EX-4.3.1 8 d229773dex431.htm AMENDMENT TO THE AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT Amendment to the Amended and Restated Investors' Rights Agreement

Exhibit 4.3.1

AUDIENCE, INC.

AMENDMENT TO THE AMENDED AND RESTATED

INVESTORS’ RIGHTS AGREEMENT

This amendment (the “Amendment”) to the Amended and Restated Investors’ Rights Agreement is made as of June 24, 2011 (the “Existing Agreement”), by and among Audience, Inc., a California corporation (the “Company”), Lloyd Watts, Ph.D. (the “Founder”), and certain holders of the Company’s Preferred Stock, as set forth on Exhibit B to the Existing Agreement, including holders of the Series A-1 Preferred Stock (the “Series A-1 Holders”), Vulcan Ventures Inc. (the “Series A-2 Holder”), holders of the Company’s Series A-3 Preferred Stock (the “Series A-3 Holders”), holders of the Company’s Series AA Preferred Stock (the “Series AA Holders”), holders of the Company’s Series AA-1 Preferred Stock listed (the “Series AA-1 Holders”), holders of the Company’s Series B Preferred Stock (the “Series B Holders”), holders of the Company’s Series B-1 Preferred Stock (the “Series B-1 Holders”), holders of the Company’s Series C Preferred Stock (the “Series C Holders”), and holders of the Company’s Series D Preferred Stock (the “Series D Holders”), and holders of the Company’s Series E Preferred Stock (the “Series E Holders,” and collectively, the “Investors”).

RECITALS

WHEREAS, the Company and the Investors entered into that certain Amended and Restated Investors’ Rights Agreement, dated as of February 3, 2010 (the “Agreement”);

WHEREAS, the Company has adopted a new 2011 Equity Incentive Plan and issued additional options thereunder;

WHEREAS, the Investors wish to exclude all options and other securities issued or issuable under the 2011 Equity Incentive Plan from the right of first offer set forth in the Agreement;

WHEREAS, Section 3.4 of the Agreement provides that the Agreement may be amended or modified only upon written consent of the Company and the Investors holding at least 65% of the capital stock then held by the Investors as a group; and

WHEREAS, the Company and the undersigned Investors representing greater than 65% of the capital stock held by the Investors desire to amend the Agreement as follows:

AGREEMENT

1.      Section 2.3(d)(ii) of the Agreement is amended to read as follows:


“up to 159,117,552 shares (subject to adjustment for stock splits, stock dividends, reclassification or the like) of Common Stock or Common Stock Derivatives to employees, consultants or directors of the Company pursuant to a stock option plan or restricted stock plan approved by the Board of Directors;”

2.      Except as specified in this Amendment, all terms and conditions of the Agreement shall continue in full force and effect.

3.      This Amendment may not be altered, amended or modified in any way other than pursuant to Section 3.4 of the Agreement.

4.      This Amendment shall be governed in all respects by the internal laws of the State of California, as applied to agreements entered into among California residents to be performed entirely within California, without regard to principles of conflicts of law.

5.      This amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.

(Remainder of page intentionally left blank)


The parties have executed this Amendment to the Amended and Restated Investors’ Rights Agreement as of the date first above written.

 

COMPANY
AUDIENCE, INC,
By:   

/s/ Peter Santos

   Peter Santos. President and CEO
Address:   

440 Clyde Avenue

Mountain View, CA 94043

 

FOUNDER:
  

 

Lloyd Watts, Ph.D.

Address:

  

440 Clyde Avenue

Mountain View, CA 94043

 

 

 

 

 

 

SIGNATURE PAGE TO AMENDED AND RESTATED

INVESTORS’ RIGHTS AGREEMENT


The parties have executed this Amendment to the Amended and Restated Investors’ Rights Agreement as of the date first above written.

 

COMPANY
AUDIENCE, INC.

By:

 

 

Peter Santos. President and CEO

 

Address:

 

1330 Villa Street

Mountain View, CA 94041

 
FOUNDER:
 

/s/ Lloyd Watts

Lloyd Watts, Ph. D.

Address:

 

1330 Villa Street

Mountain View, CA 94041

 

 

 

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTORS
Tallwood I, L.P.

By Tallwood Management Co., LLC

Its general partner

By:

 

/s/ George Pavlov

George Pavlov

  General Partner
Tallwood III, L.P.
Tallwood III Partners, L.P.
Tallwood III Associates, L.P.

By Tallwood III Management, LLC

Its general partner

By:

 

/s/ George Pavlov

George Pavlov

  General Partner

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTORS

Tallwood II, L.P.

Tallwood II Partners, L.P.

Tallwood II Associates, L.P.

By Tallwood II Management, LLC

Its general partner

By:

    

/s/ George Pavlov

    

George Pavlov

General Partner

 

 

 

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTORS
New Enterprise Associates 11, Limited Partnership
By its general partner, NEA Partners 11, Limited
             Partnership
By its general partner, NEA 11 GP, LLC
By:   

/s/ Louis S. Citron

   Name: Louis S. Citron
   Title: Chief Legal Officer
NEA Ventures 2006, Limited Partnership
By:   

/s/ Louis S. Citron

   Name: Louis S. Citron
   Title: Vice President
Address:    [address]
  

 

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


Vulcan Ventures Incorporated

By:

 

/s/ William L. McGrath

  William L. McGrath, Vice President
  Vice President
Vulcan Capital Venture Capital I LLC

By:     Vulcan Capital Venture Capital Management I

LLC,

            its Manager

By:

  Vulcan Ventures Incorporated,
  its Managing Member

By:

 

/s/ William L. McGrath

  William L. McGrath, Vice President

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Richard Stern

Signature

Richard Stern

Print Name

6/24/11

Date Signed

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Carlos Avendano

Signature

Carlos Avendano

Print Name

6/23/2011

Date Signed

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ William W. Hoppin

Signature

William W. Hoppin

Print Name

6/23/11

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Pamela H. Johnson

Signature

Pamela H. Johnson, Trustee of Pamela H.

Johnson Revocable Trust

Print Name

6/23/11

Date Signed

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ George Apostol, Jr.

Signature

George Apostol, Jr.

Print Name

June 22, 2011

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Carver A. Mead

Signature

Carver A. Mead

Print Name

6/22/11

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Donald G. Watt

Signature

Donald G. Watt

Print Name

June 13, 2011

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ James Huey

Signature

James Huey

Print Name

06/20/2011

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Carlos Murgia

Signature

Carlos Murgia

Print Name

06/20/2011

Date Signed

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Joanne Pontis

Signature

Joanne Pontis

Print Name

6-16-11

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

Barry Cox

/s/ Barry Cox

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Matthew M. Cowan

Signature

Matthew M. Cowan

Print Name

6/17/2011

Date Signed

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ William F. Kurtz

Signature

William F. Kurtz

Print Name

6/15/2011

Date Signed

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Robert G. Hiller

Signature

Robert G. Hiller

Print Name

13 June 2011

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Donata Oertel Sugden

Signature

Donata Oertel Sugden

Print Name

June 9, 2011

Date Signed

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Patricia Birks

Signature

Patricia Birks

Print Name

June 13, 2011

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ David M. Moore

Signature

David M. Moore

Print Name

6/14/11

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Valery Watts

Signature

Valery Watts

Print Name

June 14, 2011

Date Signed

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Eric Knudsen

Signature

Eric Knudsen

Print Name

6/14/11

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]


INVESTOR

/s/ Dennis G. Sabo

Signature

Dennis G. Sabo

Print Name

6/20/2011

Date Signed

 

 

 

 

 

 

 

 

 

[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]