
   

 

    (Signature)
    Date:  

 

 

- 11 -

Exhibit 21.1

SUBSIDIARIES OF A10 NETWORKS, INC.

 

Name

  

Jurisdiction of Incorporation

A10 Networks, Anguilla, Ltd.

   Anguilla

A10 Networks (Australia) Pty Ltd.

   Australia

A10 Networks Government, Inc.

   Delaware

A10 Networks Inc. (Beijing)

   China

A10 Netwoks, Inc. - Taiwan

   Taiwan, Republic of China

A10 Networks Israel Ltd.

   Israel

A10 Networks, KK

   Japan

A10 Networks Limited

   United Kingdom

A10 Networks Singapore Pte. Ltd.

   Singapore

Shanghai A10 Networks Technology Co., Ltd.

   China

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the use in this Amendment No. 1 to Registration Statement No. 333-194015 on Form S-1 of our report dated February 18, 2014 (except for Note 15, as to which the date is March 7, 2014) relating to the consolidated financial statements of A10 Networks, Inc. and subsidiaries (the “Company”) appearing in the Prospectus, which is part of this Registration Statement.

 

We also consent to the reference to us under the heading “Experts” in such Prospectus.

 

/s/ Deloitte & Touche LLP

 

San Jose, California

March 7, 2014