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As filed with the Securities and Exchange Commission on May 19, 2014.
Registration No. 333-          

 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933

GOPRO, INC.
(Exact name of registrant as specified in its charter)

Delaware	 	3600	 	77-0629474	
(State or other jurisdiction of
incorporation or organization)	 	(Primary standard
industrial code number)	 	(I.R.S. employer
identification no.)	

Copies to:
GoPro, Inc.
3000 Clearview Way
San Mateo, California 94402
(650) 332-7600
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

Nicholas Woodman
Chief Executive Officer and President
GoPro, Inc.
3000 Clearview Way
San Mateo, California 94402
(650) 332-7600
(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Michael T. Esquivel, Esq.
Cynthia C. Hess, Esq.
Daniel J. Winnike, Esq.
Fenwick & West LLP
801 California Street
Mountain View, CA 94041
(650) 988-8500	 	Sharon Zezima, Esq.
GoPro, Inc.
3000 Clearview Way
San Mateo, California 94402
(650) 332-7600	 	Robert G. Day, Esq.
Allison B. Spinner, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300	

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.

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 of 1933, 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 of 1933, 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 of 1933, 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 of 1933, 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 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	 	Proposed
Maximum
Aggregate
Offering Price(1)(2)	 	Amount of
Registration Fee	
Class A common stock, par value $0.0001 per share	 	$100,000,000	 	$12,880	

 
(1)	Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933.	
(2)	Includes the offering price of shares that the underwriters have the option to purchase to cover over-allotments, if any.	

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 that 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.

 

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The information in this prospectus is not complete and may be changed. Neither we nor the selling stockholders may 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 neither we nor the selling stockholders are soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
 
Subject to completion, dated             , 2014
Prospectus
             shares

Class A common stock
This is an initial public offering of shares of Class A common stock by GoPro, Inc. We are selling              shares of Class A common stock, and the selling stockholders are selling              shares of Class A common stock. We will not receive any proceeds from the sale of shares by the selling stockholders. The estimated initial public offering price is expected to be between $             and $             per share.
We have two classes of outstanding common stock, Class A common stock and Class B common stock. Each share of Class B common stock is entitled to 10 votes and is convertible at any time into one share of Class A common stock. The holders of our outstanding Class B common stock will hold approximately     % of the voting power of our outstanding capital stock following this offering, with our executive officers and directors and their affiliates holding approximately     % and Nicholas Woodman, our Chief Executive Officer, holding approximately     %.
Prior to this offering there has been no public market for our common stock. We have applied to list our Class A common stock on the NASDAQ Global Select Market under the symbol “GPRO.”
We are an “emerging growth company” as defined under the federal securities laws. Investing in our Class A common stock involves a high degree of risk. See “ Risk factors ” beginning on page 17.

   	    	Per share	 	    	Total	 	
			
Initial public offering price	    	$	                	  	    	$	                	  	
			
Underwriting discounts and commissions(1)	    	$	 	  	    	$	 	  	
			
Proceeds to GoPro, Inc., before expenses	    	$	 	  	    	$	 	  	
			
Proceeds to selling stockholders	    	$	 	  	    	$	 	  	
 
(1)	 	See “Underwriting” for a description of the compensation payable to the underwriters.	
We and the selling stockholders have granted the underwriters an option for a period of 30 days to purchase from us and them up to                      additional shares of Class A common stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed on the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The underwriters expect to deliver the shares of Class A common stock to purchasers on                     , 2014.

J.P. Morgan	 	Citigroup	 	 	Barclays	  	
			
Allen & Company LLC	 	Stifel	 	 	Baird	  	
			
MCS Capital Markets	 	Piper Jaffray	 	 	Raymond James	  	
                , 2014

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Gopro® Be a HERO.

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Enabling The World To Capture And Share Its Passion. Gopro® Be a HERO.

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Prospectus summary	  	 	1	  	
		
Risk factors	  	 	17	  	
		
Special note regarding forward-looking statements and industry data	  	 	43	  	
		
Use of proceeds	  	 	45	  	
		
Dividend policy	  	 	45	  	
		
Capitalization	  	 	46	  	
		
Dilution	  	 	49	  	
		
Selected consolidated financial data	  	 	52	  	
		
Management’s discussion and analysis of financial condition and results of operations	  	 	55	  	
		
Business	  	 	87	  	
		
Management	  	 	107	  	
		
Executive compensation	  	 	115	  	
		
Certain relationships and related person transactions	  	 	127	  	
		
Principal and selling stockholders	  	 	131	  	
		
Description of capital stock	  	 	134	  	
		
Shares eligible for future sale	  	 	140	  	
		
Certain material U.S. federal income tax considerations for non-U.S. holders of Class A common stock	  	 	143	  	
		
Underwriting	  	 	148	  	
		
Conflicts of interest	  	 	156	  	
		
Legal matters	  	 	156	  	
		
Experts	  	 	156	  	
		
Where you can find additional information	  	 	156	  	
		
Index to consolidated financial statements	  	 	F-1	  	
 
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You should rely only on the information contained in this prospectus or contained in any free writing prospectus filed with the Securities and Exchange Commission. Neither we, the selling stockholders nor the underwriters have authorized anyone to provide you with additional information or information different from that contained in this prospectus or in any free writing prospectus filed with the Securities and Exchange Commission. 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, our Class A 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 any sale of shares of our Class A common stock. Our business, financial condition, results of operations and prospects may have changed since that date.
Through and including                 , 2014 (25 days after the commencement of this offering), all dealers that buy, sell or trade shares of our Class A common stock, whether or not participating in this offering, may be required to deliver a prospectus. This delivery requirement is in addition to the dealers’ obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
For investors outside the United States: Neither we, the selling stockholders nor any of 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. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of Class A common stock and the distribution of this prospectus outside the United States.
 
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 Prospectus summary
This summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information you should consider before investing in our Class A common stock. You should read the entire prospectus carefully, including “Risk factors,” ”Management’s discussion and analysis of financial condition and results of operations” and our consolidated financial statements and related notes included elsewhere in this prospectus, before making an investment decision.
Company overview

GoPro is transforming the way consumers capture, manage, share and enjoy meaningful life experiences. We do this by enabling people to capture compelling, immersive photo and video content of themselves participating in their favorite activities. Our customers include some of the world’s most active and passionate people. The volume and quality of their shared GoPro content, coupled with their enthusiasm for our brand, are virally driving awareness and demand for our products. To date, we have generated substantially all of our revenue from the sale of our cameras and accessories and we believe that the growing adoption of our capture devices and the engaging content they enable, position GoPro to become an exciting new media company.
What began as an idea to help athletes document themselves engaged in their sport has become a widely adopted solution for people to document themselves engaged in their interests, whatever they may be. From extreme to mainstream, professional to consumer, GoPro has enabled the world to capture and share its passions, and the world, in turn, is enabling GoPro to become one of the most exciting and aspirational companies of our time.
In 2011, 2012, 2013 and the three months ended March 31, 2014, we generated revenue of $234.2 million, $526.0 million, $985.7 million and $235.7 million and reported net income of $24.6 million, $32.3 million, $60.6 million and $11.0 million, respectively.

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Our business focus
Enabling engaging content is at the core of our business. We develop hardware and software solutions to alleviate consumer pain points associated with capturing, managing, sharing and enjoying engaging content.
Capture
Our mountable and wearable cameras and accessories, which we refer to as capture devices, enable professional-quality capture and exceptional versatility at affordable prices. Our products’ small, lightweight, yet durable designs make them easy to use even in highly challenging situations. In addition, our remote control solutions and our seamless integration with mobile devices via the GoPro App, our mobile application, enable engaging self-capture during virtually any activity.
Since launching our first high-definition, or HD, capture device in July 2009, we have sold more than 8.5 million HD cameras, including more than 3.8 million in 2013. We sell our products in over 100 countries and through more than 25,000 retail stores. According to The NPD Group’s Retail Tracking Service, GoPro was the #1 selling camcorder (by dollars and units) and a top six selling camera accessory company (by dollars and units) in the United States in 2013. Also according to The NPD Group, our HERO cameras represented a 45% share of the U.S. camcorder market (by dollars) in 2013, up from an 11% share during December 2011 and our camera accessories represented a 4% share of the U.S. camera accessory market (by dollars) in 2013.
Manage
We seek to eliminate the pain point of managing content by making it easy for our customers to transfer footage from their cameras to a system that efficiently organizes their content and facilitates convenient editing and sharing. GoPro Studio, our desktop application, and the GoPro App, reflect the early stages of our content management platform strategy.
GoPro Studio enables our customers to quickly edit simple or complex videos and create videos from time-lapse photo sequences. As of March 31, 2014, there had been more than 4.3 million downloads of GoPro Studio. During the first quarter of 2014, our customers in the aggregate exported, on average, 20,000 videos per day using GoPro Studio.
In addition to facilitating full camera control from a mobile device, the GoPro App enables a customer to easily and wirelessly copy footage from a GoPro camera to a mobile device for storage and sharing without a computer.
Share
By facilitating the capture, management and editing of engaging photos and videos, we are ultimately helping our customers share more compelling personal content. GoPro Studio and the GoPro App facilitate the posting of photos and videos directly to leading social networks and content platforms, including Facebook, Instagram, Twitter, Vimeo and YouTube. Thousands of GoPro customer photos and videos are shared daily, driving awareness and enthusiasm for our customers’ content, as well as for GoPro’s own brand and products. In 2013, our customers uploaded to YouTube approximately 2.8 years worth of video featuring “GoPro” in the title. Also on YouTube, in the first quarter of 2014, there was an average of 6,000 daily uploads and more than 1.0 billion views representing over 50.0 million watched hours of videos with “GoPro” in the title, filename, tags or description.

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Enjoy
GoPro enables the production of entertaining and inspiring content, both in the form of our customers’ user-generated content, or UGC, as well as GoPro originally produced content, that we collectively refer to as GoPro programming. This often features professional athletes, celebrities and entertainers, as well as everyday people engaged in their favorite activities. Having recognized the role GoPro content plays in attracting and exciting consumers, we are expanding the distribution of GoPro programming to engage and build relationships with even those consumers who do not own a GoPro capture device.
We distribute GoPro programming through what we refer to as the GoPro Network, a collection of GoPro Channels hosted on a variety of platforms, including the following:
 
Ÿ 	 	Facebook: over 7.2 million “likes;”	
 
Ÿ 	 	Instagram: over 2.0 million followers;	
 
Ÿ 	 	Twitter: over 950,000 followers; and	
 
Ÿ 	 	YouTube: over 450 million video views, over 1.8 million subscribers and ranked #1 on the Brand Channel Leaderboard for January through March 2014.	
As of December 31, 2013, we had not derived revenue from the distribution of, or social engagement with, our content on the GoPro Network. However, we plan to pursue new revenue opportunities from the distribution of engaging GoPro content in the near term. For example, in the first quarter of 2014, we entered into an agreement with Microsoft to develop and launch the GoPro Channel on Xbox Live, a leading delivery system for IP video streams on connected televisions, that will provide us with access to advertising revenue, fees from third-party sponsorship of the GoPro Channel and the ability to sell our capture devices directly to consumers as they watch GoPro programming. We expect to begin earning revenue from GoPro Channel advertising and sponsorship opportunities on Xbox Live and GoPro Channel advertising on YouTube and Virgin America in the second quarter of 2014. We do not expect the revenue earned from these GoPro Channels to be material to us in 2014.
The virtuous cycle
We believe our business focus results in a virtuous cycle and a self-reinforcing consumer acquisition model that fuels our growth. Our products in the hands of our customers enable compelling, authentic content that organically increases awareness for GoPro and drives demand for our products.
The GoPro opportunity
We believe the following create an attractive market opportunity for GoPro.
Consumers want an easy way to self-capture engaging content
Before GoPro, if people wanted compelling, high-quality footage of themselves engaged in activities, they needed a skilled third-party camera operator and often required expensive, fragile and cumbersome camera equipment.

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GoPro has enabled a new era of convenient self-documentation. Our products’ high-performance features, ease of use and versatility, made available at affordable price points, provide a premium-quality self-capture solution that appeals to both consumers and professionals.
Consumers want a quick, easy way to manage, edit and share their content
Managing, editing and sharing engaging, high-quality content often requires substantial time, resources and skill. GoPro Studio and the GoPro App begin to address these pain points by offering intuitive, easy-to-use tools for managing, editing and sharing professional-grade footage. As social media and content sharing outlets like Facebook, Instagram, Twitter, Vimeo and YouTube proliferate, we see an opportunity to further develop our currently separate software solutions into an integrated and enhanced GoPro content management platform.
Consumers continue to replace traditional cameras with mobile devices
As mobile devices continue to displace traditional cameras and camcorders, we believe consumers will seek capture devices that offer differentiated capabilities like GoPro products. Moreover, we believe mobile devices complement our products. With the GoPro App, mobile devices can be used to remotely control GoPro cameras, thereby optimizing customers’ ability to self-capture high-quality content of themselves and their activities. The GoPro App also enables customers to manage and share their captured content without the need for a computer. Furthermore, smartphones and tablets expand consumers’ ability to access and enjoy GoPro content online.
Consumers want compelling content on demand
We believe consumer demand for compelling content combined with GoPro’s self-capture technology and the explosive popularity of social media create a significant media opportunity for GoPro. GoPro programming has developed a dedicated and growing audience. We believe GoPro is well-positioned to become the first media company whose content is captured exclusively using its own hardware. We will continue to expand our distribution of GoPro programming and the reach of the GoPro Network to new platforms such as Xbox Live.
What makes GoPro unique
Category-defining self-capture devices
Our capture devices offer our customers, both consumers and professionals, exceptional capabilities that have earned us multiple awards, including a 2013 technical Emmy Award. Our cameras’ small, lightweight, yet durable designs make them easy to use even in highly challenging situations, and along with their affordable prices, encourage adoption and experimentation that often leads to interesting content. In addition, our broad portfolio of mountable and wearable accessories enables multiple use cases and facilitates a differentiated self-capture experience than that of traditional cameras and smartphones. Our products have been embraced by media professionals and are used in production by The Discovery Channel, ESPN and other networks.
Passionate consumer- and content-supported business model
Our business model is supported by some of the world’s most active and influential consumers who use GoPro to capture and share their life experiences and interests. Their shared content

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excites and inspires others around the world to do the same, which we believe, leads to higher camera and accessory sales and, in turn, a massive volume of UGC.
Best-in-class marketing relationships
GoPro has established marketing relationships with more than 120 athletes, celebrities and entertainers, and sponsors more than 90 sporting events annually, including the X Games, Supercross and ASP world surfing championship events. We partner with athletes such as Olympic gold medal winning snowboarder Shaun White and 11-time world champion surfer Kelly Slater, as well as entertainers, such as Foo Fighters, Jane’s Addiction, Guy Fieri and Alton Brown, and producers of popular television shows. We also have promotional agreements with recreational destination resorts, such as all Vail Company resorts and the Whistler Blackcomb resort. Validating the quality of our products and our growing role as a media brand, we are approached by professionals and organizations seeking to leverage GoPro as a media platform to distribute their own branded content captured with our products.
Differentiated sales strategy with specialty retailers
Since our first sale in 2004, our distribution strategy has focused on specialty retailers, including surf, ski and motorsports outlets, where we believe GoPro is often the only capture device sold in-store. Our early, first-mover relationships with these retailers and their customers helped us establish an authenticity that remains a cornerstone of our business. This focus on the specialty retail channel has also enabled us to develop a high-touch, differentiated sales network of more than 25,000 stores globally that we believe is difficult to replicate.
Strong, global brand
Over the past 10 years, we have built a powerful brand that is emblematic of the pursuit and celebration of human passion. Our trademarks, “GoPro” and “Be a Hero,” are relevant and aspirational to consumers, as reflected in the variety of our customers’ shared content, which spans from our roots in action sports to now include family, travel, music, science and other areas of human interest. The strength of our brand is further evidenced by our customers’ frequent tagging, titling and describing of their footage as “GoPro” content.
A company culture built around our vision
GoPro was founded by dedicated sports enthusiasts who wanted a better way to document and share their personal passions. As we have grown, we have remained focused on hiring employees who share this same ethos, whatever their personal interests may be. We have built a team focused on developing innovative solutions to the problems we encounter during our own self-capture pursuits, and we believe our employees’ shared passion, experience and vision represent an increasingly important competitive advantage.

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Our strategy
We intend to expand our existing capture business with content management, editing and sharing solutions to provide increased value to our customers, introduce new revenue streams and further differentiate us from competitors. Key components of our strategy include the following:
Continue to introduce innovative capture devices
We relentlessly pursue our goal of developing the world’s most versatile capture devices and enabling self-capture during any activity. To stay at the forefront of our industry, we are focused on continued product innovation and leadership. Areas of innovation include custom sensor and digital signal processing technologies as well as custom lens, audio, battery and accessory design.
Develop seamless content management, editing and sharing solutions
We are developing an integrated content management platform to simplify the organizing, editing and sharing of engaging content. Our October 2013 acquisition of General Things Inc., a web development firm, has provided us with additional software competencies to accelerate this process. In addition, we may seek to leverage our content management platform as a new revenue stream.
Scale as a media brand
We are investing to scale GoPro as a media entity and develop new revenue opportunities by increasing production of GoPro originally produced content while simultaneously increasing the aggregation and redistribution of our customers’ “best of” UGC. Additionally, we are investing to develop, distribute and promote GoPro programming on additional partner platforms such as Virgin America and Xbox Live.
Expand into new vertical markets
Leveraging the product development and sales and marketing strategies that have enabled us to be a leader in vertical markets such as skiing, surfing and motorsports, we are targeting new vertical markets where we believe GoPro can authentically deliver meaningful solutions to consumers.
Grow internationally
We believe that international markets represent a significant growth opportunity for us. We plan to capitalize on the strength of our brand to increase our presence worldwide through additional retailers and strategic distribution partnerships.
Expand in-store brand and sales footprint
We invest heavily to produce GoPro-branded, video-enabled point of purchase, or POP, merchandising displays that we make available to nearly all of the retail outlets through which our products are sold. Having recognized our sales success in these stores, coupled with our expanding product portfolio, we are working with our retailers to further expand the footprint of our POP displays.

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Extend strategic marketing relationships
We form relationships with marketing partners that use our products and services to promote their own brands and properties. As a result, GoPro benefits not only from the expanded brand awareness that traditionally comes with such marketing partnerships, but also from being recognized as our partners’ technology enabler. We will continue developing and leveraging strategic marketing relationships to increase GoPro brand awareness.
Expand brand awareness through increased advertising 
Notwithstanding the visibility we have gained in the consumer markets where we have historically focused, we believe consumers in many other markets are not familiar with our brand and products. We believe this underscores a significant opportunity for GoPro to expand awareness through increased advertising on television, in print, online, and on billboards and other out of home advertising, while continuing to scale our promotional marketing efforts and trade show presence.
Risk factors
Investing in our Class A common stock involves a high degree of risk. You should carefully consider the risks highlighted in the section titled “Risk factors” following this prospectus summary before making an investment decision. These risks include:
 
Ÿ 	 	We operate in a highly competitive market and the size and resources of some of our competitors may allow them to compete more effectively than we can, which could result in a loss of our market share and a decrease in our revenue and profitability.	
 
Ÿ 	 	We depend on sales of our capture devices for substantially all of our revenue, and any decrease in the sales of these products would harm our business.	
 
Ÿ 	 	We rely on third-party suppliers, some of which are sole-source suppliers, to provide components for our products.	
 
Ÿ 	 	We do not expect to continue to grow in the future at the same rate as we have in the past and profitability in recent periods might not be indicative of future performance.	
 
Ÿ 	 	If our sales during the holiday season fall below our forecasts, our overall financial condition and results of operations could be adversely affected.	
 
Ÿ 	 	We may have difficulty in accurately predicting our future customer demand, which could adversely affect our operating results.	
 
Ÿ 	 	Our success depends on our ability to maintain the value and reputation of our brand.	
 
Ÿ 	 	To remain competitive and stimulate customer demand, we must successfully manage frequent product introductions and transitions.	
 
Ÿ 	 	We are subject to international business uncertainties.	
 
Ÿ 	 	We are highly dependent on our Chief Executive Officer.	

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Ÿ 	 	If we do not effectively maintain and further develop our sales channels, including developing and supporting our retail sales channel and distributors, our business could be harmed.	
 
Ÿ 	 	Any material disruption of our information systems could adversely affect our operating results.	
Corporate information
We were incorporated as Woodman Labs, Inc. in California and began doing business as GoPro in February 2004. We reincorporated in Delaware in December 2011 and in February 2014 we changed our name to GoPro, Inc. Our principal executive offices are located at 3000 Clearview Way, San Mateo, California 94402, and our telephone number is (650) 332-7600. Our website address is www.gopro.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus. Investors should not rely on any such information in deciding whether to purchase our Class A common stock. We have included our website address in this prospectus solely as an inactive textual reference.
Unless the context indicates otherwise, as used in this prospectus, the terms “GoPro,” “we,” “us,” “our” and the “Company” refer to GoPro, Inc., a Delaware corporation, and its subsidiaries taken as a whole, unless otherwise noted.
We have registered a number of trademarks including “GOPRO,” “HERO,” “BACPAC” and “CINEFORM” and have filed with the U.S. Patent and Trademark Office to register the GoPro logo and GoPro Be a Hero logo. This prospectus also includes references to trademarks and service marks of other entities, and those trademarks and service marks are the property of their respective owners.

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The offering
 
Class A common stock offered by us	             shares	
 
Class A common stock offered by the selling stockholders	            shares	
 
Option to purchase additional shares of Class A common stock	             shares (with             shares of Class A common stock being offered by us and             shares of Class A common stock being offered by the selling stockholders)	
 
Class A common stock to be outstanding after this offering	             shares (             shares if the option to purchase additional shares is exercised in full)	
 
Class B common stock to be outstanding after this offering	             shares	
 
Total common stock to be outstanding after this offering	             shares (             shares if the option to purchase additional shares is exercised in full)	
 
Use of proceeds	We expect to use the net proceeds from this offering for general corporate purposes, including working capital, and to fully repay our term loan under our credit facility, which had an outstanding balance of $111.0 million as of March 31, 2014. We may also use a portion of the net proceeds to acquire or invest in complementary businesses, technologies or assets. We will not receive any of the proceeds from the sale of shares by the selling stockholders.	
 
Conflicts of interest	We expect to use at least 5% of the net proceeds from this offering to fully repay our term loan under our credit facility, owed by us to our lenders, including affiliates of J.P. Morgan Securities LLC, Citigroup Global Markets Inc. and Barclays Capital Inc. See “Use of proceeds” and “Management’s discussion and analysis of financial condition and results of operations—Liquidity and capital resources” for additional information regarding our credit facility. Accordingly, this offering is being made in compliance with the requirements of Rule 5121 of FINRA’s conduct rules. This rule generally provides that if at least 5% of the net proceeds from the sale of securities, not including underwriting compensation, is used to reduce or retire the balance of a loan or credit facility extended by the underwriters or their affiliates, a “qualified independent	

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 	underwriter” meeting certain standards set forth by FINRA must participate in the preparation of this prospectus and exercise the usual standards of due diligence with respect thereto. Piper Jaffray & Co. is assuming the responsibilities of acting as the qualified independent underwriter in connection with this offering and in conducting due diligence. None of J.P. Morgan Securities LLC, Citigroup Global Markets Inc. or Barclays Capital Inc. will confirm sales of the securities to any account over which they exercise discretionary authority without the prior written approval of the customer. See “Conflicts of interest.”	
 
Voting rights	We have two classes of authorized common stock: Class A common stock and Class B common stock. The rights of the holders of our Class A and Class B common stock are identical, except with respect to voting and conversion. The holders of our Class B common stock are entitled to 10 votes per share, and the holders of our Class A common stock are entitled to one vote per share. The holders of our Class A common stock and Class B common stock will vote together as a single class on all matters submitted to a vote of our stockholders, unless otherwise required by law. Following the completion of this offering, each share of our Class B common stock will be convertible into one share of our Class A common stock at any time and will convert automatically upon certain transfers or the date that the total number of shares of Class B common stock outstanding represents less than 10% of the total number of shares of Class A and Class B common stock outstanding. The holders of our outstanding Class B common stock will hold approximately     % of the voting power of our outstanding capital stock following this offering, with our executive officers and directors and their affiliates holding approximately     %, and Mr. Woodman, our Chief Executive Officer, holding approximately     %. These holders will have the ability to control the outcome of matters submitted to our stockholders for approval, including the election of our directors and the approval of any change in control transaction. See “Principal and selling stockholders” and “Description of capital stock.”	

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Directed share program	At our request, the underwriters have reserved for sale, at the initial public offering price, up to 3.5% of the Class A common stock offered hereby for sale to certain business associates of ours. None of our directors or executive officers will participate in the directed share program. We will offer these shares to the extent permitted under applicable regulations in the United States through a directed share program. The number of shares of our Class A common stock available for sale to the general public will be reduced by the number of directed shares purchased by participants in the program. Any directed shares not purchased will be offered by the underwriters to the general public on the same terms as the other shares of our Class A common stock offered hereby. We have agreed to indemnify the underwriters against certain liabilities and expenses, including liabilities under the Securities Act of 1933, as amended, in connection with the sale of shares through a directed share program. See “Underwriting.”	
 
LOYAL3 Platform	At our request, the underwriters have reserved up to 1.5% of the Class A common stock offered hereby to be offered through the LOYAL3 platform at the initial public offering price. See “Underwriting.”	
 
Proposed NASDAQ symbol	GPRO	
The number of shares of our Class A and Class B common stock to be outstanding after this offering is based on 112,422,478 shares of common stock outstanding as of March 31, 2014 and excludes:
 
Ÿ 	 	27,798,919 shares of Class B common stock issuable upon the exercise of stock options outstanding as of March 31, 2014 with a weighted average exercise price of $3.24 per share and 570,000 shares of Class B common stock issuable pursuant to outstanding restricted stock units, or RSUs, under our 2010 Equity Incentive Plan, or 2010 Plan;	
 
Ÿ 	 	The effect of the contribution back to us of a number of shares of Class B common stock equal to the number of shares we issue upon exercise of an outstanding option for the purchase of 6,584,427 shares of Class B common stock; see “Certain relationships and related person transactions—Equity grants and contribution agreements;”	
 
Ÿ 	 	             shares of Class B common stock issuable upon the exercise of options with an exercise price of $     per share and              shares of Class B common stock issuable upon settlement of RSUs granted after March 31, 2014;	
 
Ÿ 	 	398,121 shares of Class B common stock subject to a right of repurchase by us outstanding as of March 31, 2014;	
 
Ÿ 	 	             shares of Class B common stock subject to a right of repurchase by us issued after March 31, 2014;	

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Ÿ 	 	             shares of Class A common stock to be reserved for future issuance under our 2014 Equity Incentive Plan, or 2014 Plan, which will become effective on the date immediately prior to the date of this prospectus. Upon completion of this offering, any remaining shares available for issuance under our 2010 Plan will be added to the shares reserved under our 2014 Plan and we will cease granting awards under our 2010 Plan; and	
 
Ÿ 	 	             shares of Class A common stock to be reserved for future issuance under our 2014 Employee Stock Purchase Plan, or ESPP, which will become effective on the date of this prospectus.	
Our 2014 Plan and ESPP also provide for automatic annual increases in the number of shares reserved under the plans each year, as more fully described in “Executive compensation—Employee benefit plans.”
Unless otherwise noted, all information in this prospectus assumes:
 
Ÿ 	 	the amendment of our certificate of incorporation to redesignate our currently outstanding common stock as Class B common stock and to create a new class of Class A common stock to be offered and sold in this offering;	
 
Ÿ 	 	no exercise of the underwriters’ option to purchase up to              additional shares of Class A common stock from us and the selling stockholders in this offering;	
 
Ÿ 	 	the conversion of all outstanding shares of our redeemable convertible preferred stock into an aggregate of 30,523,036 shares of our Class B common stock and the conversion by the selling stockholders of shares of our Class B common stock into the same number of shares of our Class A common stock, in each case in connection with the closing of this offering;	
 
Ÿ 	 	the filing of our restated certificate of incorporation and the effectiveness of our amended and restated bylaws, which will occur in connection with the closing of this offering; and	
 
Ÿ 	 	no exercise of options, warrants or similar rights outstanding as of the date of this prospectus.	

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Summary consolidated financial data
The following tables summarize our consolidated financial data and should be read together 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 consolidated statements of operations data for the years ended December 31, 2011, 2012 and 2013 and the balance sheet data as of December 31, 2013 from our audited consolidated financial statements included elsewhere in this prospectus. The consolidated statements of operations data for the three months ended March 31, 2013 and 2014 and the consolidated balance sheet data as of March 31, 2014 have been derived from our unaudited consolidated financial statements included elsewhere in this prospectus. We have prepared the unaudited consolidated financial statements on the same basis as the audited consolidated financial statements and have included all adjustments, consisting only of normal recurring adjustments that, in our opinion, are necessary to state fairly the financial information set forth in those statements. Our historical results are not necessarily indicative of the results we expect in the future, and our interim results should not necessarily be considered indicative of results we expect for the full year or any other period.

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Consolidated statements of operations data:	  	Year ended December 31,	 	 	Three months ended
March 31,	 	
(in thousands, except per share amounts)	  	2011	 	  	2012	 	 	2013	 	 	2013	 	 	2014	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Revenue	  	$	234,238	  	  	$	526,016	  	 	$	985,737	  	 	$	255,057	  	 	$	235,716	  	
Cost of revenue(1)	  	 	111,683	  	  	 	298,530	  	 	 	623,953	  	 	 	165,628	  	 	 	139,202	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Gross profit	  	 	122,555	  	  	 	227,486	  	 	 	361,874	  	 	 	89,429	  	 	 	96,514	  	

Operating expenses:	  				  				 				 				 				
Research and development(1)	  	 	8,644	  	  	 	36,115	  	 	 	73,737	  	 	 	12,012	  	 	 	28,739	  	
Sales and marketing(1)	  	 	64,375	  	  	 	116,855	  	 	 	157,771	  	 	 	35,673	  	 	 	41,341	  	
General and administrative(1)	  	 	10,757	  	  	 	20,899	  	 	 	31,573	  	 	 	6,988	  	 	 	9,878	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total operating expenses	  	 	83,776	  	  	 	173,869	  	 	 	263,081	  	 	 	54,673	  	 	 	79,958	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating income	  	 	38,779	  	  	 	53,617	  	 	 	98,703	  	 	 	34,756	  	 	 	16,556	  	
Other income (expense), net	  	 	12	  	  	 	(407	) 	 	 	(7,374	) 	 	 	(1,694	) 	 	 	(1,625	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Income before income taxes	  	 	38,791	  	  	 	53,210	  	 	 	91,329	  	 	 	33,062	  	 	 	14,931	  	
Income tax expense	  	 	14,179	  	  	 	20,948	  	 	 	30,751	  	 	 	10,027	  	 	 	3,882	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income	  	$	24,612	  	  	$	32,262	  	 	$	60,578	  	 	$	23,035	  	 	$	11,049	  	

Weighted-average shares used to compute net income per share attributable to common stockholders(2):	  				  				 				 				 				
Basic	  	 	73,481	  	  	 	74,226	  	 	 	81,018	  	 	 	80,768	  	 	 	81,582	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Diluted	  	 	78,551	  	  	 	74,226	  	 	 	98,941	  	 	 	98,457	  	 	 	100,783	  	

Net income per share attributable to common stockholders(2):	  				  				 				 				 				
Basic	  	$	0.26	  	  	$	0.07	  	 	$	0.54	  	 	$	0.21	  	 	$	0.10	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Diluted	  	$	0.24	  	  	$	0.07	  	 	$	0.47	  	 	$	0.18	  	 	$	0.08	  	

Pro forma net income per share attributable to common stockholders (unaudited)(2):	  				  				 				 				 				
Basic	  				  				 	$	0.54	  	 				 	$	0.10	  	
	  				  				 	 	 	 	 				 	 	 	 	
Diluted	  				  				 	$	0.47	  	 				 	$	0.08	  	

Pro forma weighted-average shares used to compute net income per share attributable to common stockholders (unaudited)(2):	  				  				 				 				 				
Basic	  				  				 	 	111,541	  	 				 	 	112,105	  	
	  				  				 	 	 	 	 				 	 	 	 	
Diluted	  				  				 	 	129,464	  	 				 	 	131,306	  	

Supplemental pro forma net income per share attributable to common stockholders (unaudited)(2):	  				  				 				 				 				
Basic	  				  				 				 				 				
	  				  				 	 	 	 	 				 	 	 	 	
Diluted	  				  				 				 				 				

Supplemental pro forma weighted-average shares used to compute net income per share attributable to common stockholders (unaudited)(2):	  				  				 				 				 				
Basic	  				  				 				 				 				
	  				  				 	 	 	 	 				 	 	 	 	
Diluted	  				  				 				 				 				

Other financial information:	  				  				 				 				 				
Adjusted EBITDA	  	$	52,873	  	  	$	75,288	  	 	$	133,726	  	 	$	40,923	  	 	$	28,627	  	

 
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(1)	 	Includes stock-based compensation expense as follows:	

   	  	Year ended December 31,	 	  	Three months ended
March 31,	 	
 	  	    2011	 	  	    2012	 	  	    2013	 	  	    2013	 	  	    2014	 	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Cost of revenue	  	$	122	  	  	$	333	  	  	$	690	  	  	$	220	  	  	$	168	  	
Research and development	  	 	261	  	  	 	1,452	  	  	 	3,003	  	  	 	441	  	  	 	1,401	  	
Sales and marketing	  	 	7,690	  	  	 	6,335	  	  	 	5,670	  	  	 	1,204	  	  	 	1,414	  	
General and administrative	  	 	902	  	  	 	1,036	  	  	 	1,524	  	  	 	230	  	  	 	1,054	  	

Total stock-based compensation expense	  	$	8,975	  	  	$	9,156	  	  	$	10,887	  	  	$	2,095	  	  	$	4,037	  	

(2)	 	See Note 8 of our consolidated financial statements included elsewhere in this prospectus for an explanation of the calculations of our historical basic and diluted net income per share attributable to common stockholders and our pro forma and supplemental pro forma unaudited basic and diluted net income per share.	
Adjusted EBITDA
We use adjusted EBITDA as a key measure to understand and evaluate our core operating performance and trends, to prepare and approve our annual budget and to develop short- and long-term operational plans. In particular, the exclusion of certain expenses in calculating adjusted EBITDA can provide a useful measure for period-to-period comparisons of our business. 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.
Adjusted EBITDA is not prepared in accordance with U.S. Generally Accepted Accounting Principles, or GAAP, and should not be considered in isolation of, or as an alternative to, measures prepared in accordance with GAAP. In addition, adjusted EBITDA is not based on any comprehensive set of accounting rules or principles. As a non-GAAP measure, adjusted EBITDA has limitations in that it does not reflect all of the amounts associated with our results of operations as determined in accordance with GAAP. Some of these limitations are:
 
Ÿ 	 	adjusted EBITDA does not reflect interest expense, or the cash requirements necessary to service interest or principal payments on our debt;	
 
Ÿ 	 	adjusted EBITDA does not reflect the amounts we paid in taxes or other components of our tax expense;	
 
Ÿ 	 	adjusted EBITDA does not reflect our cash expenditures or future requirements for capital expenditures or contractual commitments;	
 
Ÿ 	 	adjusted EBITDA does not reflect changes in, or cash requirements for, our working capital needs;	
 
Ÿ 	 	adjusted EBITDA does not reflect the non-cash component of employee compensation;	
 
Ÿ 	 	although depreciation and amortization are non-cash charges, the assets being depreciated and amortized often will have to be replaced in the future, including POP displays, and adjusted EBITDA does not reflect any cash requirements for such replacements; and	
 
Ÿ 	 	other companies may calculate adjusted EBITDA differently than we do, limiting its usefulness as a comparative measure.	

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Because of these limitations, you should consider adjusted EBITDA alongside other financial performance measures, including our financial results presented in accordance with GAAP.
The following table presents a reconciliation of net income to adjusted EBITDA:

   	  	Year ended December 31,	 	  	Three months ended
March 31,	 	
(in thousands)	  	2011	 	 	2012	 	  	2013	 	  	2013	 	  	2014	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Net income	  	$	24,612	  	 	$	32,262	  	  	$	60,578	  	  	$	23,035	  	  	$	11,049	  	
Income tax expense	  	 	14,179	  	 	 	20,948	  	  	 	30,751	  	  	 	10,027	  	  	 	3,882	  	
Interest (income) and expense, net	  	 	(12	) 	 	 	346	  	  	 	6,018	  	  	 	1,332	  	  	 	1,335	  	
Depreciation and amortization	  	 	1,517	  	 	 	3,975	  	  	 	12,034	  	  	 	2,209	  	  	 	3,811	  	
POP display amortization	  	 	3,602	  	 	 	8,601	  	  	 	13,458	  	  	 	2,225	  	  	 	4,513	  	
Stock-based compensation	  	 	8,975	  	 	 	9,156	  	  	 	10,887	  	  	 	2,095	  	  	 	4,037	  	
	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Adjusted EBITDA	  	$	52,873	  	 	$	75,288	  	  	$	133,726	  	  	$	40,923	  	  	$	28,627	  	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Consolidated balance sheet data as of March 31, 2014 are presented below:
 
Ÿ 	 	on an actual basis;	
 
Ÿ 	 	on a pro forma basis to reflect the conversion of all outstanding shares of our redeemable convertible preferred stock into 30,523,036 shares of our Class B common stock in connection with the closing of this offering; and	
 
Ÿ 	 	on a pro forma as adjusted basis to give further effect to (i) the application of a portion of the proceeds of this offering to repay in full the outstanding balance of our term loan, which was $111.0 million as of March 31, 2014, (ii) the conversion by the selling stockholders of              shares of our Class B common stock into the same number of shares of our Class A common stock in connection with the closing of this offering, (iii) the sale by us of              shares of Class A common stock in this offering at an assumed initial public offering price of $             per share, the midpoint of the price range set forth on the cover page of this prospectus, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us and (iv) the filing and effectiveness of our restated certificate of incorporation in connection with the closing of this offering.	

   	  	As of March 31, 2014	
(in thousands)	  	Actual	 	  	Pro forma	 	  	Pro forma as
adjusted(1)	

Consolidated balance sheet data:	  				  				  		
Cash	  	$	111,215	  	  	$	111,215	  	  		
Working capital	  	 	66,999	  	  	 	66,999	  	  		
Total assets	  	 	355,200	  	  	 	355,200	  	  		
Long-term debt, including current portion	  	 	110,666	  	  	 	110,666	  	  		
Redeemable convertible preferred stock	  	 	77,213	  	  	 	—	  	  		
Total stockholders’ equity	  	 	10,391	  	  	 	87,604	  	  		

(1)	 	Each $1.00 increase or decrease in the assumed initial public offering price of $             per share, the midpoint of the price range set forth on the cover page of this prospectus, would increase or decrease, respectively, our cash, working capital, total assets and total stockholders’ equity by $             million, assuming 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.	

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 Risk factors
You should carefully consider the risks described below and all other information contained in this prospectus before making an investment decision. Our business, financial condition and results of operations could be materially and adversely affected if any of the following risks, or other risks and uncertainties that are not yet identified or that we currently think are immaterial, actually occur. In that event, the trading price of our shares may decline, and you may lose part or all of your investment.
Risks related to our business and industry
We operate in a highly competitive market and the size and resources of some of our competitors may allow them to compete more effectively than we can, which could result in a loss of our market share and a decrease in our revenue and profitability.
The market for capture devices, including cameras and camcorders, is highly competitive. Further, we expect competition to intensify in the future as existing competitors introduce new and more competitive offerings alongside their existing products, and as new market entrants introduce new products into our markets. We compete against established, well-known camera manufacturers such as Canon Inc., Nikon Corporation, Olympus Corporation, Polaroid Holding Corporation and Vivitar Corporation, large, diversified electronics companies such as JVC Kenwood Corporation, Panasonic Corporation, Samsung Electronics Co., Sony Corporation and Toshiba Corporation, and specialty companies such as Garmin Ltd. Many of our current competitors have substantial market share, diversified product lines, well-established supply and distribution systems, strong worldwide brand recognition and greater financial, marketing, research and development and other resources than we do. In addition, many of our existing and potential competitors enjoy substantial competitive advantages, such as:
 
Ÿ 	 	longer operating histories;	
 
Ÿ 	 	the capacity to leverage their sales efforts and marketing expenditures across a broader portfolio of products;	
 
Ÿ 	 	broader distribution and established relationships with channel partners;	
 
Ÿ 	 	access to larger established customer bases;	
 
Ÿ 	 	greater resources to make acquisitions;	
 
Ÿ 	 	larger intellectual property portfolios; and	
 
Ÿ 	 	the ability to bundle competitive offerings with other products and services.	
Moreover, smartphones and tablets with photo and video functionality have significantly displaced traditional camera sales. It is possible that, in the future, the manufacturers of these devices, such as Apple Inc. and Samsung, may design them for use in a range of conditions, including challenging physical environments, or develop products similar to ours. In addition to competition or potential competition from large, established companies, new companies may emerge and offer competitive products. Further, we are aware that certain companies have developed cameras designed and labeled to appear similar to our products, which may confuse consumers or distract consumers from purchasing GoPro products.
 
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Increased competition may result in pricing pressures and reduced profit margins and may impede our ability to continue to increase the sales of our products or cause us to lose market share, any of which could substantially harm our business and results of operations.
We depend on sales of our capture devices for substantially all of our revenue, and any decrease in the sales of these products would harm our business.
To date, substantially all of our revenue has been derived from sales of our capture devices, and we expect to continue to derive the substantial majority of our revenue from sales of cameras and accessories for the foreseeable future. A decline in the price of these products, whether due to macroeconomic conditions, competition or otherwise, or our inability to increase sales of these products, would harm our business and operating results more seriously than it would if we derived significant revenue from a variety of product lines and services. Any decrease in the sales of our capture devices would harm our business. While we are evaluating other products and services to add to our offerings, we may not be successful in identifying or executing on such opportunities, and we expect sales of capture devices to represent a substantial portion of our revenue for the foreseeable future. As a result, our future growth and financial performance will depend heavily on our ability to develop and sell enhanced versions of our capture devices. If we fail to deliver product enhancements, new releases or new products that our customers want, our business and results of operations would be harmed.
We rely on third-party suppliers, some of which are sole-source suppliers, to provide components for our products.
All of the components that go into the manufacture of our cameras and accessories are sourced from third-party suppliers, and some of these components are provided by a single supplier or by a supplier that could potentially become a competitor. If we lose access to components from a particular supplier, or experience a significant disruption in the supply of products and components from a current supplier, we may be unable to locate alternative suppliers of comparable quality at an acceptable price, or at all, and our business could be materially and adversely affected. In addition, if we experience a significant increase in demand for our products, our suppliers might not have the capacity or elect to meet our needs as they allocate components to other customers. Identifying a suitable supplier is an involved process that requires us to become satisfied with the supplier’s quality control, responsiveness and service, financial stability and labor and other ethical practices, and if we seek to source materials from new suppliers there can be no assurance that we could do so in a manner that does not disrupt the manufacture and sale of our products. Our reliance on single source, or a limited number of, suppliers involves a number of additional risks, including risks related to:
 
Ÿ 	 	supplier capacity constraints;	
 
Ÿ 	 	price increases;	
 
Ÿ 	 	timely delivery;	
 
Ÿ 	 	component quality;	
 
Ÿ 	 	failure of a key supplier to remain in business and adjust to market conditions;	
 
Ÿ 	 	delays in, or the inability to execute on, a supplier roadmap for components and technologies; and	
 
Ÿ 	 	natural disasters, fire, acts of terrorism or other catastrophic events.	
 
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In particular, we incorporate video compression and image processing semiconductors from one provider, Ambarella, Inc., into all of our cameras, and we do not have an alternative supplier for these key components. If Ambarella stopped supplying components on acceptable terms, or at all, or we experienced delays in receipt of components from Ambarella, we would experience a significant disruption in our ability to produce our products, and our business would be materially and adversely affected.
We do not expect to continue to grow in the future at the same rate as we have in the past and profitability in recent periods might not be indicative of future performance.
Although our revenue and profitability have grown rapidly from 2009 through 2013, you should not consider our recent revenue growth as indicative of our future performance. In future periods, our revenue could decline or grow more slowly than we expect. We also may incur significant losses in the future for a number of reasons, including other risks described in this prospectus, and we may encounter unforeseen expenses, difficulties, complications, delays and other unknown factors.
If our sales during the holiday season fall below our forecasts, our overall financial condition and results of operations could be adversely affected.
Seasonal consumer shopping patterns significantly affect our business. Specifically, our revenue is traditionally strongest in the fourth quarter of each year due to increased consumer purchases during holiday periods, and fourth quarter revenue comprised 44% and 37% of our 2012 and 2013 revenue, respectively. Given the strong seasonal nature of our sales, appropriate forecasting is critical to our operations. We anticipate that this seasonal impact on our net sales is likely to continue and any shortfall in expected fourth quarter net sales, due to macroeconomic conditions, a decline in the effectiveness of our promotional activities or supply chain disruptions, or for any other reason, would cause our annual results of operations to suffer significantly.
In contrast, a substantial portion of our expenses are personnel related and include salaries, stock-based compensation, benefits and incentive-based compensation plan expenses, which are not seasonal in nature. Accordingly, in the event of revenue shortfalls, we are generally unable to mitigate the negative impact on margins in the short term. If this were to occur, our operating results would be harmed.
We may have difficulty in accurately predicting our future customer demand which could adversely affect our operating results.
To ensure adequate inventory supply and meet the demands of our retailers and distributors, we must forecast inventory needs and place orders with our contract manufacturers and component suppliers based on our estimates of future demand for particular products. We have relatively recently begun producing our products in substantial volumes, and we have experienced rapid growth. We may be unable to meet customer, retailer or distributor demand for our products or may be required to incur higher costs to secure the necessary production capacity and components. We could also overestimate future sales of our products and risk carrying excess product and component inventory. Further, our ability to accurately forecast demand for our products could be affected by other factors, including product introductions by competitors, unanticipated changes in general market demand, macroeconomic conditions or consumer confidence. If we fail to continue to develop the infrastructure that enables us to accurately forecast customer demand for our products, our business and operating results could be adversely affected.
 
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Our success depends on our ability to maintain the value and reputation of our brand.
Our success depends on the value and reputation of our brand, including our primary trademarks “GoPro” and “Be a Hero.” The GoPro name and premium brand image are integral to the growth of our business and expansion into new vertical markets. Maintaining, promoting and positioning our brand will largely depend on the success of our marketing and merchandising efforts and our ability to provide consistent, high quality products. If we fail to achieve these objectives or if our public image or reputation were to be tarnished by negative publicity, our brand, business and operating results could be adversely affected. Negative publicity regarding the athletes we sponsor and celebrities we are associated with, our products, our customers’ UGC and the labor policies of any of our suppliers or manufacturers could create corresponding negative publicity for us, harm our brand image and, as a result, adversely impact our sales and results of operations. Maintaining and enhancing our brand may require us to make substantial investments and these investments may not achieve the desired goals. If we fail to successfully promote and maintain our brand or if we incur excessive expenses in this effort, our business and operating results could be adversely affected.
To remain competitive and stimulate customer demand, we must successfully manage frequent product introductions and transitions.
We believe that we must continually develop and introduce new products, enhance our existing products and effectively stimulate customer demand for new and upgraded products. Our research and development efforts are complex and require us to incur substantial research and development expense. Our research and development expense was $8.6 million, $36.1 million, $73.7 million and $28.7 million for 2011, 2012, 2013 and the three months ended March 31, 2014, respectively, and we anticipate that research and development expense will increase in the future. We may not be able to achieve an acceptable return, if any, on our research and development efforts. Further, any failure to complete product transitions effectively could harm our brand.
The success of new product introductions depends on a number of factors including, but not limited to, timely and successful research and development, market and customer acceptance, the effective forecasting and management of product demand, purchase commitments and inventory levels, the management of manufacturing and supply costs, and the risk that new products may have quality or other defects in the early stages of introduction. For example, in order to launch our HERO3 line of capture devices in time for the 2012 holiday shopping season, we implemented a compressed design and manufacturing cycle. As a result, our initial production run of HERO3 Black edition capture devices suffered from a number of design issues, part shortages and manufacturing problems, which reduced the number of units we were able to ship for the 2012 holiday season. Moreover, because of the compressed development schedule, our HERO3 capture devices required a subsequent firmware update to address certain issues, which resulted in negative publicity for us. In the future, if we do not successfully manage product transitions, especially during the holiday shopping season, our revenue and business may be harmed.
The introduction of new products or product enhancements may shorten the life cycle of our existing products, or replace sales of some of our current products, thereby offsetting the benefit of even a successful product introduction, and may cause customers to defer purchasing our existing products in anticipation of the new products and potentially lead to challenges in managing inventory of existing products. We also provide price protection to some of our retailers as a result of our new product introductions. If we fail to effectively manage new product introductions, our revenue and profitability may be harmed.
 
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Any material disruption of our information systems could adversely affect our operating results.
We are increasingly dependent on information systems to operate our ecommerce website, process transactions, respond to customer inquiries, manage our supply chain and inventory, ship goods on a timely basis and maintain cost-efficient operations. Any material disruption or slowdown of our systems, including a disruption or slowdown caused by our failure to successfully upgrade our systems, system failures, viruses, computer “hackers” or other causes, could cause delays in our supply chain or cause information, including data related to customer orders, to be lost or delayed which could result in delays in the delivery of merchandise to our stores and customers or lost sales, especially if the disruption or slowdown occurred during the holiday season. Any of these events could reduce demand for our products, impair our ability to complete sales through our ecommerce channels and cause our revenue to decline. If changes in technology cause our information systems to become obsolete, or if our information systems are inadequate to handle our growth, we could lose customers or our business and operating results could be adversely affected.
In particular, we are heavily reliant on our software-as-a-service, or SaaS, enterprise resource planning systems to conduct our order and inventory management and financial processes. As we expand our operations, we expect to utilize additional systems and service providers that may also be essential to managing our business. Although the systems and services that we require are typically available from a number of providers, it is time consuming and costly to qualify and implement these relationships. Therefore, our ability to manage our business would suffer if one or more of our providers suffer an interruption in their business, or experience delays, disruptions or quality control problems in their operations, or we have to change or add systems and services. We may not be able to control the quality of the systems and services we receive from third-party service providers, which could impair our ability to implement appropriate internal controls over financial reporting and may impact our business, operating results and financial condition.
We are highly dependent on our Chief Executive Officer.
Our future success depends in significant part on the continued service of our Chief Executive Officer, Nicholas Woodman. Mr. Woodman is critical to the strategic direction and overall management of our company as well as our research and development process. Mr. Woodman is an at-will employee and there are no vesting restrictions on any of the Class B common stock that he owns. The loss of Mr. Woodman could adversely affect our business, financial condition and operating results.
We depend on key personnel to operate our business, and many members of our current management team are new. If we are unable to retain, attract and integrate qualified personnel, our ability to develop and successfully grow our business could be harmed.
In addition to the continued services of Mr. Woodman, we believe that our future success is highly dependent on the contributions of our executive officers, as well as our ability to attract and retain highly skilled and experienced sales, research and development and other personnel in the United States and abroad. Some of our executive management team, including our Chief Financial Officer, General Counsel, and Vice President of Communications, joined us very recently and these changes in our management team may be disruptive to our business.
All of our employees, including our executive officers, are free to terminate their employment relationship with us at any time, and their knowledge of our business and industry may be
 
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difficult to replace. If one or more of our executive officers or key employees leaves, we may not be able to fully integrate new personnel or replicate the prior working relationships, and our operations could suffer. Qualified individuals are in high demand, and we may incur significant costs to attract them. Many of the companies with which we compete for experienced personnel also have greater resources than we do. Competition for qualified personnel is particularly intense in the San Francisco Bay Area, where our headquarters are located. If we are unable to attract and retain highly skilled personnel, we may not be able to achieve our strategic objectives, and our business, financial condition and operating results could be adversely affected.
If we do not effectively maintain and further develop our sales channels, including developing and supporting our retail sales channel and distributors, our business could be harmed.
As a consumer-facing company, we depend upon effective sales channels to reach the consumers who are the ultimate purchasers of our capture devices. In the United States, we primarily sell our products directly through a mix of retail channels, including big box, mid-market and specialty retailers, and we reach certain U.S. markets through distributors. In international markets, we primarily sell through distributors who in turn sell to local retailers. We depend on retailers to provide adequate and attractive space for our products and POP displays in their stores. We further depend on our retailers to employ, educate and motivate their sales personnel to effectively sell our products. If our retailers do not adequately display our products, choose to promote competitors’ products over ours or do not effectively explain to customers the advantages of our products, our sales could decrease and our business could be harmed. Similarly, our business could be adversely affected if any of our large retail customers were to experience financial difficulties, or change the focus of their businesses in a way that deemphasized the sale of our products. We are also investing heavily in providing new retailers with POP displays and expanding the footprint of our POP displays in existing stores, and there can be no assurance that this investment will lead to increased sales.
We depend on our distributors to reach certain market segments in the United States and to reach our international retailers. Our distributors generally offer products from several different manufacturers. Accordingly, we are at risk that these distributors may give higher priority to selling other companies’ products. If we were to lose the services of a distributor, we might need to find another distributor in that area, and there can be no assurance of our ability to do so in a timely manner or on favorable terms. Further, our distributors build inventories in anticipation of future sales, and if such sales do not occur as rapidly as they anticipate, our distributors will decrease the size of their future product orders. We are also subject to the risks of our distributors encountering financial difficulties, which could impede their effectiveness and also expose us to financial risk if they are unable to pay for the products they purchase from us. Any reduction in sales by our current distributors, loss of key distributors or decrease in revenue from our distributors could adversely affect our revenue, operating results and financial condition.
A small number of retailers and distributors account for a substantial portion of our revenue, and if our relationships with any of these retailers or distributors were to be terminated or the level of business with them significantly reduced, our business could be harmed.
Our ten largest customers, measured by the revenue we derive from them, accounted for 44%, 42%, 51% and 51% of our revenue for 2011, 2012, 2013 and the three months ended March 31, 2014, respectively. One retailer accounted for 15%, 15%, 17% and 13% of our revenue for 2011, 2012, 2013 and the three months ended March 31, 2014, respectively. One distributor accounted for 10% of our revenue for the three months ended March 31, 2014. The loss of a small number
 
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of our large customers, or the reduction in business with one or more of these customers, could have a significant adverse impact on our operating results. While we have agreements with these large customers, these agreements do not require them to purchase any meaningful amount of our products.
If we encounter problems with our distribution system, our ability to deliver our products to the market and to meet customer expectations could be harmed.
We rely on a select number of third-party distribution facilities for substantially all of our product distribution. Our distribution facilities include computer controlled and automated equipment, which means their operations may be vulnerable to computer viruses or other security risks, the proper operation of software and hardware, electronic or power interruptions or other system failures. Further, because substantially all of our products are distributed from only a few locations, our operations could be interrupted by labor difficulties, extreme or severe weather conditions, or floods, fires or other natural disasters near our distribution centers. If we encounter problems with our distribution system, our ability to meet customer expectations, manage inventory, complete sales and achieve our objectives for operating efficiencies could be harmed.
We are subject to international business uncertainties.
Revenue from outside the United States comprised 35%, 47%, 49% and 53% of our revenue in 2011, 2012, 2013 and the three months ended March 31, 2014, respectively, and we expect this portion to increase in the future. Further, our supply chain partners have operations in countries including China, Singapore and the Netherlands. We intend to expand our relationships in these countries and may establish additional relationships in other countries to grow our operations. Operating in foreign countries requires significant resources and management attention, and we have limited experience entering new geographic markets. We cannot be assured that our international efforts will be successful. International sales and operations may be subject to risks such as:
 
Ÿ 	 	difficulties in staffing and managing foreign operations;	
 
Ÿ 	 	burdens of complying with a wide variety of laws and regulations;	
 
Ÿ 	 	adverse tax effects and foreign exchange controls making it difficult to repatriate earnings and cash;	
 
Ÿ 	 	political and economic instability;	
 
Ÿ 	 	terrorist activities and natural disasters;	
 
Ÿ 	 	trade restrictions;	
 
Ÿ 	 	differing employment practices and laws and labor disruptions;	
 
Ÿ 	 	the imposition of government controls;	
 
Ÿ 	 	lesser degrees of intellectual property protection;	
 
Ÿ 	 	tariffs and customs duties and the classifications of our goods by applicable governmental bodies;	
 
Ÿ 	 	a legal system subject to undue influence or corruption; and	
 
Ÿ 	 	a business culture in which illegal sales practices may be prevalent.	
The occurrence of any of these risks could negatively affect our international business and consequently our business, operating results and financial condition.
 
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We may be subject to product liability or warranty claims that could result in significant direct or indirect costs, or we could experience greater returns from retailers than expected, which could harm our business and operating results.
We generally provide a 12-month warranty on all of our products, except in the European Union, or EU, where we provide a two-year warranty on all of our products. The occurrence of any material defects in our products could make us liable for damages and warranty claims in excess of our current reserves. In addition, we could incur significant costs to correct any defects, warranty claims or other problems, including costs related to product recalls. Any negative publicity related to the perceived quality of our products could affect our brand image, decrease retailer, distributor and customer demand, and adversely affect our operating results and financial condition. Also, while our warranty is limited to repairs and returns, warranty claims may result in litigation, the occurrence of which could adversely affect our business and operating results.
Our intellectual property rights and proprietary rights may not adequately protect our products.
Our commercial success will depend substantially on our ability to obtain patents and other intellectual property rights and maintain adequate legal protection for our products in the United States and other countries. We will be able to protect our intellectual property from unauthorized use by third parties only to the extent that these assets are covered by valid and enforceable patents, trademarks, copyrights or other intellectual property rights, or are effectively maintained as trade secrets. As of the date of this filing, we have 42 issued patents and 68 patent applications pending in the United States and 15 corresponding issued patents and 12 patent applications pending in foreign jurisdictions. Our issued U.S. patents will expire between 2024 and 2032 and our issued foreign patents will expire between 2022 and 2038. We apply for patents covering our products, services, technologies and designs, as we deem appropriate. We may fail to apply for patents on important products, services, technologies or designs in a timely fashion, or at all. We do not know whether any of our patent applications will result in the issuance of any patents. Even if patents are issued, they may not be sufficient to protect our products, services, technologies, or designs. Our existing and future patents may not be sufficiently broad to prevent others from developing competing products, services technologies, or designs. No consistent policy regarding the breadth of patent claims has emerged to date in the United States and we expect the landscape for patent protection for our products, services technologies, and designs to continue to be uncertain. Intellectual property protection and patent rights outside of the United States are even less predictable. As a result, the validity and enforceability of patents cannot be predicted with certainty. Moreover, we cannot be certain whether:
 
Ÿ 	 	we were the first to conceive of or invent the inventions covered by each of our issued patents and pending patent applications;	
 
Ÿ 	 	we were the first to reduce to practice inventions covered by each of our issued patents and pending patent applications;	
 
Ÿ 	 	we were the first to file patent applications for these inventions;	
 
Ÿ 	 	others will independently develop similar or alternative products, technologies, services or designs or duplicate any of our products, technologies, services or designs;	
 
Ÿ 	 	any patents issued to us will provide us with any competitive advantages, or will be challenged by third parties;	
 
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Ÿ 	 	we will develop additional proprietary products, services, technologies or designs that are patentable; or	
 
Ÿ 	 	the patents of others will have an adverse effect on our business.	
The patents we own or license and those that may be issued to us in the future may be challenged, invalidated, rendered unenforceable or circumvented, and the rights granted under
any issued patents may not provide us with proprietary protection or competitive advantages. Moreover, third parties could practice our inventions in territories where we do not have patent protection or in territories where they could obtain a compulsory license to our technology where patented. Such third parties may then try to import products made using our inventions into the United States or other territories. Additional uncertainty may result from potential passage of patent legislation by the U.S. Congress, legal precedent by the U.S. Federal Circuit Courts and Supreme Court as they determine legal issues concerning the scope and construction of patent claims and inconsistent interpretation of patent laws by the lower courts. Accordingly, we cannot ensure that any of our pending patent applications will result in issued patents, or even if issued, predict the breadth, validity and enforceability of the claims upheld in our and other companies’ patents.
We have registered and applied to register certain of our trademarks in several jurisdictions worldwide. In some jurisdictions where we have applied to register our trademarks, other applications or registrations exist for the same, similar or otherwise related products or services. If we are not successful in arguing that there is no likelihood of confusion between our marks and the marks that are the subject of the other applications or registrations owned by third parties, our applications may be denied, preventing us from obtaining trademark registrations and adequate protection for our marks in the relevant jurisdictions, which could impact our ability to build our brand identity and market our products and services in those jurisdictions. Whether or not our application is denied, third parties may claim that our trademarks infringe their rights. As a result, we could be forced to pay significant settlement costs or cease the use of these trademarks and associated elements of our brand in the United States or other jurisdictions.
Even in those jurisdictions where we are able to register our trademarks, competitors may adopt or apply to register similar trademarks to ours, may register domain names that mimic ours or incorporate our trademarks, or may purchase keywords that are identical or confusingly similar to our brand names as terms in Internet search engine advertising programs, which could impede our ability to build our brand identity and lead to confusion among potential customers of our products and services. We believe that other companies have copied some of our trademarks for use in the marketplace. We have sent demand letters in a number of these instances, but there can be no assurance that we are aware of all such instances or that we will prevail should such letters be ineffective. If we are not successful in proving that we have prior rights in our marks and arguing that there is a likelihood of confusion between our marks and the marks of these third parties, our inability to prevent these third parties from continuing to use our marks or confusingly similar marks may negatively impact the strength, value and effectiveness of our brand names and our ability to market our products and prevent consumer confusion.
The laws of certain countries do not protect intellectual property and proprietary rights to the same extent as the laws of the United States and, therefore, in certain jurisdictions, we may be unable to protect our products, services, technologies and designs adequately against unauthorized third-party copying, infringement or use, which could adversely affect our competitive position. For instance, we are aware of cameras that have been designed and labeled
 
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to appear similar to our products, and are available for sale in countries within Asia, Europe and, to a lesser extent, the United States. To protect or enforce our intellectual property rights, we may initiate proceedings or litigation against third parties. Such proceedings or litigation may be necessary to protect our trade secrets or know-how, products, technologies, designs, brands, reputation, likeness, authorship works or other intellectual property rights. Such proceedings or litigation also may be necessary to determine the enforceability, scope and validity of the proprietary rights of others. Any proceedings or lawsuits that we initiate could be expensive, take significant time and divert management’s attention from other business concerns. Additionally, we may provoke third parties to assert claims against us. These claims could invalidate or narrow the scope of our own intellectual property rights. We may not prevail in any proceedings or lawsuits that we initiate and the damages or other remedies awarded, if any, may be commercially valuable. The occurrence of any of these events may adversely affect our business, financial condition and operating results.
Our business may suffer if it is alleged or determined that our technology or another aspect of our business infringes the intellectual property rights of others.
The markets in which we compete are characterized by the existence of a large number of patents and trade secrets and also by litigation based on allegations of infringement or other violations of intellectual property rights. Moreover, in recent years, individuals and groups have purchased patents and other intellectual property assets for the purpose of making claims of infringement to extract settlements from companies like ours. From time to time, third parties have claimed that we are infringing upon their intellectual property rights or have offered licenses to us in respect of technology they own that may be infringed upon by our products, and we expect to continue to receive such claims or offers in the future. We are currently in receipt of letters of this nature in respect of which we have reached no resolution with the third-party sender. Also, third parties may make infringement claims against us that relate to technology developed and owned by one of our suppliers for which our suppliers may or may not indemnify us. Even if we are indemnified against such costs, the indemnifying party may be unable to uphold its contractual obligations and determining the scope of these obligations could require additional litigation. Claims of intellectual property infringement against us or our suppliers might require us to redesign our products, rebrand our services, enter into costly settlement or license agreements, pay costly damage awards or face a temporary or permanent injunction prohibiting us from marketing or selling our products or services. If we cannot or do not license the infringed intellectual property on reasonable terms or at all, or substitute similar intellectual property from another source, our revenue and operating results could be adversely impacted. Additionally, our customers, distributors and retailers may not purchase our offerings if they are concerned that they may infringe third-party intellectual property rights. Responding to such claims, regardless of their merit, can be time consuming, costly to defend in litigation, divert management’s attention and resources, damage our reputation and brand and cause us to incur significant expenses. The occurrence of any of these events may have an adverse effect on our business, financial condition and operating results.
If we are unable to anticipate consumer preferences and successfully develop attractive products, we might not be able to maintain or increase our revenue and profitability.
Our success depends on our ability to identify and originate product trends as well as to anticipate and react to changing consumer demands in a timely manner. If we are unable to introduce new products or novel technologies in a timely manner or our new products or technologies are not accepted by consumers, our competitors may introduce more attractive
 
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products, which could hurt our competitive position. Our new products might not receive consumer acceptance if consumer preferences shift to other products, and our future success depends in part on our ability to anticipate and respond to these changes. Failure to anticipate and respond in a timely manner to changing consumer preferences could lead to, among other things, lower revenue and excess inventory levels.
As we continually seek to enhance our products, we may incur additional costs to incorporate new or revised features. We might not be able to, or determine that it is not in our interests to, raise prices to compensate for these additional costs. For example, our gross profit declined as a percentage of revenue in 2012 and 2013 compared to the prior year periods due, in part, to the additional costs of incorporating new functionality into our newest generation of products.
If we encounter issues with our manufacturers, our business, brand and results of operations could be harmed and we could lose sales.
We do not have internal manufacturing capabilities and rely primarily on two contract manufacturers, Chicony Electronics Co. Ltd. and Sky Light Digital Limited/Sky Light Industrial Limited, to manufacture our products. We cannot be certain that we will not experience operational difficulties with our manufacturers, including reductions in the availability of production capacity, errors in complying with product specifications, insufficient quality control, failures to meet production deadlines, increases in manufacturing costs and increased lead times. Additionally, our manufacturers may experience disruptions in their manufacturing operations due to equipment breakdowns, labor strikes or shortages, component or material shortages, cost increases or other similar problems. Further, in order to minimize their inventory risk, our manufacturers might not order components from third-party suppliers with adequate lead time, thereby impacting our ability to meet our demand forecast. Therefore, if we fail to manage our relationship with our manufacturers effectively, or if they experience operational difficulties, our ability to ship products to our retailers and distributors could be impaired and our competitive position and reputation could be harmed.
In the event that we receive shipments of products that fail to comply with our technical specifications or that fail to conform to our quality control standards, and we are not able to obtain replacement products in a timely manner, we risk revenue losses from the inability to sell those products, increased administrative and shipping costs, and lower profitability. Additionally, if defects are not discovered until after customers purchase our products, our customers could lose confidence in the technical attributes of our products and our business could be harmed.
We do not control our contract manufacturers or suppliers, or require them to comply with a formal code of conduct, and actions that they might take could harm our reputation and sales.
We do not control our contract manufacturers or suppliers, including their labor, environmental or other practices, or require them to comply with a formal code of conduct. Though we conduct periodic audits of our contract manufacturers’ and suppliers’ compliance with applicable laws and good industry practices, these audits may not be frequent or thorough enough to detect non-compliance. A violation of labor, environmental or other laws by our contract manufacturers or suppliers, or a failure of these parties to follow ethical business practices, could lead to negative publicity and harm our reputation. In addition, we may choose to seek alternative manufacturers or suppliers if these violations or failures were to occur. Identifying and qualifying new manufacturers or suppliers can be time consuming and we might not be able to substitute suitable alternatives in a timely manner or at an acceptable cost. Other consumer products companies have faced significant criticism for the actions of their manufacturers and suppliers,
 
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and we could face such criticism ourselves. Any of these events could adversely affect our brand, harm our reputation, reduce demand for our products and harm our ability to meet demand if we need to identify alternative manufacturers or suppliers.
Our growth depends in part on our penetrating additional consumer markets, and we may not be successful in doing so.
Our initial growth has largely been fueled by the adoption of our products by people looking to self-capture images of themselves participating in exciting physical activities. We believe that our future growth depends not only on continuing to reach this core demographic, but also broaden our customer base to include a more diverse group of consumers seeking to capture themselves, family members and things around them in their daily lives. While we are investing in sales and marketing activities to reach this expanded market, we cannot be assured that we will be successful in doing so. If we are not successful in penetrating additional consumer markets, we might not be able to grow our market share and revenue.
We plan to continue to invest in the further development of a content management platform and the acquisition and distribution of content, and we might not be successful in doing so.
We believe that enabling consumers to easily manage, share and enjoy their GoPro content will increase consumer interest in our products, and we intend to continue to invest in improving our software offerings and the further development of our content management platform to assist consumers with these tasks. The development of these software offerings and other tools needed for these purposes requires different skills from our historical core focus of developing capture devices.
We are investing to scale GoPro as a media entity and develop new revenue opportunities by increasing production of GoPro originally produced content while simultaneously increasing the aggregation and redistribution of our customers’ “best of” UGC. Additionally, we are investing to develop and distribute the GoPro Channel on more partner platforms such as Xbox Live and Virgin America. The execution of this business strategy requires different skills from our historical core focus of developing capture devices.
To achieve our goals, we have recently hired personnel with what we believe are requisite skills and experience to execute on these plans, and we continue to seek additional personnel with these skills. We cannot be assured of our ability to organize, manage and execute these relatively new functions within our business. If we are not successful, we may not achieve our goals of facilitating greater consumer use of their content and scaling GoPro as a media entity, and we might not recover the investments we make in these efforts, which could adversely affect our business and operating results.
We may acquire other businesses or receive offers to be acquired, which could require significant management attention, disrupt our business, dilute stockholder value and adversely affect our operating results.
As part of our business strategy, we may selectively make investments in or acquire other companies, products or technologies. We may not be able to find suitable acquisition candidates and we may not be able to complete acquisitions on favorable terms, if at all. If we do complete acquisitions, we may not ultimately strengthen our competitive position or achieve our goals, and any acquisitions we complete could be viewed negatively by users or investors. In addition, if we fail to integrate successfully such acquisitions, or the technologies associated with such acquisitions, into our company, the revenue and operating results of the combined company
 
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could be adversely affected. Acquisitions may disrupt our ongoing operations, divert management from their primary responsibilities, subject us to additional liabilities, increase our expenses and adversely impact our business, financial condition, operating results and cash flows. We may not successfully evaluate or utilize the acquired technology and accurately forecast the financial impact of an acquisition transaction, including accounting charges. We may have to pay cash, incur debt or issue equity securities to pay for any such acquisition, each of which could affect our financial condition or the value of our capital stock. The sale of equity or issuance of debt to finance any such acquisitions could result in dilution to our stockholders. If we incur more debt it would result in increased fixed obligations and could also subject us to covenants or other restrictions that would impede our ability to manage our operations. In addition, our future operating results may be impacted by performance earnouts or contingent bonuses. Furthermore, acquisitions may require large one-time charges and can result in increased debt or contingent liabilities, adverse tax consequences, additional stock-based compensation expense and the recording and subsequent amortization or impairments of amounts related to certain purchased intangible assets, any of which could negatively impact our future results of operations. We may also record goodwill in connection with an acquisition and incur goodwill impairment charges in the future. In the future, if our acquisitions do not yield expected revenue, we may be required to take charges to our operating results based on this impairment assessment process, which could adversely affect our results of operations.
Failure to obtain new, and maintain existing, high-quality event, athlete and celebrity sponsorships could harm our business.
Establishing relationships with high profile sporting events, athletes and celebrity personalities to evaluate, promote and establish product credibility with consumers, including entering into sponsorship and licensing agreements, has and will continue to be a key element of our marketing strategy. However, as competition in the camera and video recorder markets has increased, the costs of obtaining and retaining event, athlete and celebrity sponsorships and licensing agreements have increased. If we are unable to maintain our current associations with our event, athlete and celebrity partners, or to do so at a reasonable cost, we could lose the benefits of these relationships, and we may be required to modify and substantially increase our marketing investments. In addition, actions taken by endorsers of our products that harm their reputations could also harm our brand image with consumers. The failure to correctly identify high impact events, promising athletes or other appealing personalities to use and endorse our products, or poor performance by our endorsers, could adversely affect our brand and result in decreased sales of our products.
If we are unable to maintain or acquire rights to include intellectual property owned by others in the content distributed by us, our marketing, sales or future business strategy could be affected or we could be subject to lawsuits relating to our use of this content.
The distribution of GoPro content helps to market our brand and our products. If we cannot continue to acquire rights to distribute UGC or acquire rights to use and distribute music, athlete and celebrity names and likenesses or other content for our original productions or for our GoPro Studio Edit Templates, our marketing efforts could be diminished, our sales could be harmed and our future content strategy could be adversely affected. In addition, third-party content providers may allege that we have violated their intellectual property rights. If we are unable to obtain sufficient rights, successfully defend our use of or otherwise alter our business practices on a timely basis in response to claims of infringement, misappropriation, misuse or other violation of third-party intellectual property rights, our business may be adversely affected. As a
 
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distributor of content, we face potential liability for negligence, copyright, or trademark infringement or other claims based on the nature and content of materials that we distribute. If we are found to be liable for infringement, then our business may suffer.
If our customers are not satisfied with our technical support or software updates, they may choose not to purchase our products, either of which would adversely impact our business and operating results.
Our business relies, in part, on our customers’ satisfaction with the technical support and software updates we provide to support our products. If we fail to provide technical support services that are responsive, satisfy our customers’ expectations and resolve issues that they encounter with our products, customers may choose not to purchase additional products and we may face brand and reputational harm, which could adversely affect our operating results.
We could be adversely affected by violations of the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act or similar anti-bribery laws in other jurisdictions in which we operate.
The global nature of our business and the significance of our international revenue create various domestic and local regulatory challenges and subject us to risks associated with our international operations. The U.S. Foreign Corrupt Practices Act, or the FCPA, the U.K. Bribery Act 2010, or the U.K. Bribery Act, and similar anti-bribery and anticorruption laws in other jurisdictions generally prohibit U.S.-based companies and their intermediaries from making improper payments to non-U.S. officials for the purpose of obtaining or retaining business, directing business to another, or securing an advantage. In addition, U.S. public companies are required to maintain records that accurately and fairly represent their transactions and have an adequate system of internal accounting controls. Under the FCPA, U.S. companies may be held liable for the corrupt actions taken by directors, officers, employees, agents, or other strategic or local partners or representatives. As such, if we or our intermediaries fail to comply with the requirements of the FCPA or similar legislation, governmental authorities in the United States and elsewhere could seek to impose substantial civil and/or criminal fines and penalties which could have a material adverse effect on our business, reputation, operating results and financial condition.
We operate in areas of the world that experience corruption by government officials to some degree and, in certain circumstances, compliance with anti-bribery and anticorruption laws may conflict with local customs and practices. Our global operations require us to import and export to and from several countries, which geographically expands our compliance obligations. In addition, changes in such laws could result in increased regulatory requirements and compliance costs which could adversely affect our business, financial condition and results of operations. We cannot be assured that our employees or other agents will not engage in prohibited conduct and render us responsible under the FCPA or the U.K. Bribery Act. If we are found to be in violation of the FCPA, the U.K. Bribery Act or other anti-bribery or anticorruption laws (either due to acts or inadvertence of our employees, or due to the acts or inadvertence of others), we could suffer criminal or civil penalties or other sanctions, which could have a material adverse effect on our business.
We are subject to governmental export and import controls and economic sanctions laws that could subject us to liability and impair our ability to compete in international markets.
The U.S. and various foreign governments have imposed controls, export license requirements and restrictions on the import or export of some technologies. Our products are subject to U.S. export controls, including the Commerce Department’s Export Administration Regulations and various economic and trade sanctions regulations established by the Treasury Department’s
 
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Office of Foreign Assets Controls, and exports of our products must be made in compliance with these laws. Furthermore, U.S. export control laws and economic sanctions prohibit the provision of products and services to countries, governments, and persons targeted by U.S. sanctions. Even though we take precautions to prevent our products from being provided to targets of U.S. sanctions, our products, including our firmware updates, could be provided to those targets or provided by our customers despite such precautions. Any such provision could have negative consequences, including government investigations, penalties and reputational harm. Our failure to obtain required import or export approval for our products could harm our international and domestic sales and adversely affect our revenue.
In 2014, we determined that we may have shipped some products to international customers that, prior to shipment, may have required either a one-time product review or application for an encryption registration number in lieu of such product review. We have since acquired the appropriate encryption registration number. We also recently determined that we provided controlled technology to our offshore manufacturing partners without the required export licenses and have submitted an export license application for the export of controlled technology to our offshore manufacturing partners. We have made an initial voluntary submission to the Commerce Department’s Bureau of Industry and Security to report these potential violations and are in the process of preparing a supplemental disclosure.
We also discovered in 2014 potential sanctions violations involving transactions with sanctioned parties, the provision of support services to persons in an embargoed country, and firmware updates to persons in several embargoed countries. Upon learning of these transactions and associated export control requirements, we promptly initiated an internal investigation and are taking remedial measures to prevent similar export control violations from occurring in the future. We have made an initial voluntary submission to the U.S. Department of Treasury’s Office of Foreign Assets Control to report these potential violations and are preparing a supplemental or update disclosure.
While we do not expect the subject matters of our voluntary submissions to have a material effect on our business or operating results, they could result in penalties, costs, and restrictions on export privileges.
Our effective tax rate and the intended tax benefits of our corporate structure and intercompany arrangements depend on the application of the tax laws of various jurisdictions and on how we operate our business.
The application of the tax laws of various jurisdictions, including the United States, to our international business activities is subject to interpretation and depends on operating our business in a manner consistent with our corporate structure and intercompany arrangements. The taxing authorities of the jurisdictions in which we operate may challenge our methods for valuing technology, intercompany arrangements, including our transfer pricing, or our current or historical tax positions, including with respect to research and development tax credits and our prior status as an S corporation. Any such challenge could be costly and time consuming to defend and may increase our worldwide effective tax rate, and consequently adversely affect our financial position and results of operations. In order to effectively structure and execute our international operations we will need to continue to hire, train and manage qualified personnel. If our new hires underperform, or if we are unsuccessful in hiring, training, managing and integrating these new employees, our business may be adversely affected.
 
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Our corporate structure includes legal entities located in jurisdictions with income tax rates lower than the U.S. statutory tax rate. Our intercompany arrangements result in income earned by such entities in accordance with arm’s-length principles and commensurate with functions performed, risks assumed and ownership of valuable corporate assets. We believe that income taxed in certain foreign jurisdictions at a lower rate relative to the U.S. statutory rate will have a beneficial impact on our worldwide effective tax rate.
Significant judgment is required in evaluating our tax positions and determining our provision for income taxes. During the ordinary course of business, there are many transactions and calculations for which the ultimate tax determination is uncertain. For example, our effective tax rates could be adversely affected by earnings being lower than anticipated in countries where we have lower statutory rates and higher than anticipated in countries where we have higher statutory rates, by changes in foreign currency exchange rates or by changes in the relevant tax, accounting and other laws, regulations, principles and interpretations. As we operate in numerous taxing jurisdictions, the application of tax laws can be subject to diverging and sometimes conflicting interpretations by tax authorities of these jurisdictions. It is not uncommon for taxing authorities in different countries to have conflicting views, for instance, with respect to, among other things, the manner in which the arm’s-length standard is applied for transfer pricing purposes, or with respect to the valuation of intellectual property. In addition, tax laws are dynamic and subject to change as new laws are passed and new interpretations of the law are issued or applied. In particular, there is uncertainty in relation to the U.S. tax legislation in terms of the future corporate tax rate but also in terms of the U.S. tax consequences of income derived from intellectual property held in foreign jurisdictions.
Our existing corporate structure and intercompany arrangements have been implemented in a manner that we believe complies with current tax laws. However, our tax liabilities may be adversely affected if such structure and arrangements are challenged by a taxing authority or we are unable to appropriately adapt the manner in which we operate our business or if tax laws change.
An economic downturn or economic uncertainty in our key markets may adversely affect consumer discretionary spending and demand for our products.
Our products are discretionary items for consumers. Factors affecting the level of consumer spending for such discretionary items include general market conditions, macroeconomic conditions and other factors such as consumer confidence, the availability and cost of consumer credit, levels of unemployment and tax rates. As global economic conditions continue to be volatile or economic uncertainty remains, trends in consumer discretionary spending also remain unpredictable and subject to reductions due to credit constraints and uncertainties about the future. Unfavorable economic conditions may lead consumers to delay or reduce purchases of our products. Consumer demand for our products may not reach our sales targets, or may decline, when there is an economic downturn or economic uncertainty. Our sensitivity to economic cycles and any related fluctuation in consumer demand could adversely affect our business, financial condition and operating results.
We have previously identified a material weakness in our internal control over financial reporting, and if we are unable to maintain effective internal controls, we may not be able to produce timely and accurate financial statements, and we or our independent registered public accounting firm may conclude that our internal control over financial reporting is not effective, which could adversely impact our investors’ confidence and our stock price.
Prior to this offering, we were a private company and were not required to test our internal controls on a systematic basis. Our independent registered public accounting firm will not be
 
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required to formally attest to the effectiveness of our internal control over financial reporting until the later of (1) the year following our first annual report required to be filed with the SEC, or (2) the date we are no longer an “Emerging Growth Company” as defined in the recently enacted Jumpstart our Business Startups Act of 2012, or JOBS Act, if we take advantage of the exemptions contained in the JOBS Act. We anticipate that after the completion of this offering and upon the expiration of available exemptions, pursuant to Sections 302 and 404 of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act, we will be required to evaluate and determine the effectiveness, provide a management report and be subject to attestation of our internal control over financial reporting, beginning with our annual report for the fiscal year ending December 31, 2015.
In connection with the preparation of our financial statements for the years ended December 31, 2011 and 2012, we, in conjunction with our independent registered public accounting firm, identified a material weakness in the design and operating effectiveness of our internal control over financial reporting. A “material weakness” is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis. The material weakness primarily comprised deficiencies related to a lack of technical accounting skills, monitoring activities and a lack of adequate review processes and controls within our accounting and finance organization. During 2013, we took certain actions that remediated the material weakness, which included hiring management level personnel with technical accounting expertise, designing adequate review and monitoring procedures in our accounting and finance organization, and identifying and implementing improved processes and controls.
Further, we are in the process of designing and implementing the system of internal control over financial reporting required to comply with our future obligations and to strengthen our overall control environment. This initiative will be time consuming, costly, and might place significant demands on our financial and operational resources, as well as our IT systems.
Our current efforts to design and implement an effective control environment may not be sufficient to remediate or prevent future material weaknesses or significant deficiencies from occurring. A control system, no matter how well designed and operated, can provide only reasonable assurance that the control system’s objectives will be met. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and all instances of fraud will be detected. If we identify future material weaknesses in our internal controls over financial reporting, if we are unable to comply with the requirements of Section 404 of the Sarbanes-Oxley Act in a timely manner, if we are unable to assert that our internal control over financial reporting are effective, or if our independent registered public accounting firm is unable to express an opinion as to the effectiveness of our internal control over financial reporting, if and when required, investors may lose confidence in the accuracy and completeness of our financial reports and the market price of our Class A common stock could be negatively affected, and we could become subject to investigations by the stock exchange on which our securities are listed, the SEC or other regulatory authorities.
We have experienced rapid growth in recent periods. If we fail to manage our growth effectively, our financial performance may suffer.
We have experienced rapid growth over the last several years, which has placed a strain on our managerial, operational, research and development, sales and marketing, administrative and
 
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financial infrastructure. For example, we increased our total number of full-time employees from 49 as of December 31, 2010 to 718 as of March 31, 2014. We have also established operations in other countries. Our expansion has placed, and our expected future growth will continue to place, a significant strain on our managerial, operational, research and development, sales and marketing, administrative, financial and other resources.
Our success will depend in part upon our ability to manage our growth effectively. To do so, we must continue to increase the productivity of our existing employees and to hire, train and manage new employees as needed. To manage domestic and international growth of our operations and personnel, we will need to continue to improve our operational, financial and management controls and our reporting processes and procedures, and implement more extensive and integrated financial and business information systems. These additional investments will increase our operating costs, which will make it more difficult for us to offset any future revenue shortfalls by reducing expenses in the short term. Moreover, if we fail to scale our operations or manage our growth successfully, our business, financial condition and operating results could be adversely affected.
Consumers may be injured while engaging in activities that they self-capture with our products, and we may be exposed to claims, or regulations could be imposed, which could adversely affect our brand, operating results and financial condition.
Consumers use our cameras and accessories to self-capture their participation in a wide variety of physical activities, including extreme sports, which in many cases carry the risk of significant injury. We may be subject to claims if consumers are injured while using our products. Although we maintain insurance to help protect us from the risk of any such claims, such insurance may not be sufficient or may not to apply to all situations. Similarly, proprietors of establishments at which consumers engage in challenging physical activities could seek to ban the use of our products in their facilities to limit their own liability. In addition, if lawmakers or governmental agencies were to determine that the use of our products increased the risk of injury to all or a subset of our customers, they may pass laws or adopt regulations that limit the use of our products or increase our liability associated with the use of our products. Any of these events could adversely affect our brand, operating results or financial condition.
If our estimates or judgments relating to our critical accounting policies prove to be incorrect, our operating results could be adversely affected.
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, as provided in the section titled “Management’s discussion and analysis of financial condition and results of operations.” The results of these estimates form the basis for making judgments about the carrying values of assets, liabilities and equity, and the amount of revenue and expenses that are not readily apparent from other sources. Our operating results may be adversely affected if our assumptions change or if actual circumstances differ from those in our assumptions, which could cause our operating results to fall below the expectations of securities analysts and investors, resulting in a decline in our stock price. Significant assumptions and estimates used in preparing our consolidated financial statements include those related to revenue recognition, sales incentives, stock-based compensation expense, POP displays, excess and obsolete inventory write-downs, warranty reserves, long-lived assets and accounting for income taxes including deferred tax assets and liabilities.
 
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Our credit facility provides our lenders with a first-priority lien against substantially all of our assets and contains financial covenants and other restrictions on our actions that may limit our operational flexibility or otherwise adversely affect our financial condition.
In December 2012, we entered into a senior secured credit agreement, including a $120.0 million term loan that we expect to repay with the proceeds of this offering and a $50.0 million revolving credit facility that we expect to retain. Our credit agreement contains a number of restrictive covenants, and the terms of our credit facility may restrict our current and future operations, particularly our ability to respond to certain changes or to take future actions.
A failure by us to comply with the covenants or payment requirements specified in our credit agreement could result in an event of default under the agreement, which would give the lenders the right to terminate their commitments to provide additional loans under our revolving credit facility and to declare all borrowings outstanding, together with accrued and unpaid interest and fees, to be immediately due and payable. In addition, the lenders would have the right to proceed against the collateral we granted to them, which consists of substantially all our assets. If the debt under our credit facility were to be accelerated, we may not have sufficient cash or be able to sell sufficient collateral to repay this debt, which would have an immediate material adverse affect on our business, results of operations and financial condition.
We are exposed to increased regulatory oversight and incur increased costs as a result of being a public company.
As a public company, we are required to satisfy the listing requirements and rules of the NASDAQ Stock Market and incur significant legal, accounting and other expenses that we did not incur as a private company. Currently, our audit committee is comprised of two independent directors. The listing requirements and rules of the NASDAQ Stock Market require that the audit committee be composed of at least three independent members within one year of the issuer’s listing date. If we fail to find and elect an additional independent board member to serve on the audit committee, we would not be in compliance with the listing requirements and rules of the NASDAQ Stock Market. We will also incur costs associated with our public company reporting requirements and corporate governance requirements, including additional directors and officers liability insurance and requirements under the Sarbanes-Oxley Act, as well as rules implemented by the SEC and the NASDAQ Stock Market. These rules and regulations have increased, and will continue to increase, our legal and financial compliance costs and have made, and will continue to make, certain activities more time consuming and costly. Further, we have incurred costs in connection with hiring additional accounting, financial and compliance staff with appropriate public company experience and technical accounting knowledge. Any of these expenses could harm our business, operating results and financial condition.
We use open source software in our platform that may subject our technology to general release or require us to re-engineer our solutions, which may cause harm to our business.
We use open source software in connection with our services. From time to time, companies that incorporate open source software into their products have faced claims challenging the ownership of open source software and/or compliance with open source license terms. Therefore, we could be subject to suits by parties claiming ownership of what we believe to be open source software or noncompliance with open source licensing terms. Some open source software licenses require users who distribute or make available open source software as part of their software to publicly disclose all or part of the source code to such software and/or make available any
derivative works of the open source code on unfavorable terms or at no cost. While we monitor
 
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our use of open source software and try to ensure that none is used in a manner that would require us to disclose the source code or that would otherwise breach the terms of an open source agreement, such use could nevertheless occur and we may be required to release our proprietary source code, pay damages for breach of contract, re-engineer our applications, discontinue sales in the event re-engineering cannot be accomplished on a timely basis or take other remedial action that may divert resources away from our development efforts, any of which could adversely affect our business, financial condition or operating results.
Any significant disruption to our ecommerce business could result in lost sales.
Our sales through our ecommerce channel have been growing. Sales through GoPro.com generally have higher profit margins and provide us useful insight on the sales impact of certain of our marketing campaigns. Online sales are subject to a number of risks. System interruptions or delays could cause potential customers to fail to purchase our products and could harm our brand. The operation of our direct to consumer ecommerce business through GoPro.com depends on the ability to maintain the efficient and uninterrupted operation of online order-taking and fulfillment operations. Our ecommerce operations subject us to certain risks that could have an adverse effect on our operating results, including risks related to the computer systems that operate our website and related support systems, such as system failures, viruses, computer hackers and similar disruptions. If we are unable to continually add software and hardware, effectively upgrade our systems and network infrastructure and take other steps to improve the efficiency of our systems, system interruptions or delays could occur that adversely affect our operating results.
We utilize third party vendors for our customer-facing ecommerce technology, order management system and fulfillment in the United States and internationally. We depend on our technology vendors to manage “up-time” of the front-end ecommerce store, manage the intake of our orders, and export orders for fulfillment. In the future, we could begin to run all or a greater portion of our ecommerce components ourselves rather than use third party vendors. Any failure on the part of our third party ecommerce vendors or in our ability to transition third party services effectively could result in lost sales and harm our business.
Failure to adequately protect customer data could harm our brand and our reputation in the marketplace.
Changing regulations and laws governing the Internet, data privacy, data protection and ecommerce transactions (including taxation, pricing and electronic communications) could impede the growth of our ecommerce business, increase our cost of doing business and limit our ability to collect and use information collected from our customers. Further, new regulations limiting our ability to collect, use and disclose customer data, or imposing additional requirements with respect to the retention and security of customer data, could limit our marketing activities and could adversely affect our business and financial condition.
In our ecommerce services, we process, store and transmit customer data. We also collect customer data through certain marketing activities. Failure to prevent or mitigate data loss or other security breaches, including breaches of our vendors’ technology and systems, could expose us or our customers to a risk of loss or misuse of such information, adversely affect our operating results, result in litigation or potential liability for us and otherwise harm our business. Further, we are subject to general business regulations and laws, as well as regulations and laws specifically governing the Internet, ecommerce and electronic devices. Existing and future laws and regulations, or new interpretations of these laws, may adversely affect our ability to conduct our ecommerce business.
 
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If we fail to comply with environmental requirements, our business, financial condition, operating results and reputation could be adversely affected.
We are subject to various environmental laws and regulations including laws governing the hazardous material content of our products and laws relating to the collection of and recycling of electrical and electronic equipment. Examples of these laws and regulations include the EU Restrictions of Hazardous Substances Directive, or the RoHS Directive, and the EU Waste Electrical and Electronic Equipment Directive, or the WEEE Directive, as well as the implementing legislation of the EU member states. Similar laws and regulations have been passed or are pending in China, South Korea, Norway and Japan and may be enacted in other regions, including in the United States, and we are, or may in the future be, subject to these laws and regulations.
The RoHS Directive and the similar laws of other jurisdictions ban the use of certain hazardous materials such as lead, mercury and cadmium in the manufacture of electrical equipment, including our products. Although we have policies and procedures in place requiring our contract manufacturers and major component suppliers to comply with the RoHS Directive requirements, we cannot assure you that our manufacturers and suppliers consistently comply with these requirements. In addition, if there are changes to these or other laws (or their interpretation) or if new similar laws are passed in other jurisdictions, we may be required to re-engineer our products to use components compatible with these regulations. This re-engineering and component substitution could result in additional costs to us or disrupt our operations or logistics.
The WEEE Directive requires electronic goods producers to be responsible for the collection, recycling and treatment of such products. Changes in interpretation of the directive may cause us to incur costs or have additional regulatory requirements to meet in the future in order to comply with this directive, or with any similar laws adopted in other jurisdictions. Our failure to comply with past, present and future similar laws could result in reduced sales of our products, substantial product inventory write-offs, reputational damage, penalties and other sanctions, which could harm our business and financial condition. We also expect that our products will be affected by new environmental laws and regulations on an ongoing basis. To date, our expenditures for environmental compliance have not had a material impact on our results of operations or cash flows and, although we cannot predict the future impact of such laws or regulations, they will likely result in additional costs and may increase penalties associated with violations or require us to change the content of our products or how they are manufactured, which could have a material adverse effect on our business and financial condition.
New regulations related to conflict minerals may cause us to incur additional expenses and could limit the supply and increase the costs of certain metals used in the manufacturing of our products.
As a public company, we will be subject to new requirements under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or the Dodd-Frank Act, that will require us to diligence, disclose and report whether or not our products contain conflict minerals. The implementation of these new requirements could adversely affect the sourcing, availability and pricing of the materials used in the manufacture of components used in our products. In addition, we will incur additional costs to comply with the disclosure requirements, including costs related to conducting diligence procedures to determine the sources of conflict minerals that may be used or necessary to the production of our products and, if applicable, potential changes to products, processes or sources of supply as a consequence of such verification
 
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activities. It is also possible that we may face reputational harm if we determine that certain of our products contain minerals not determined to be conflict free or if we are unable to alter our products, processes or sources of supply to avoid such materials.
As an “emerging growth company” under the JOBS Act, we are permitted to, and intend to, rely on exemptions from certain disclosure requirements.
As an “emerging growth company” under the JOBS Act, we are permitted to, and intend to, rely on exemptions from certain disclosure requirements. In particular, we have not included all of the executive compensation related information that would be required in this prospectus if we were not an emerging growth company. In addition, for so long as we are an emerging growth company, which can last, at most, until the first fiscal year following the fifth anniversary of this offering, we will not be required to:
 
Ÿ 	 	have an auditor report on our internal control over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act;	
 
Ÿ 	 	comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (auditor discussion and analysis); and	
 
Ÿ 	 	submit certain executive compensation matters to shareholder advisory votes, such as “say on pay” and “say on frequency.”	
Although we intend to rely on certain exemptions provided in the JOBS Act, the exact implications of the JOBS Act for us are still subject to interpretations and guidance by the SEC and other regulatory agencies. Also, as our business grows, we may no longer satisfy the condition of an emerging growth company. We will remain an emerging growth company until the first fiscal year following the fifth anniversary of this offering, although if the market value of our Class A and Class B common stock that is held by non-affiliates exceeds $700.0 million as of June 30th of any year before the end of that five-year period, we would cease to be an emerging growth company as of the following December 31st. If we have more than $1.0 billion in annual revenue in a fiscal year, we would cease to be an emerging growth company as of the end of that fiscal year, and if we issue more than $1.0 billion in non-convertible debt over a three-year period, we would also cease to be an emerging growth company immediately. We are currently evaluating and monitoring developments with respect to these new rules and we cannot assure you that we will be able to enjoy part or all of the benefits from the JOBS Act. We have irrevocably elected not to avail ourselves of the JOBS Act 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.
We may not be able to secure additional financing on favorable terms, or at all, to meet our future capital needs.
In the future, we may require additional capital to respond to business opportunities, challenges, acquisitions or unforeseen circumstances and may determine to engage in equity or debt financings or enter into credit facilities for other reasons. We may not be able to timely secure additional debt or equity financing on favorable terms, or at all. If we raise additional funds through the issuance of equity or convertible debt or other equity-linked securities, our existing stockholders could suffer significant dilution. Any debt financing obtained by us in the future
 
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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, including potential acquisitions. If we are unable to obtain adequate financing or financing on terms satisfactory to us, when we require it, our ability to continue to grow or support our business and to respond to business challenges could be significantly limited.
Catastrophic events or political instability could disrupt and cause harm to our business.
Our headquarters is located in the San Francisco Bay Area of California, an area susceptible to earthquakes. A major earthquake or other natural disaster, fire, act of terrorism or other catastrophic event in California or elsewhere that results in the destruction or disruption of any of our critical business operations or information technology systems could severely affect our ability to conduct normal business operations and, as a result, our future operating results could be harmed.
Our key manufacturing, supply and distribution partners have global operations including in China, Singapore and the Netherlands as well as the United States. Political instability or catastrophic events in any of those countries could adversely affect our business in the future, our financial condition and operating results.
Risks related to this offering
There has been no prior market for our Class A common stock, our stock price may be volatile or may decline regardless of our operating performance, an active public trading market may not develop or be sustained following this offering, and you may not be able to resell your shares at or above the initial public offering price.
There has been no public market for our Class A common stock prior to this offering. The initial public offering price for our Class A common stock will be determined through negotiations between the underwriters and us and may vary from the market price of our Class A common stock following this offering. If you purchase shares of our Class A common stock in this offering, you may not be able to resell those shares at or above the initial public offering price. An active market for our Class A common stock may not develop upon the closing of this offering or, if it does develop, it may not be sustainable. The trading prices of the securities of newly public companies have historically been highly volatile. The market price of our Class A common stock may fluctuate significantly in response to numerous factors, many of which are beyond our control, including:
 
Ÿ 	 	actual or anticipated fluctuations in our revenue and other operating results;	
 
Ÿ 	 	the financial projections we may provide to the public, any changes in these projections or our failure to meet these projections;	
 
Ÿ 	 	failure of securities analysts to initiate or maintain coverage of us, changes in financial estimates by any securities analysts who follow our company, or our failure to meet these estimates or the expectations of investors;	
 
Ÿ 	 	announcements by us or our competitors of significant technical innovations, acquisitions, strategic partnerships, joint ventures or capital commitments;	
 
Ÿ 	 	changes in operating performance and stock market valuations of online marketing or other technology companies, or those in our industry in particular;	
 
Ÿ 	 	lawsuits threatened or filed against us; and	
 
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Ÿ 	 	other events or factors, including those resulting from war, incidents of terrorism or responses to these events.	
In addition, the stock markets have experienced extreme price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies. Stock prices of many companies have fluctuated in a manner unrelated or disproportionate to the operating performance of those companies. In the past, stockholders have instituted securities class action litigation following periods of market volatility. If we were to become involved in securities litigation, it could subject us to substantial costs, divert resources and the attention of management from our business and adversely affect our business.
Sales of substantial amounts of our Class A common stock in the public markets, or the perception that they might occur, could reduce the price that our Class A common stock might otherwise attain and may dilute your voting power and your ownership interest in us.
After the completion of the offering, we will have                  outstanding shares of our Class A and Class B common stock (                 shares of Class A and Class B common stock if the underwriters exercise in full their option to purchase additional shares). This number includes all the shares of our Class A common stock that we are selling in this offering, which may be resold immediately in the public market.
Subject to certain exceptions, we, all of our directors and officers and substantially all of our stockholders and option holders have agreed not to offer, sell or agree to sell, directly or indirectly, any shares of Class A or Class B common stock without the permission of the underwriters for a period of 180 days from the date of this prospectus, subject to extension in some circumstances. See “Shares eligible for future sale—Lock-up agreements” for additional information. After the lock-up agreements pertaining to this offering expire, we and our locked-up security holders will be able to sell our shares in the public market, subject to volume limitations under Rule 144 under the Securities Act and various vesting agreements. Sales of a substantial number of such shares upon expiration, or early release, of the lock-up (or the perception that such sales may occur) could cause our share price to fall.
The market price of the shares of our Class A common stock could decline as a result of sales of a substantial number of our shares in the public market or the perception in the market that the holders of a large number of shares intend to sell their shares.
The dual class structure of our common stock will have the effect of concentrating voting control with our Chief Executive Officer and other directors and their affiliates; this will limit or preclude your ability to influence corporate matters.
Our Class B common stock has 10 votes per share, and our Class A common stock, which is the stock we are offering in this offering, has one vote per share. Stockholders who hold shares of Class B common stock will hold approximately         % of the voting power of our outstanding capital stock following this offering. Our executive officers and directors and their affiliates will hold approximately         % of the outstanding voting power, with Mr. Woodman, our Chief Executive Officer, holding approximately         %, and, therefore, assuming no material sales of such shares, they will be able to control all matters submitted to our stockholders, including the election of directors, amendments of our organizational documents and any merger, consolidation, sale of all or substantially all of our assets or other major corporate transaction. This concentrated control will limit or preclude your ability to influence corporate matters for the foreseeable future. In addition,
 
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this may prevent or discourage unsolicited acquisition proposals or offers for our capital stock that you may feel are in your best interest as one of our stockholders.
We have broad discretion in the use of the net proceeds from this offering and may not use them effectively.
Our management will have broad discretion in the application of the net proceeds that we receive from this offering, including applications for working capital, possible acquisitions and other general corporate purposes, and the repayment of our term loan under our syndicated secured credit facility, which had an outstanding balance of $111.0 million as of March 31, 2014, and we may spend or invest these proceeds in a way with which our stockholders disagree. The failure by our management to apply these funds effectively could harm our business and financial condition. Pending their use, we may invest the net proceeds from this offering in a manner that does not produce income or that loses value. These investments may not yield a favorable return to our investors.
If securities analysts do not publish research or publish inaccurate or unfavorable research about our business, our stock price and trading volume could decline.
The trading market for our Class A common stock will depend in part on the research and reports that securities or industry analysts publish about us or our business. We currently do not have and may never obtain research coverage by securities analysts. If no securities analysts commence coverage of our company, the trading price for our stock would be negatively impacted. In the event we obtain securities analyst coverage, if one or more of the analysts who cover us downgrade our stock or publish inaccurate or unfavorable research about our business, our stock price would likely decline. If one or more of these analysts cease coverage of our company or fail to publish reports on us regularly, demand for our stock could decrease, which might cause our stock price and trading volume to decline.
We do not intend to pay dividends for the foreseeable future.
We currently intend to retain any future earnings to finance the operation and expansion of our business, and we do not expect to declare or pay any dividends in the foreseeable future. As a result, you may only receive a return on your investment in our Class A common stock if the market price of our Class A common stock increases. Our credit agreement contains a prohibition on the payment of cash dividends on our capital stock.
If you purchase shares of our Class A common stock in this offering, you will experience substantial and immediate dilution.
If you purchase shares of our Class A common stock in this offering, you will experience substantial and immediate dilution in the net tangible book value per share after giving effect to this offering of $             as of                 , 2014, based on an assumed initial public offering price of $             per share, which is the midpoint of the range set forth on the cover page of this prospectus, because the price that you pay will be substantially greater than the net tangible book value per share of the Class A common stock that you acquire. This dilution is due in large part to the fact that our earlier stockholders paid substantially less than the initial public offering price when they purchased their shares of our capital stock. You will experience additional dilution upon exercise of options to purchase Class A or Class B common stock under our equity incentive plans or under equity awards granted outside our equity incentive plan, if we issue Class A or Class B common stock to our employees under our equity incentive plans or if we otherwise issue additional shares of our capital stock. See “Dilution” for further information.
 
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Delaware law and provisions in our restated certificate of incorporation and amended and restated bylaws that will be in effect at the closing of this offering could make a merger, tender offer or proxy contest difficult, thereby depressing the trading price of our Class A common stock.
Following the closing of this offering, our status as a Delaware corporation and the anti-takeover provisions of the Delaware General Corporation Law may discourage, delay or prevent a change in control by prohibiting us from engaging in a business combination with an interested stockholder for a period of three years after the person becomes an interested stockholder, even if a change of control would be beneficial to our existing stockholders. In addition, our restated certificate of incorporation and amended and restated bylaws that will be in effect at the closing of this offering will contain provisions that may make the acquisition of our company more difficult without the approval of our board of directors, or otherwise adversely affect the rights of the holders of our Class A and Class B common stock, including the following:
 
Ÿ 	 	initially our board of directors will not be classified, but at such time as all shares of our Class B common stock have been converted into shares of our Class A common stock, our board of directors will be classified into three classes of directors with staggered three-year terms;	
 
Ÿ 	 	so long as any shares of our Class B common stock are outstanding, special meetings of our stockholders may be called by the holders of 10% of the outstanding voting power of all then outstanding shares of stock, a majority of our board of directors, the chairman of our board of directors, our chief executive office or our president, and thereafter only the chairman of our board of directors, our chief executive officer, our president or a majority of our board of directors will be authorized to call a special meeting of stockholders;	
 
Ÿ 	 	our stockholders will only be able to take action at a meeting of stockholders and not by written consent;	
 
Ÿ 	 	vacancies on our board of directors will be able to be filled only by our board of directors and not by stockholders;	
 
Ÿ 	 	directors may be removed from office with or without cause so long as our board of directors is not classified, and thereafter directors may be removed from office only for cause;	
 
Ÿ 	 	our restated certificate of incorporation provides for a dual class common stock structure in which holders of our Class B common stock will have the ability to control the outcome of matters requiring stockholder approval, even if they own significantly less than a majority of the outstanding shares of our Class A and Class B common stock, including the election of directors and significant corporate transactions, such as a merger or other sale of our company or its assets;	
 
Ÿ 	 	our restated certificate of incorporation will authorize undesignated preferred stock, the terms of which may be established, and shares of which may be issued, by our board of directors without stockholder approval and which may contain voting, liquidation, dividend and other rights superior to those of our Class A and Class B common stock; and	
 
Ÿ 	 	advance notice procedures will apply for stockholders to nominate candidates for election as directors or to bring matters before an annual meeting of stockholders.	
For information regarding these and other provisions, see “Description of capital stock.”
 
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 Special note regarding forward-looking statements and industry data
This prospectus contains forward looking statements that are based on our beliefs and assumptions regarding future events and circumstances, including statements regarding our strategies, our opportunities, developments in the markets in which we are active, our relationships with our customers, contract manufacturers, component suppliers and distributors and other matters. These statements are principally contained in the sections titled “Prospectus summary,” “Risk factors,” “Use of proceeds,” “Management’s discussion and analysis of financial condition and results of operations,” “Business,” and “Shares eligible for future sale.” Forward looking statements include statements that are not historical facts and can be identified by words such as “project,” “believe,” “anticipate,” “plan,” “expect,” “estimate,” “intend,” “continue,” “should,” “would,” “could,” “potentially,” “will” or “may,” or other similar words and phrases.
Forward-looking statements are subject to known and unknown risks, uncertainties and other factors that could cause actual results to differ materially from the results anticipated by these forward-looking statements. These risks, uncertainties and factors include those we discuss in this prospectus in the section titled “Risk factors.” You should read these risk factors and the other cautionary statements made in this prospectus as being applicable to all related forward-looking statements wherever they appear in this prospectus. It is not possible for us to predict all risks that could affect us, 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. Moreover, new risks emerge from time to time.
The forward-looking statements made in this prospectus relate only to events as of the date on which the statements are made. We undertake no obligation to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
You should read this prospectus and the documents 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.
In this prospectus, we refer to metrics related to our presence on third-party social media services, such as the number of “likes” on our Facebook page and the number of users who have shared videos on YouTube with “GoPro” in the title. These social media services generally have policies in place to discourage duplicative user accounts or artificial activity designed to inflate such metrics. We are unable to independently verify the metrics provided by these social media services. We are also unable to determine whether these figures include individuals with multiple accounts on one service, deactivated or inactive accounts, or multiple views, “likes” or similar actions by the same user. We have relied on the calculations and analysis conducted by these services to present metrics that, as closely as possible, reflect genuine users and legitimate user activity on their social media services.
This prospectus also contains estimates and other statistical data that we obtained from industry publications, surveys, forecasts and reports. These industry publications generally indicate that they have obtained their information from sources believed to be reliable, but do not guarantee the accuracy and completeness of their information. This information involves a number of
 
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assumptions and limitations, and you are cautioned not to give undue weight to these estimates. Although we have not independently verified the accuracy or completeness of the data contained in these industry publications and reports, based on our industry experience we believe that the publications are reliable and the conclusions contained in the publications and reports are reasonable.
 
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 Use of proceeds
We estimate that we will receive net proceeds from the sale of the                  shares of Class A common stock that we are selling in this offering of approximately $             million, based on an assumed initial public offering price of $         per share, the midpoint of the price range set forth on the cover page of this prospectus, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. If the underwriters exercise their option to purchase additional shares in full, we estimate that our net proceeds will be approximately $             million, 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 Class A common stock by the selling stockholders.
Each $1.00 increase or decrease in the assumed initial public offering price would increase or decrease, as applicable, the net proceeds to us by $             million, assuming the number of shares Class A common stock offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting estimated underwriting discounts and commissions.
The principal purposes of this offering are for general corporate purposes, including working capital, and to repay our term loan under our credit facility, to create a public market for our Class A common stock and to facilitate our future access to the public equity markets. At March 31, 2014, the outstanding balance of the term loan was $111.0 million and bore interest at the rate of 2.75% per annum. The term loan has scheduled quarterly principal repayments with the remaining balance due on December 21, 2015. See “Management’s discussion and analysis of financial condition and results of operations—Liquidity and capital resources—Credit facility” for additional information regarding our term loan.
We may also use a portion of the net proceeds to acquire or invest in complementary businesses, technologies or assets. However, we have no present commitments or agreements to enter into any acquisitions or make any investments.
Our management will have significant flexibility in applying the net proceeds from this offering, and investors will be relying on the judgment of our management regarding the application of these net proceeds. Pending the uses described above, 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. The goal with respect to the investment of these net proceeds will be capital preservation and liquidity so that these funds are readily available to fund our operations.
 Dividend policy
On December 19, 2012, we declared a cash dividend pursuant to which each holder of our common stock and redeemable convertible preferred stock as of December 21, 2012 received $1.050965 for every share of our common stock then held by such stockholder (with each stockholder of redeemable convertible preferred stock being treated as holding the number of shares of common stock then issuable upon conversion of all shares of redeemable convertible preferred stock held by such stockholder). We do not currently intend to pay any cash dividends on our Class A common stock or Class B common stock for the foreseeable future. We expect to retain future earnings, if any, to fund the development and growth of our business. Any future determination to pay dividends on our Class A common stock or Class B common stock will be at the discretion of our board of directors and will depend upon, among other factors, our financial condition, operating results, current and anticipated cash needs, plans for expansion and other factors that our board of directors may deem relevant. In addition, our credit agreement restricts our ability to pay dividends.
 
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 Capitalization
The following table sets forth our capitalization as of March 31, 2014:
 
Ÿ 	 	on an actual basis;	
 
Ÿ 	 	on a pro forma basis to reflect the conversion of all outstanding shares of our redeemable convertible preferred stock into 30,523,036 shares of our Class B common stock in connection with the closing of this offering;	
 
Ÿ 	 	on a pro forma as adjusted basis to further reflect (i) the application of a portion of the proceeds of this offering to repay in full the outstanding balance of our term loan, which was $111.0 million at March 31, 2014, (ii) the conversion by the selling stockholders of              shares of our Class B common stock into the same number of shares of our Class A common stock in connection with the closing of this offering, (iii) the sale by us of             shares of Class A common stock in this offering at an assumed initial public offering price of $         per share, the midpoint of the price range set forth on the cover page of this prospectus, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us and (iv) the filing and effectiveness of our restated certificate of incorporation in connection with the closing of this offering.	
The unaudited pro forma and pro forma as adjusted information below is illustrative only, and total stockholders’ equity and total capitalization following the completion of this offering will be adjusted based on the actual offering price and other terms of our offering determined at pricing. You should read this table together with the section titled “Management’s discussion and analysis of financial condition and results of operations” and our financial statements, related notes and other financial information appearing elsewhere in this prospectus.
 
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   	  	As of March 31, 2014	 	
(in thousands, except share amounts) (unaudited)	  	Actual	 	 	Pro forma	 	 	Pro forma
as adjusted(1)	 	
 	 	
Long-term debt, including current portion	  	 	110,666	  	 	 	110,666	  	 				
Redeemable convertible preferred stock, $0.0001 par value, 36,000,000 shares authorized, 30,523,036 shares issued and outstanding; no shares authorized, issued or outstanding, pro forma or pro forma as adjusted	  	 	77,213	  	 	 	—	  	 				
				
Stockholders’ equity (deficit) :	  				 				 				
Preferred stock, $0.0001 par value; no shares authorized, issued or outstanding, actual; 5,000,000 shares authorized, no shares issued or outstanding, pro forma and pro forma as adjusted	  	 	—	  	 	 	—	  	 	 	 	  	
Common stock, $0.0001 par value, 150,000,000 shares authorized, 81,899,442 shares issued and outstanding, actual; 112,422,478 shares issued and outstanding, proforma; no shares issued and outstanding, pro forma as adjusted	  	 	8	  	 	 	11	  	 	 	 	  	
Class A common stock, $0.0001 par value, 500,000,000 shares authorized, no shares issued and outstanding, actual; no shares issued and outstanding, pro forma,                  shares issued and outstanding, pro forma as adjusted	  	 	—	  	 	 	—	  	 				
Class B common stock, $0.0001 par value, 150,000,000 shares authorized, no shares issued and outstanding, actual; no shares issued and outstanding, pro forma,                  shares issued and outstanding, pro forma as adjusted	  	 	—	  	 	 	—	  	 				
Additional paid-in capital	  	 	19,218	  	 	 	96,428	  	 				
Accumulated deficit	  	 	(8,835	) 	 	 	(8,835	) 	 				
	  	 	 	 	
Total stockholders’ equity (deficit)	  	 	10,391	  	 	 	87,604	  	 				
	  	 	 	 	
Total capitalization	  	$	198,270	  	 	$	198,270	  	 	$	            	  	

(1)	 	Each $1.00 increase or decrease in the assumed initial public offering price of $             per share, the midpoint of the price range set forth on the cover page of this prospectus, would increase or decrease, respectively, our cash, working capital, total assets and total stockholders’ equity by $             million, assuming 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. If the underwriters exercise in full their option to purchase additional shares, the amount of pro forma as adjusted additional paid-in capital, total stockholders’ equity and total capitalization would increase by approximately $             million and we would have                  shares of Class A common stock issued and outstanding.	
The number of shares of our Class A and Class B common stock to be outstanding after this offering is based on 112,422,478 shares of common stock outstanding as of March 31, 2014 and excludes:
 
Ÿ 	 	27,798,919 shares of Class B common stock issuable upon the exercise of stock options outstanding as of March 31, 2014 with a weighted average exercise price of $3.24 per share and 570,000 shares of Class B common stock issuable pursuant to outstanding RSUs under our 2010 Plan;	
 
Ÿ 	 	The effect of the contribution back to us of a number of shares of Class B common stock equal to the number of shares we issue upon exercise of an outstanding option for the purchase of 6,584,427 shares of Class B common stock; see “Certain relationships and related person transactions - Equity grants and contribution agreement;”	
 
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Ÿ 	 	                 shares of Class B common stock issuable upon the exercise of options with an exercise price of $         per share and                  shares of Class B common stock issuable upon settlement of RSUs granted after March 31, 2014;	
 
Ÿ 	 	398,121 shares of Class B common stock subject to a right of repurchase by us outstanding as of March 31, 2014;	
 
Ÿ 	 	                 shares of Class B common stock subject to a right of repurchase by us issued after March 31, 2014;	
 
Ÿ 	 	                 shares to be reserved for future issuance under our 2014 Plan, which will become effective on the date immediately prior to the date of this prospectus. Upon completion of this offering, any remaining shares available for issuance under our 2010 Plan will be added to the shares reserved under of 2014 Plan and we will cease granting awards under our 2010 Plan; and	
 
Ÿ 	 	                 shares to be reserved for future issuance under our ESPP, which will become effective on the date of this prospectus.	
Our 2014 Plan and ESPP also provide for automatic annual increases in the number of shares reserved under the plans each year, as more fully described in “Executive compensation—Employee benefit plans.”
 
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 Dilution
If you invest in our Class A common stock in this offering, your interest will be diluted to the extent of the difference between the initial public offering price per share of our Class A common stock and the net tangible book value of our Class A and Class B common stock per share immediately after this offering. As of March 31, 2014, our pro forma net tangible book value was $67.5 million, or $0.60 per share. Pro forma net tangible book value per share represents the amount of our total tangible assets less our total liabilities, divided by the number of our outstanding shares of Class A and Class B common stock, after giving effect to the conversion of all outstanding shares of our redeemable convertible preferred stock into shares of our Class B common stock in connection with the closing of this offering.
After giving further effect to (i) the application of a portion of the proceeds of this offering to repay in full the outstanding balance of our term loan, which was $111.0 million as of March 31, 2014, (ii) the conversion by the selling stockholders of                  shares of our Class B common stock into the same number of shares of our Class A common stock immediately prior to the completion of this offering, (iii) the sale by us of                  shares of Class A common stock in this offering at an assumed initial public offering price of $         per share, the midpoint of the price range set forth on the cover page of this prospectus, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us and (iv) the filing and effectiveness of our restated certificate of incorporation in connection with the closing of this offering, our pro forma as adjusted net tangible book value as of March 31, 2014 would have been $         million or $         per share. This represents an immediate increase in pro forma net tangible book value of $         per share to existing stockholders and an immediate dilution of $         per share to new investors purchasing shares of Class A common stock at the initial public offering price. The following table illustrates this per share dilution:

Assumed initial public offering price per share of our Class A common stock	  	 	 	 	  	$	            	  	
Pro forma net tangible book value per share as of March 31, 2014	  	$	            	  	  				
Increase in pro forma net tangible book value per share attributable to new investors	  				  				
	  	 	 	 	  				
Pro forma as adjusted net tangible book value per share after this offering	  				  				
	  				  	 	 	 	
Dilution per share to new investors	  				  	$	            	  	
 	 	
A $1.00 increase or decrease in the assumed initial public offering price of $         per share, the midpoint of the 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 after this offering by $         per share and the dilution to new investors by $         per share, assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. If the underwriters exercise in full their option to purchase             additional shares of Class A common stock from us, the pro forma as adjusted net tangible book value per share after giving effect to this offering would be $         per share, representing an immediate increase to existing stockholders of $            , and immediate dilution to new investors in this offering of $         per share.
 
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The following table summarizes, as of March 31, 2014, on the pro forma as adjusted basis described above, the difference between our existing stockholders and the purchasers of shares of Class A common stock in this offering with respect to the number of shares of Class A common stock purchased from us, the total consideration paid to us and the average price paid per share paid to us, based on an assumed initial public offering price of $         per share, the midpoint of the price range set forth on the cover page of this prospectus, before deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us:

    	  	Shares purchased	 	  	Total consideration	 	  	Average price
per share	 	
 	  	Number	  	Percent	 	  	Amount	 	  	Percent	 	  			
 	 	
Existing stockholders	  		  	 	%	  	  	$	                	  	  	 	%	  	  	$	                	  	
New investors	  		  				  				  				  				
	  	 	 	
Total	  		  	 	100.0%	  	  	$	 	  	  	 	100.0%	  	  	$	 	  	
 	 	
A $1.00 increase or decrease in the assumed initial public offering price of $         per share would increase or decrease, total consideration paid by new investors by $         million and increase or decrease the percent of total consideration paid to us by new investors by         %, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same.
The sale of             shares of Class A common stock to be sold by the selling stockholders in this offering will reduce the number of shares held by existing stockholders to             shares, or         % of the total shares                 outstanding, and will increase the number of shares held by investors participating in this offering to             shares, or         % of the total shares outstanding.
If the underwriters exercise in full their option to purchase                  additional shares of Class A common stock from us, the following will occur:
 
Ÿ 	 	the percentage of shares of Class A and Class B common stock held by existing stockholders after the completion of this offering, and after giving effect to the sale by the selling stockholders of             shares of Class A common stock in this offering, will be approximately         % of the total number of shares of our Class A and Class B common stock outstanding after this offering;	
 
Ÿ 	 	the number of shares of Class A common stock held by new investors after the closing of this offering will be                 , or approximately         % of the total number of shares of our Class A and Class B common stock outstanding after this offering.	
The number of shares of our Class A and Class B common stock to be outstanding after this offering are based on 112,422,478 shares of common stock outstanding as of March 31, 2014 and excludes:
 
Ÿ 	 	27,798,919 shares of Class B common stock issuable upon the exercise of stock options outstanding as of March 31, 2014 with a weighted average exercise price of $3.24 per share and 570,000 shares of Class B common stock issuable pursuant to outstanding RSUs, under our 2010 Plan;	
 
Ÿ 	 	the effect of the contribution back to us of a number of shares of Class B common stock equal to the number of shares we issue upon exercise of an outstanding option for the purchase of 6,584,427 shares of Class B common stock; see “Certain relationships and related person transactions—Equity grants and contribution agreement;”	
 
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Ÿ 	 	             shares of Class B common stock issuable upon the exercise of options with an exercise price of $         per share and                  shares of Class B common stock issuable upon settlement of RSUs granted after March 31, 2014;	
 
Ÿ 	 	398,121 shares of Class B common stock subject to a right of repurchase by us outstanding as of March 31, 2014;	
 
Ÿ 	 	                 shares of Class B common stock subject to a right of repurchase by us issued after March 31, 2014;	
 
Ÿ 	 	             shares of Class A common stock to be reserved for future issuance under our 2014 Plan, which will become effective on the date immediately prior to the date of this prospectus. Upon completion of this offering, any remaining shares available for issuance under our 2010 Plan will be added to the shares reserved under of 2014 Plan and we will cease granting awards under our 2010 Plan; and	
 
Ÿ 	 	             shares of Class A common stock to be reserved for future issuance under our ESPP, which will become effective on the date of this prospectus.	
Our 2014 Plan and ESPP also provide for automatic annual increases in the number of shares reserved under the plans each year, as more fully described in “Executive compensation—Employee benefit plans.”
The above discussion and tables assume no exercise of our stock options or settlement of RSUs outstanding as of March 31, 2014. If all of these options were exercised and RSUs settled, then investors would experience further dilution.
 
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 Selected consolidated financial data
You should read the selected consolidated financial data below in conjunction with “Management’s discussion and analysis of financial condition and results of operations” and the consolidated financial statements, related notes and other financial information included elsewhere in this prospectus. The selected consolidated financial data in this section are not intended to replace the consolidated financial statements and are qualified in their entirety by the consolidated financial statements and related notes included elsewhere in this prospectus.
The following table presents selected consolidated financial data. We derived the consolidated statements of operations data for 2011, 2012 and 2013 and the balance sheet data as of December 31, 2012 and 2013 from our audited consolidated financial statements included elsewhere in this prospectus. We derived the consolidated statements of operations data for 2010 from our audited consolidated financial statements that are not included in this prospectus, and have reclassified certain operating expenses for 2010 and have now included $0.7 million (unaudited) in sales and marketing expenses that was previously classified in general and administrative expenses, to conform with current presentation. The consolidated statements of operations data for the three months ended March 31, 2013 and 2014 and the consolidated balance sheet data as of March 31, 2014 have been derived from our unaudited consolidated financial statements included elsewhere in this prospectus. We have prepared the unaudited consolidated financial statements on the same basis as the audited consolidated financial statements and have included, in our opinion, all adjustments, consisting only of normal recurring adjustments that we consider necessary to state fairly the financial information set forth in those financial statements. Our historical results are not necessarily indicative of the results to be expected in the future, and our interim results should not necessarily be considered indicative of results we expect for the full year.
 
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Consolidated statements of operations data:	  	Year ended December 31,	 	 	Three months ended
March 31,	 	
(in thousands, except per share amounts)	  	2010	 	 	2011	 	  	2012	 	 	2013	 	 	2013	 	 	2014	 	
 	 	 	 	 	 	 	 	 	 	
Revenue	  	$	64,464	  	 	$	234,238	  	  	$	526,016	  	 	$	985,737	  	 	$	255,057	  	 	$	235,716	  	
Cost of revenue(1)	  	 	31,719	  	 	 	111,683	  	  	 	298,530	  	 	 	623,953	  	 	 	165,628	  	 	 	139,202	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Gross profit	  	 	32,745	  	 	 	122,555	  	  	 	227,486	  	 	 	361,784	  	 	 	89,429	  	 	 	96,514	  	

Operating expenses:	  				 				  				 				 				 				
Research and development(1)	  	 	1,394	  	 	 	8,644	  	  	 	36,115	  	 	 	73,737	  	 	 	12,012	  	 	 	28,739	  	
Sales and marketing(1)	  	 	13,860	  	 	 	64,375	  	  	 	116,855	  	 	 	157,771	  	 	 	35,673	  	 	 	41,341	  	
General and administrative(1)	  	 	5,634	  	 	 	10,757	  	  	 	20,899	  	 	 	31,573	  	 	 	6,988	  	 	 	9,878	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total operating expenses	  	 	20,888	  	 	 	83,776	  	  	 	173,869	  	 	 	263,081	  	 	 	54,673	  	 	 	79,958	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating income	  	 	11,857	  	 	 	38,779	  	  	 	53,617	  	 	 	98,703	  	 	 	34,756	  	 	 	16,556	  	
Other income (expense), net	  	 	(29	) 	 	 	12	  	  	 	(407	) 	 	 	(7,374	) 	 	 	(1,694	) 	 	 	(1,625	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Income before income taxes	  	 	11,828	  	 	 	38,791	  	  	 	53,210	  	 	 	91,329	  	 	 	33,062	  	 	 	14,931	  	
Income tax expense	  	 	248	  	 	 	14,179	  	  	 	20,948	  	 	 	30,751	  	 	 	10,027	  	 	 	3,882	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income	  	$	11,580	  	 	$	24,612	  	  	$	32,262	  	 	$	60,578	  	 	$	23,035	  	 	$	11,049	  	

Weighted-average shares used to compute net income per share attributable to common stockholders(2):	  				 				  				 				 				 				
Basic	  	 	67,207	  	 	 	73,481	  	  	 	74,226	  	 	 	81,018	  	 	 	80,768	  	 	 	81,582	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Diluted	  	 	73,160	  	 	 	78,551	  	  	 	74,226	  	 	 	98,941	  	 	 	98,457	  	 	 	100,783	  	

Net income per share attributable to common stockholders(2):	  				 				  				 				 				 				
Basic	  	$	0.17	  	 	$	0.26	  	  	$	0.07	  	 	$	0.54	  	 	$	0.21	  	 	$	0.10	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Diluted	  	$	0.16	  	 	$	0.24	  	  	$	0.07	  	 	$	0.47	  	 	$	0.18	  	 	$	0.08	  	

Pro forma net income per share attributable to common stockholders (unaudited)(2):	  				 				  				 				 				 				
Basic	  				 				  				 	$	0.54	  	 				 	$	0.10	  	
	  				 				  				 	 	 	 	 				 	 	 	 	
Diluted	  				 				  				 	$	0.47	  	 				 	$	0.08	  	

Pro forma weighted-average shares used to compute net income per share attributable to common stockholders (unaudited)(2):	  				 				  				 				 				 				
Basic	  				 				  				 	 	111,541	  	 				 	 	112,105	  	
	  				 				  				 	 	 	 	 				 	 	 	 	
Diluted	  				 				  				 	 	129,464	  	 				 	 	131,306	  	

Supplemental pro forma net income per share attributable to common stockholders (unaudited)(2):	  				 				  				 				 				 				
Basic	  				 				  				 				 				 				
	  				 				  				 	 	 	 	 				 	 	 	 	
Diluted	  				 				  				 				 				 				

Supplemental pro forma weighted-average shares used to compute net income per share attributable to common stockholders (unaudited)(2):	  				 				  				 				 				 				
Basic	  				 				  				 				 				 				
	  				 				  				 	 	 	 	 				 	 	 	 	
Diluted	  				 				  				 				 				 				

Other financial information:	  				 				  				 				 				 				
Adjusted EBITDA(3)	  	$	12,748	  	 	$	52,873	  	  	$	75,288	  	 	$	133,726	  	 	$	40,923	  	 	$	28,627	  	

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(1)	 	Includes stock-based compensation expense as follows:	

   	  	Year ended December 31,	 	  	Three months ended
March 31,	 	
 	  	2010	 	  	2011	 	  	2012	 	  	2013	 	  	2013	 	  	2014	 	
 	 	  	 	 	 	  	 	 	 	
Cost of revenue	  	$	10	  	  	$	122	  	  	$	333	  	  	$	690	  	  	$	220	  	  	$	168	  	
Research and development	  	 	73	  	  	 	261	  	  	 	1,452	  	  	 	3,003	  	  	 	441	  	  	 	1,401	  	
Sales and marketing	  	 	323	  	  	 	7,690	  	  	 	6,335	  	  	 	5,670	  	  	 	1,204	  	  	 	1,414	  	
General and administrative	  	 	268	  	  	 	902	  	  	 	1,036	  	  	 	1,524	  	  	 	230	  	  	 	1,054	  	

Total stock-based compensation expense	  	$	674	  	  	$	8,975	  	  	$	9,156	  	  	$	10,887	  	  	$	2,095	  	  	$	4,037	  	

(2)	 	See Note 8 of our consolidated financial statements included elsewhere in this prospectus for an explanation of the calculations of our historical basic and diluted net income per share attributable to common stockholders and our pro forma and supplemental pro forma unaudited basic and diluted net income per share.	

   	  	December 31,	 	 	March 31,	 	
(in thousands)	  	2012	 	 	2013	 	 	2014	 	

Consolidated balance sheet data:	  				 				 				
Cash	  	$	36,485	  	 	$	101,410	  	 	$	111,215	  	
Working capital	  	 	69,618	  	 	 	57,446	  	 	 	66,999	  	
Total assets	  	 	246,665	  	 	 	439,671	  	 	 	355,200	  	
Total indebtedness	  	 	129,395	  	 	 	113,612	  	 	 	110,666	  	
Redeemable convertible preferred stock	  	 	77,138	  	 	 	77,198	  	 	 	77,213	  	
Total stockholders’ equity (deficit)	  	 	(79,741	) 	 	 	(5,366	) 	 	 	10,391	  	

(3)	 	See “Prospectus summary—Summary consolidated financial data – Adjusted EBITDA” for additional information and a reconciliation of net income to adjusted EBITDA.	
 
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 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 consolidated financial statements, related notes and other financial information appearing elsewhere in this prospectus. In addition to historical consolidated financial information, the following discussion contains forward-looking statements that reflect our plans, estimates and beliefs. Our actual results could differ materially from those discussed in the forward-looking statements as a result of a variety of factors, including but not limited to, those discussed in “Risk factors” and elsewhere in this prospectus.
Overview
GoPro is transforming the way consumers capture, manage, share and enjoy meaningful life experiences. We do this by enabling people to capture compelling, immersive photo and video content of themselves participating in their favorite activities.
We were founded in 2004 to address the limitations of traditional cameras. In 2004, we shipped our first product, a wrist-mounted, waterproof, film-based capture device, and in 2006 we shipped our first digital capture device, the Digital HERO. We introduced our first HD capture device in 2009, the HD HERO, and we introduced our current HERO3+ family of capture devices in late 2013. We also sell mountable and wearable accessories that enable professional quality capture at affordable prices.
We have continued to enhance our product offering by providing software solutions that address the pain points of managing, editing and sharing content. GoPro Studio enables our customers to easily edit and share simple or complex videos. The GoPro App enables customers to easily and wirelessly manage and share content from our HERO capture devices.
Since we launched our first HD camera in 2009, we have experienced rapid growth. In 2011, 2012, 2013 and the three months ended March 31, 2014, we generated revenue of $234.2 million, $526.0 million, $985.7 million and $235.7 million and reported net income of $24.6 million, $32.3 million, $60.6 million and $11.0 million, respectively. Substantially all of our revenue has been generated from the sale of cameras and accessories.
Our sales strategy initially targeted independent specialty retailers focused on action sports markets, which we believe helped to establish the authenticity of our brand. We now sell our products both directly and through distribution. Our direct channel includes big box, mid-market and independent specialty retailers, as well as our website. We use our distribution channel to sell internationally and into certain specialty markets. As of March 31, 2014, our products were sold to customers in more than 100 countries and through more than 25,000 retail outlets. Sales outside of the United States represented 35%, 47%, 49% and 53% of our revenue for 2011, 2012, 2013 and the three months ended March 31, 2014, respectively.
We believe consumer demand for compelling content, combined with our self-capture technology and the popularity of social media, create a significant media opportunity for GoPro. GoPro programming, a combination of GoPro originally produced content and “best of” UGC, has developed a growing audience. To scale this, we have built a team of production professionals who regularly produce content based on inspiring stories from around the world, captured exclusively with our capture devices. In addition, we actively curate and redistribute,
 
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with permission, UGC as GoPro-branded content through the GoPro Network, which includes the GoPro Channels on Facebook, Instagram, Twitter, Virgin America, Xbox Live and YouTube.
We face potential challenges that could limit our ability to take advantage of these opportunities, including the risk that we may not be able to continue to develop and introduce new products and attract new customers. We do not expect to sustain or increase our revenue growth rates. In addition, we rely on a small number of retailer and distributor customers for a significant portion of our revenue. For 2011, 2012, 2013 and the three months ended March 31, 2014, one retailer accounted for 15%, 15%, 17% and 13% of our revenue, respectively.
We rely on contract manufacturers for the production of our cameras and accessories. All of the components that go into the manufacture of our cameras and accessories are sourced from third-party suppliers, and some of these suppliers are the sole source for important components. We utilize third-party logistics providers for product fulfillment.
Key business metrics
In addition to the measures presented in our consolidated financial statements, we use the following key metrics to evaluate our business, measure our performance, develop financial forecasts and make strategic decisions.

   	  	Year ended December 31,	 	  	Three months ended
March 31,	 	
(in thousands)	  	2011	 	  	2012	 	  	2013	 	  	2013	 	  	2014	 	
 	 	  	 	 	 	  	 	 	 	
Key business metrics:	  				  				  				  				  				
Units shipped	  	 	1,145	  	  	 	2,316	  	  	 	3,849	  	  	 	954	  	  	 	852	  	
Adjusted EBITDA	  	$	52,873	  	  	$	75,288	  	  	$	133,726	  	  	$	40,923	  	  	$	28,627	  	

Ÿ 	 	Units shipped.     Units shipped represents the number of individual packaged camera units that are shipped during a reporting period, net of any returns. Packaged camera units include a waterproof housing, a battery, selected mounts and other accessories which vary by model. We monitor units shipped on a daily basis as it is a key indicator of revenue trends for a reporting period. We use units shipped to help optimize our fulfillment operations and shipment allocations in order to better maintain operating efficiencies and improve customer satisfaction.	
 
Ÿ 	 	Adjusted EBITDA.     Adjusted EBITDA is a non-GAAP financial measure that we calculate as net income (loss), adjusted after excluding the impact of: provision (benefit) for income taxes, interest income, interest expense, depreciation and amortization, POP display amortization and stock-based compensation. We use adjusted EBITDA as a key measure to understand and evaluate our core operating performance and trends, to prepare and approve our annual budget and to develop short- and long-term operational plans. In particular, the exclusion of certain expenses in calculating adjusted EBITDA can provide a useful measure for period-to-period comparisons of our business. 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. See “Prospectus summary—Summary consolidated financial data—Adjusted EBITDA” for additional information and a reconciliation of net income to adjusted EBITDA.	
 
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Factors affecting performance
We believe that our future success will be dependent on many factors, including those further discussed below. While these areas represent opportunities for us, they also represent challenges and risks that we must successfully address in order to continue the growth of our business and improve our results of operations.
 
Ÿ 	 	Investing in research and development.     We believe that our performance is significantly dependent on the investments we make in research and development and that we must continually develop and introduce innovative new products, enhance existing products and effectively stimulate customer demand for existing and future products. If we fail to innovate and enhance our product offerings, our brand, market position and revenue may be adversely affected. Further if our research and development efforts are not successful, we will not recover the investments that we make in this aspect of our business.	
 
Ÿ 	 	Investing in sales and marketing.     We intend to continue to invest significant resources in our marketing, advertising and brand management efforts. Sales and marketing investments will often occur in advance of any sales benefits from these activities, and it may be difficult for us to determine if we are efficiently allocating our resources in this area.	
 
Ÿ 	 	Leveraging media content.     We expect to increase our investment in the development of the GoPro Network and its related content. We believe we have significant opportunities to establish new revenue streams from these investments. However, we do not have significant experience deriving revenue from the distribution of GoPro content, and we cannot be assured that these investments will result in increased revenue or profitability. 	
 
Ÿ 	 	Expanding into new vertical markets and growing internationally.     Our long-term growth will depend in part on our continued ability to expand our customer base and increase revenue from international markets. We intend to expand into new vertical markets and to increase our presence globally through the active promotion of our brand, the formation of strategic partnerships, the introduction of new products and the growth of our international sales channel.	
 
Ÿ 	 	Seasonality.     Historically, we have experienced the highest levels of revenue in the fourth quarter of the year, coinciding with the holiday shopping season in the United States and Europe. Accordingly, we have historically introduced our newest generation of product offerings just prior to this peak season. Given the significant seasonality of our sales, timely and effective product introductions and forecasting for this season are critical to our operations.	
Components of our results of operations and financial condition
Revenue
Our revenue is comprised of product revenue, net of returns and sales incentives:
 
Ÿ 	 	Product revenue.     Product revenue is derived from the sale of our HERO line of cameras and accessories directly to retailers and through GoPro.com, as well as through our network of domestic and international distributors.	
 
Ÿ 	 	Returns and sales incentives.     Our standard terms and conditions of sale do not allow for product returns and we generally do not allow product returns other than under warranty. However, we have entered into contracts with certain large retailers and distributors with terms and conditions that allow for limited product returns rights. Upon shipment of our	
 
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 	product to customers with such rights, we reduce revenue equal to the estimated future returns related to the current period product revenue. Additionally, we offer price protection discounts to certain customers when new capture devices are released. We record price protection discounts, as a reduction in revenue, based on shipments subject to price protection. Discounts recorded are based on an evaluation of inventory held by the customer at the time the price protection offer is extended.	
See “—Critical accounting policies” for a more detailed discussion of our revenue recognition policy.
Cost of revenue
Our cost of revenue is comprised of the following:
 
Ÿ 	 	manufacturing costs of our products payable to third-party contract manufacturers;	
 
Ÿ 	 	third-party logistics costs;	
 
Ÿ 	 	costs to procure components directly from our suppliers;	
 
Ÿ 	 	inbound and outbound freight costs and duties;	
 
Ÿ 	 	costs associated with the repair of products under warranty;	
 
Ÿ 	 	write-downs of inventory carrying value to adjust for excess and obsolete inventory and periodic physical inventory counts; and	
 
Ÿ 	 	certain allocated costs related to manufacturing management, facilities, information technology support and other expenses associated with internal logistics support, including stock-based compensation.	
We outsource our manufacturing, warehouse operations and order fulfillment activities to third parties. Our product costs will vary directly with volume and based on the costs of underlying product components as well as the prices we are able to negotiate with our contract manufacturers. Shipping costs will fluctuate with volume as well as with the method of shipping chosen in order to meet customer demand. As a global company with suppliers centered in Asia and customers located worldwide, we have used, and may in the future use, air shipping to deliver our products directly to retail stores and distribution centers. Air shipping is more costly than sea or ground shipping or other delivery options. We primarily use air shipping to meet the demand of our products during peak shopping seasons and new product launches.
Gross profit and gross profit margin
Our gross profit and gross profit margin have been, and may in the future be, influenced by several factors including: product, channel and geographical revenue mix; changes in product costs related to the release of different camera models; component, contract manufacturing and supplier pricing; and foreign currency exchange. Although we primarily procure and sell our products in U.S. dollars, our suppliers incur many costs, including labor costs, in other currencies. To the extent that exchange rates move unfavorably for our suppliers, they may seek to pass these additional costs on to us, which could have a material impact on our future average selling prices and unit costs. Gross profit and gross profit margin may fluctuate over time based on the factors described above.
 
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Operating expenses
We classify our operating expenses into three categories: research and development, sales and marketing and general and administrative.
 
Ÿ 	 	Research and development.     Research and development expense consists primarily of personnel related costs, which include salaries and stock-based compensation, in addition to costs attributable to product design, test, patent, facilities and information technology. Over time, we expect our research and development expense to increase in absolute dollars as we continue to make significant investments in developing new products, applications, functionality and other offerings. Research and development expense may fluctuate as a percentage of revenue, notably in the fourth quarter of our fiscal year when we have historically experienced our highest levels of revenue.	
 
Ÿ 	 	Sales and marketing.     Sales and marketing expense consists primarily of advertising and marketing promotions of our products, including POP display amortization, personnel related costs, which include salaries and stock-based compensation, commissions, trade show and event costs, sponsorship costs, professional services, facilities, information technology and travel. Over time, we expect our sales and marketing expense to increase in absolute dollars as we continue to actively promote our products . Sales and marketing expense may fluctuate as a percentage of revenue, notably in the fourth quarter of our fiscal year when we have historically experienced our highest levels of revenue.	
 
Ÿ 	 	General and administrative.     General and administrative expense consists of personnel related costs, which include salaries and stock-based compensation, as well as the costs of professional services, facilities, information technology and other administrative expenses. We expect our general and administrative expense to increase in absolute dollars following the completion of this offering due to the anticipated growth of our business and related infrastructure as well as accounting, insurance, investor relations and other costs associated with becoming a public company. General and administrative expense may fluctuate as a percentage of revenue, notably in the fourth quarter of our fiscal year when we have historically experienced our highest levels of revenue.	
Other income (expense), net
Other income (expense), net consists of interest expense associated with our debt financing arrangements and sales of accounts receivable, amortization of debt issuance costs, interest income earned on our cash balances, foreign currency exchange gains (losses) related to the remeasurement of certain assets and liabilities of our foreign subsidiaries that are denominated in currencies other than the functional currency of the subsidiary and foreign exchange transactions gains and losses. We do not utilize derivatives to hedge our foreign exchange risk as we believe the risk to be immaterial to our results of operations.
Income tax expense
We are subject to income taxes in the United States and foreign jurisdictions in which we do business. These foreign jurisdictions have statutory tax rates different from those in the United States. Additionally, certain of our international earnings are also taxable in the United States. Accordingly, our effective tax rates will vary depending on the relative proportion of foreign to U.S. income, the absorption of foreign tax credits, changes in the valuation of our deferred tax assets and liabilities and changes in tax laws. We regularly assess the likelihood of
 
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adverse outcomes resulting from the examination of our tax returns by the U.S. Internal Revenue Service, or IRS, and other tax authorities to determine the adequacy of our income tax reserves and expense. Should actual events or results differ from our current expectations, charges or credits to our income tax expense may become necessary. Any such adjustments could have a significant impact on our results of operations.
Statements of operations
The following table sets forth the components of our consolidated statements of operations for each of the periods presented:

    	  	Year ended December 31,	 	 	Three months ended
March 31,	 	
(in thousands)	  	2011	 	  	2012	 	 	2013	 	 	2013	 	 	2014	 	
 	 	 	 	 	 	 	 	 	 	
Revenue	  	$	234,238	  	  	$	526,016	  	 	$	985,737	  	 	$	255,057	  	 	$	235,716	  	
Cost of revenue(1)	  	 	111,683	  	  	 	298,530	  	 	 	623,953	  	 	 	165,628	  	 	 	139,202	  	
	  	 	 	 	 	 	 	 	 	 	 	 	
Gross profit	  	 	122,555	  	  	 	227,486	  	 	 	361,784	  	 	 	89,429	  	 	 	96,514	  	

Operating expenses:	  				  				 				 				 				
Research and development(1)	  	 	8,644	  	  	 	36,115	  	 	 	73,737	  	 	 	12,012	  	 	 	28,739	  	
Sales and marketing(1)	  	 	64,375	  	  	 	116,855	  	 	 	157,771	  	 	 	35,673	  	 	 	41,341	  	
General and administrative(1)	  	 	10,757	  	  	 	20,899	  	 	 	31,573	  	 	 	6,988	  	 	 	9,878	  	
	  	 	 	 	 	 	 	 	 	 	 	 	
Total operating expenses	  	 	83,776	  	  	 	173,869	  	 	 	263,081	  	 	 	54,673	  	 	 	79,958	  	
	  	 	 	 	 	 	 	 	 	 	 	 	
Operating income	  	 	38,779	  	  	 	53,617	  	 	 	98,703	  	 	 	34,756	  	 	 	16,556	  	
Other income (expense), net	  	 	12	  	  	 	(407	) 	 	 	(7,374	) 	 	 	(1,694	) 	 	 	(1,625	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Income before income taxes	  	 	38,791	  	  	 	53,210	  	 	 	91,329	  	 	 	33,062	  	 	 	14,931	  	
Income tax expense	  	 	14,179	  	  	 	20,948	  	 	 	30,751	  	 	 	10,027	  	 	 	3,882	  	
	  	 	 	 	 	 	 	 	 	 	 	 	
Net income	  	$	24,612	  	  	$	32,262	  	 	$	60,578	  	 	$	23,035	  	 	$	11,049	  	

(1) Includes stock-based compensation expense as follows:	  	 				 				
Cost of revenue	  	$	122	  	  	$	333	  	 	$	690	  	 	$	220	  	 	$	168	  	
Research and development	  	 	261	  	  	 	1,452	  	 	 	3,003	  	 	 	441	  	 	 	1,401	  	
Sales and marketing	  	 	7,690	  	  	 	6,335	  	 	 	5,670	  	 	 	1,204	  	 	 	1,414	  	
General and administrative	  	 	902	  	  	 	1,036	  	 	 	1,524	  	 	 	230	  	 	 	1,054	  	
	  	 	 	 	 	 	 	 	 	 	 	 	
Total stock-based compensation expense	  	$	
8,975	  	  	$	
9,156	  	 	$	10,887	  	 	$	2,095	  	 	$	4,037	  	

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The following table sets forth the components of our consolidated statements of operations for each of the periods presented as a percentage of revenue:

   	  	Year ended December 31,	 	  	Three months ended
March 31,	 	
 	  	    2011	 	  	    2012	 	  	    2013	 	  	    2013	 	  	    2014	 	
 	 	
Revenue	  	 	100%	  	  	 	100%	  	  	 	100%	  	  	 	100%	  	  	 	100%	  	
Cost of revenue	  	 	48%	  	  	 	57%	  	  	 	63%	  	  	 	65%	  	  	 	59%	  	
	  	 	 	 	
Gross profit	  	 	52%	  	  	 	43%	  	  	 	37%	  	  	 	35%	  	  	 	41%	  	

Operating expenses:	  				  				  				  				  				
Research and development	  	 	4%	  	  	 	7%	  	  	 	7%	  	  	 	5%	  	  	 	12%	  	
Sales and marketing	  	 	27%	  	  	 	22%	  	  	 	16%	  	  	 	13%	  	  	 	18%	  	
General and administrative	  	 	4%	  	  	 	4%	  	  	 	4%	  	  	 	3%	  	  	 	4%	  	
	  	 	 	 	
Total operating expenses	  	 	35%	  	  	 	33%	  	  	 	27%	  	  	 	21%	  	  	 	34%	  	
	  	 	 	 	
Operating income	  	 	17%	  	  	 	10%	  	  	 	10%	  	  	 	14%	  	  	 	7%	  	
Other income (expense), net	  	 	—	  	  	 	—	  	  	 	(1)%	  	  	 	(1)%	  	  	 	(1)%	  	
	  	 	 	 	
Income before income taxes	  	 	17%	  	  	 	10%	  	  	 	9%	  	  	 	13%	  	  	 	6%	  	
Income tax expense	  	 	6%	  	  	 	4%	  	  	 	3%	  	  	 	4%	  	  	 	1%	  	
	  	 	 	 	
Net income	  	 	11%	  	  	 	6%	  	  	 	6%	  	  	 	9%	  	  	 	5%	  	
 	 	
Comparison of the three months ended March 31, 2013 and 2014
Revenue

   	  	Three months ended
March 31,	 	  	Change	 	
(dollars in thousands)	  	2013	 	  	2014	 	  	$	 	 	%	 	
 	 	
Revenue	  	$	255,057	  	  	$	235,716	  	  	$	(19,341	) 	 	 	(8)%	  	
 	 	
Revenue for the three months ended March 31, 2014 decreased 8% to $235.7 million from $255.1 million for the three months ended March 31, 2013. Units shipped in the three months ended March 31, 2014 decreased 11% to 0.9 million from 1.0 million in 2013. Revenue and units shipped for the three months ended March 31, 2013 were impacted by production delays of our HERO3 Black edition capture device in the fourth quarter of 2012. These production delays correspondingly delayed shipments until the first quarter of 2013, which resulted in revenues in the first quarter of 2013 that did not reflect the traditional seasonality in our business. The three months ended March 31, 2014 were not similarly affected. Partially offsetting the decrease in revenue due to the decrease in units shipped in the three months ended March 31, 2014 was a 3% increase in the average selling price of units shipped. Our revenue decreased in each of our primary geographical regions of the Americas, Asia Pacific and EMEA (Europe, the Middle East and Africa) in the three months ended March 31, 2014 compared to the three months ended March 31, 2013.
Cost of revenue, gross profit and gross profit margin

   	  	Three months ended
March,	 	  	Change	 	
(dollars in thousands)	  	2013	 	  	2014	 	  	$	 	 	%	 	
 	 	
Cost of revenue	  	$	165,628	  	  	$	139,202	  	  	$	(26,426	) 	 	 	(16)%	  	
Gross profit	  	$	89,429	  	  	$	96,514	  	  	$	7,085	  	 	 	8%	  	
Gross profit margin	  	 	35%	  	  	 	41%	  	  				

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Gross profit margin increased to 41% in the three months ended March 31, 2014 from 35% in the three months ended March 31, 2013 primarily due to lower product costs for our HERO3+ capture devices introduced in the fourth quarter of 2013 compared to our previous generation HERO3 capture devices, coupled with a 3% increase in average selling prices of units shipped. HERO3+ product costs were approximately 10% less than those of the HERO3 in the three months ended March 31, 2013. This was partially offset by an increase in other costs of revenue, which contributed to a 1% reduction in margin primarily due to higher freight, duty and rework costs. We expect gross profit margin to fluctuate over time based on product mix, changes in product costs related to the release of different capture device models and changes in average selling price.
Operating expenses

   	  	Three months ended
March 31,	 	  	Change	 	
(dollars in thousands)	  	        2013	 	  	2014	 	  	$	 	  	%	 	
 	 	
Research and development	  	$	12,012	  	  	$	28,739	  	  	$	16,727	  	  	 	139%	  	
Sales and marketing	  	 	35,673	  	  	 	41,341	  	  	 	5,668	  	  	 	16%	  	
General and administrative	  	 	6,988	  	  	 	9,878	  	  	 	2,890	  	  	 	41%	  	
	  	 	 	 	  	 	 	 	  	 	 	 	  				
Total operating expenses	  	$	54,673	  	  	$	79,958	  	  	$	25,285	  	  	 	46%	  	
 	 	
Research and development expense increased $16.7 million, or 139%, for the three months ended March 31, 2014 compared to the three months ended March 31, 2013, due primarily to a $8.3 million increase in personnel related costs associated with an increase in headcount of 139 employees to support our broadened product portfolio, a $5.1 million increase in consulting and outside professional service costs, a $1.5 million increase in facility and information technology support costs to support our overall growth and a $1.1 million increase in equipment costs.
Sales and marketing expense increased $5.7 million, or 16%, for the three months ended March 31, 2014 compared to the three months ended March 31, 2013, due primarily to a $3.8 million increase in personnel related costs associated with an increase in headcount of 99 employees and a $1.6 million increase in advertising and promotional activity costs.
General and administrative expense increased $2.9 million, or 41%, for the three months ended March 31, 2014 compared to the three months ended March 31, 2013, due primarily to a $2.7 million increase in personnel related costs associated with an increase in headcount of 58 employees.
Other income (expense), net

   	  	Three months ended
March 31,	 	 	Change	 	
(dollars in thousands)	  	        2013	 	 	2014	 	 	$	 	 	%	 	
 	 	
Interest expense	  	$	(1,333	) 	 	$	(1,348	) 	 	$	(15	) 	 	 	1%	  	
Interest income	  	 	1	  	 	 	12	  	 	 	11	  	 	 	1,100%	  	
Other expense	  	 	(276	) 	 	 	(262	) 	 	 	14	  	 	 	(5)%	  	
Realized foreign exchange loss, net	  	 	(86	) 	 	 	(27	) 	 	 	59	  	 	 	(69)%	  	
	  	 	 	 	 	 	 	 	 	 	 	 	 				
Total other income (expense), net	  	$	(1,694	) 	 	$	(1,625	) 	 	$	69	  	 	 	(4)%	  	
 	 	
Interest expense for the three months ended March 31, 2014 remained relatively flat compared to the three months ended March 31, 2013.
 
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Income tax expense

   	  	Three months ended
March 31,	 	  	Change	 	
(dollars in thousands)	  	        2013	 	  	2014	 	  	$	 	 	%	 	
 	 	
Income tax expense	  	$	10,027	  	  	$	3,882	  	  	$	(6,145	) 	 	 	(61)%	  	
Effective tax rate	  	 	30.3%	  	  	 	26.0%	  	  				 				
 	 	
Income tax expense for the three months ended March 31, 2014 was $3.9 million compared to $10.0 million for the three months ended March 31, 2013. Our effective tax rate for the three months ended March 31, 2014 was lower than for the three months ended March 31, 2013 and the federal statutory rate of 35%, primarily due to the expansion of our operations into international jurisdictions that have lower overall statutory tax rates.
Comparison of the years ended December 31, 2011, 2012 and 2013
Revenue

   	  	Year ended December 31,	 	  	Change 2012
vs. 2011	 	  	Change 2013
vs. 2012	 	
(dollars in thousands)	  	2011	 	  	2012	 	  	2013	 	  	$	 	  	%	 	  	$	 	  	%	 	
 	 	
Revenue	  	$	234,238	  	  	$	526,016	  	  	$	985,737	  	  	$	291,778	  	  	 	125%	  	  	$	459,721	  	  	 	87%	  	
 	 	
2013 compared to 2012
Revenue for 2013 increased 87% to $985.7 million from $526.0 million for 2012. Units shipped in 2013 increased 66% to 3.8 million from 2.3 million in 2012, primarily due to an increase in demand for our HERO3 products released in the fourth quarter of 2012 and our HERO3+ products released in the fourth quarter of 2013. Further contributing to the increase in revenue in 2013 was a 19% increase in the average selling price of units shipped. The increase in average selling price from 2012 to 2013 was primarily driven by a shift in product mix to the HERO3 and HERO3+ Black edition capture devices, which have higher price points compared to our HERO2 capture devices. Our 2013 revenue also increased compared to 2012 as a result of an increase in accessories we shipped outside of units shipped. Our revenue grew in each of our primary geographical regions of the Americas, Asia Pacific and EMEA in 2013.
2012 compared to 2011
Revenue for 2012 increased 125% to $526.0 million from $234.2 million for 2011. Units shipped in 2012 increased 102% to 2.3 million units from 1.1 million in 2011 primarily due to an increase in demand for our HERO2 capture devices released in the fourth quarter of 2011 and our HERO3 capture devices released in the fourth quarter of 2012. Revenue for 2012 also increased compared to 2011 due to an increase in accessories we shipped outside of units shipped. Further contributing to the increase in revenue in 2012 was a 14% increase in our average selling price of units shipped for 2012 compared to 2011 due to higher average selling price for our HERO3 Black edition capture devices. Our revenue grew in each of our primary geographic regions in 2012.
 
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Cost of revenue, gross profit and gross profit margin

   	  	Year ended December 31,	 	  	Change 2012
vs. 2011	 	  	Change 2013
vs. 2012	 	
(dollars in thousands)	  	2011	 	  	2012	 	  	2013	 	  	        $	 	  	        %	 	  	        $	 	  	        %	 	
 	 	
Cost of revenue	  	$	111,683	  	  	$	298,530	  	  	$	623,953	  	  	$	186,847	  	  	 	167%	  	  	$	325,423	  	  	 	109%	  	
Gross profit	  	$	122,555	  	  	$	227,486	  	  	$	361,784	  	  	$	104,931	  	  	 	86%	  	  	$	134,298	  	  	 	59%	  	
Gross profit margin	  	 	52%	  	  	 	43%	  	  	 	37%	  	  				  				
 	 	
2013 compared to 2012
Gross profit margin decreased to 37% in 2013 from 43% in 2012 due primarily to higher product costs for our HERO3 capture devices introduced in the fourth quarter of 2012 compared to our previous generation HERO2 capture devices. HERO3 product costs were approximately 67% greater than those of the HERO2, while average selling prices of units shipped increased approximately 19%. This increase in product costs was due primarily to the inclusion of additional features and functionality in our HERO3 capture devices. Our HERO3+ capture devices, introduced in October 2013, included lower product costs and partially offset the HERO3 cost increase in the fourth quarter of 2013 as customers transitioned to our new product line. The average cost for the HERO3+ capture device decreased approximately 3% compared to the HERO3 capture device.
2012 compared to 2011
Gross profit margin decreased to 43% in 2012 from 52% in 2011, primarily due to higher product costs associated with additional features and functionality included in our HERO3 capture devices introduced in the fourth quarter of 2012. The average product costs of our HERO3 capture device, introduced in the fourth quarter of 2012, represented more than a 60% increase in the average cost of the HERO and HERO2 capture devices sold in 2011. This increase in product costs was partially offset by the 14% increase in the average selling price of units shipped for 2012 compared to 2011.
Operating expenses

   	  	Year ended December 31,	 	  	Change 2012
vs. 2011	 	  	Change 2013
vs. 2012	 	
(dollars in thousands)	  	2011	 	  	2012	 	  	2013	 	  	$	 	  	%	 	  	$	 	  	%	 	
 	 	
Research and development	  	$	8,644	  	  	$	36,115	  	  	$	73,737	  	  	$	27,471	  	  	 	318%	  	  	$	37,622	  	  	 	104%	  	
Sales and marketing	  	 	64,375	  	  	 	116,855	  	  	 	157,771	  	  	 	52,480	  	  	 	82%	  	  	 	40,916	  	  	 	35%	  	
General and administrative	  	 	10,757	  	  	 	20,899	  	  	 	31,573	  	  	 	10,142	  	  	 	94%	  	  	 	10,674	  	  	 	51%	  	
	  	 	 	 	  				  	 	 	 	  				
Total operating expenses	  	$	83,776	  	  	$	173,869	  	  	$	263,081	  	  	$	90,093	  	  	 	108%	  	  	$	89,212	  	  	 	51%	  	
 	 	
2013 compared to 2012
Research and development expense increased $37.6 million, or 104%, for 2013 compared to 2012, due primarily to a $20.3 million increase in personnel related costs associated with an increase in headcount of 127 employees, a $9.7 million increase in facility and information technology support costs associated with an expansion of our corporate offices and a $6.1 million increase in consulting and outside professional service costs.
 
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Sales and marketing expense increased $40.9 million, or 35%, for 2013 compared to 2012, due primarily to a $21.3 million increase in advertising and promotional activities, a $6.8 million increase in personnel related costs associated with an increase in headcount of 95 employees, a $5.0 million increase in facility and information technology support costs associated with an expansion of our corporate offices, a $3.9 million increase in consulting and outside professional services costs and a $1.0 million increase in sales commissions.
General and administrative expense increased $10.7 million, or 51%, for 2013 compared to 2012, due primarily to a $5.2 million increase in personnel related costs associated with an increase in headcount of 62 employees, a $2.6 million increase in professional, consulting and temporary services to support our overall growth and a $2.3 million increase in facility and information technology support costs associated with an expansion of our corporate offices.
2012 compared to 2011
Research and development expense increased $27.5 million, or 318%, for 2012 compared to 2011, primarily due to a $11.7 million increase in personnel related costs associated with an increase in headcount of 87 employees, an $8.2 million increase in consulting and outside professional services, a $5.4 million increase in facility and information technology support costs associated with an expansion of our corporate offices and a $1.8 million increase in prototype material costs.
Sales and marketing expense increased $52.5 million, or 82%, for 2012 compared to 2011, primarily due to a $33.4 million increase in advertising and promotional activities to increase brand awareness, a $13.6 million increase in personnel related costs associated with an increase in headcount of 61 employees and a $6.9 million increase in consulting and outside professional service costs, largely in connection with marketing and customer support activities. We also increased our facility and information technology support costs associated with an expansion of our corporate offices by $6.5 million. Selling expense, which principally consists of internal and external sales commissions, increased $4.1 million from 2011. Partially offsetting these increases in 2012 was a $13.0 million charge included in sales and marketing expense for 2011 related to an agreement between our Chief Executive Officer and an employee, to share proceeds from a sale of equity securities. See “Certain relationships and related person transactions—Share of proceeds from sale of equity securities” for further description of this transaction.
General and administrative expense increased $10.1 million, or 94%, for 2012 compared to 2011, due primarily to a $3.1 million increase in personnel related costs associated with an increase in headcount of 29 employees, a $3.1 million increase in facility and information technology support costs associated with an expansion of our corporate offices and a $3.0 million increase in consulting and outside professional service costs to support our growth.
Other income (expense), net

   	  	Year ended
December 31,	 	 	Change 2012 vs.
2011	 	  	Change 2013 vs.
2012	 	
(dollars in thousands)	  	2011	 	 	2012	 	 	2013	 	 	$	 	 	%	 	  	$	 	 	%	 	
 	 	
Interest expense	  	$	(32	) 	 	$	(392	) 	 	$	(6,020	) 	 	$	(360	) 	 	 	1,125%	  	  	$	(5,628	) 	 	 	1,436%	  	
Interest income	  	 	44	  	 	 	46	  	 	 	2	  	 	 	2	  	 	 	5%	  	  	 	(44	) 	 	 	(96)%	  	
Realized foreign exchange loss, net	  	 	—	  	 	 	(61	) 	 	 	(322	) 	 	 	(61	) 	 	 	100%	  	  	 	(261	) 	 	 	428%	  	
Other income (expense), net	  	 	—	  	 	 	—	  	 	 	(1,034	) 	 	 	—	  	 	 	—	  	  	 	(1,034	) 	 	 	100%	  	
	  	 	 	 	 				  	 	 	 	 				
Total other income (expense), net	  	$	12	  	 	$	(407	) 	 	$	(7,374	) 	 	$	(419	) 	 	 	(3,492)%	  	  	$	(6,967	) 	 	 	1,712%	  	

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2013 compared to 2012
Interest expense for 2013 was $6.0 million compared to $0.4 million for 2012, primarily due to increased debt balances under our credit facility. Other expense in 2013 consisted primarily of banking and commission fees related to our standby letter of credit. See “Liquidity and capital resources—Credit facility.”
2012 compared to 2011
Other income (expense), net, was ($0.4 million) for 2012 compared to $12,000 in 2011. The increase in net expense was primarily due to interest expense associated with our credit facility entered into in December 2012.
Income tax expense

   	  	Year ended December 31,	 	 	Change 2012
vs.  2011	 	  	Change 2013
vs. 2012	 	
(dollars in thousands)	  	2011	 	 	2012	 	 	2013	 	 	$	 	  	%	 	  	$	 	  	%	 	
 	 	 	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Income tax expense	  	$	14,179	  	 	$	20,948	  	 	$	30,751	  	 	$	  6,769	  	  	 	     48%	  	  	 	$ 9,803	  	  	 	47%	  	
Effective tax rate	  	 	36.6	% 	 	 	39.4	% 	 	 	33.7	% 	 				  				  				  				
 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
2013 compared to 2012
Income tax expense for 2013 was $30.8 million compared to $20.9 million for 2012. Our effective income tax rate was 33.7% for 2013 compared to 39.4% for 2012. Our effective tax rate for 2013 was lower than for 2012 and the federal statutory rate of 35% primarily due to the expansion of our operations into international jurisdictions that have lower overall statutory tax rates and the extension of our 2012 federal research credit in 2013 of $0.7 million.
2012 compared to 2011
Our income tax expense was $20.9 million for 2012 compared to $14.2 million for 2011. Our effective income tax rate was 39.4% for 2012 compared to 36.6% for 2011. Our effective tax rate increased in 2012 compared to 2011 primarily due to tax benefits related to our S corporation status during the first two months of 2011.
Backlog
We do not believe that our backlog is meaningful as of any particular date or indicative of future sales, as our customers can change or cancel orders with limited or no penalty and limited advance notice prior to shipment.
 
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Unaudited quarterly results of operations
The following table sets forth our unaudited quarterly consolidated results of operations for each of the nine quarterly periods ended March 31, 2014. These unaudited quarterly results of operations have been prepared on the same basis as our audited consolidated financial statements and, in our opinion, reflect all normal recurring adjustments necessary for the fair statement of the results of operations for these periods. You should read the following tables in conjunction with our consolidated financial statements and the related notes included elsewhere in this prospectus. The results of operations for any quarter are not necessarily indicative of the results of operations for a full year or any future periods.

    	 	Three months ended	 	
(in thousands)	 	March 31,
2012	 	 	June 30,
2012	 	 	Sept. 30,
2012(2)	 	 	Dec. 31,
2012(3)	 	 	March 31,
2013	 	 	June 30,
2013	 	 	Sept. 30,
2013	 	 	Dec. 31,
2013(4)	 	 	March 31,
2014	 	

Consolidated statement of operations data:	 				 				 				 				 				 				 				 				
Revenue	 	$	87,642	  	 	$	122,290	  	 	$	82,055	  	 	$	234,029	  	 	$	255,057	  	 	$	177,082	  	 	$	192,146	  	 	$	361,452	  	 	$	235,716	  	
Cost of revenue(1)	 	 	43,463	  	 	 	58,847	  	 	 	46,580	  	 	 	149,640	  	 	 	165,628	  	 	 	120,242	  	 	 	128,135	  	 	 	209,948	  	 	 	139,202	  	
	 	 	 	 	 	 	 	 	
Gross profit	 	 	44,179	  	 	 	63,443	  	 	 	35,475	  	 	 	84,389	  	 	 	89,429	  	 	 	56,840	  	 	 	64,011	  	 	 	151,504	  	 	 	96,514	  	

Operating expenses:	 				 				 				 				 				 				
Research and development(1)	 	 	5,567	  	 	 	7,329	  	 	 	10,929	  	 	 	12,290	  	 	 	12,012	  	 	 	16,687	  	 	 	19,587	  	 	 	25,451	  	 	 	28,739	  	
Sales and marketing(1)	 	 	21,436	  	 	 	23,947	  	 	 	26,764	  	 	 	44,708	  	 	 	35,673	  	 	 	39,065	  	 	 	37,413	  	 	 	45,620	  	 	 	41,341	  	
General and administrative(1)	 	 	3,812	  	 	 	5,156	  	 	 	5,009	  	 	 	6,922	  	 	 	6,988	  	 	 	7,044	  	 	 	7,683	  	 	 	9,858	  	 	 	9,878	  	
	 	 	 	 	 	 	 	 	
Total operating expenses	 	 	30,815	  	 	 	36,432	  	 	 	42,702	  	 	 	63,920	  	 	 	54,673	  	 	 	62,796	  	 	 	64,683	  	 	 	80,929	  	 	 	79,958	  	
	 	 	 	 	 	 	 	 	
Operating income (loss)	 	 	13,364	  	 	 	27,011	  	 	 	(7,227	) 	 	 	20,469	  	 	 	34,756	  	 	 	(5,956	) 	 	 	(672	) 	 	 	70,575	  	 	 	16,556	  	
Other income (expense), net	 	 	(32	) 	 	 	(83	) 	 	 	(68	) 	 	 	(224	) 	 	 	(1,694	) 	 	 	(1,697	) 	 	 	(1,759	) 	 	 	(2,224	) 	 	 	(1,625	) 	
	 	 	 	 	 	 	 	 	
Income (loss) before income taxes	 	 	13,332	  	 	 	26,928	  	 	 	(7,295	) 	 	 	20,245	  	 	 	33,062	  	 	 	(7,653	) 	 	 	(2,431	) 	 	 	68,351	  	 	 	14,931	  	
Income tax (benefit) expense	 	 	5,293	  	 	 	11,697	  	 	 	(4,586	) 	 	 	8,544	  	 	 	10,027	  	 	 	(2,568	) 	 	 	(1,330	) 	 	 	24,622	  	 	 	3,882	  	
	 	 	 	 	 	 	 	 	
Net income (loss)	 	$	8,039	  	 	$	15,231	  	 	$	(2,709	) 	 	$	11,701	  	 	$	23,035	  	 	$	(5,085	) 	 	$	(1,101	) 	 	$	43,729	  	 	$	11,049	  	

 
(1)    Includes stock-based compensation expense as follows:

Cost of revenue	 	$	67	  	 	$	73	  	 	$	83	  	 	$	110	  	 	$	220	  	 	$	157	  	 	$	153	  	 	$	160	  	 	$	168	  	
Research and development	 	 	213	  	 	 	212	  	 	 	338	  	 	 	689	  	 	 	441	  	 	 	556	  	 	 	740	  	 	 	1,266	  	 	 	1,401	  	
Sales and marketing	 	 	745	  	 	 	920	  	 	 	1,880	  	 	 	2,790	  	 	 	1,204	  	 	 	1,454	  	 	 	1,419	  	 	 	1,593	  	 	 	1,414	  	
General and administrative	 	 	81	  	 	 	93	  	 	 	115	  	 	 	747	  	 	 	230	  	 	 	365	  	 	 	408	  	 	 	521	  	 	 	1,054	  	

Total stock-based compensation expense	 	$	1,106	  	 	$	1,298	  	 	$	2,416	  	 	$	4,336	  	 	$	2,095	  	 	$	2,532	  	 	$	2,720	  	 	$	3,540	  	 	$	4,037	  	

(2)	 	Includes a charge of $1.0 million related to the modification of stock options, which was recorded to sales and marketing expense.	
(3)	 	Includes compensation costs of $2.6 million recognized upon a sale of shares from several employees to the Chief Executive Officer, of which $0.3 million was recorded to research and development, $1.7 million was recorded to sales and marketing and $0.6 million was recorded to general and administrative expense.	
(4)	 	Includes a cash charge of $0.3 million related to certain provisions and benefits in the separation agreement of our former Chief Financial Officer, who resigned in December 2013 due to health reasons which was recorded to general and administrative expense.	
 
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The following table sets forth the components of our unaudited consolidated statements of operations for each of the periods presented as a percentage of revenue:

   	 	Three months ended	 	
(percentage of revenue)	 	March 31,
2012	 	 	June 30,
2012	 	 	Sept. 30,
2012	 	 	Dec. 31,
2012	 	 	March 31,
2013	 	 	June 30,
2013	 	 	Sept. 30,
2013	 	 	Dec. 31,
2013	 	 	March 31,
2014	 	

Revenue	 	 	100%	  	 	 	100%	  	 	 	100%	  	 	 	100%	  	 	 	100%	  	 	 	100%	  	 	 	100%	  	 	 	100%	  	 	 	100%	  	
Cost of revenue	 	 	50%	  	 	 	48%	  	 	 	57%	  	 	 	64%	  	 	 	65%	  	 	 	68%	  	 	 	67%	  	 	 	58%	  	 	 	59%	  	
	 	 	 	 	 	 	 	 	
Gross profit	 	 	50%	  	 	 	52%	  	 	 	43%	  	 	 	36%	  	 	 	35%	  	 	 	32%	  	 	 	33%	  	 	 	42%	  	 	 	41%	  	

Operating expenses:	 				 				 				 				 				 				 				 				 				
Research and development	 	 	6%	  	 	 	6%	  	 	 	13%	  	 	 	5%	  	 	 	5%	  	 	 	9%	  	 	 	10%	  	 	 	7%	  	 	 	12%	  	
Sales and marketing	 	 	24%	  	 	 	20%	  	 	 	33%	  	 	 	19%	  	 	 	13%	  	 	 	22%	  	 	 	19%	  	 	 	12%	  	 	 	18%	  	
General and administrative	 	 	5%	  	 	 	4%	  	 	 	6%	  	 	 	3%	  	 	 	3%	  	 	 	4%	  	 	 	4%	  	 	 	3%	  	 	 	4%	  	
	 	 	 	 	 	 	 	 	
Total operating expenses	 	 	35%	  	 	 	30%	  	 	 	52%	  	 	 	27%	  	 	 	21%	  	 	 	35%	  	 	 	33%	  	 	 	22%	  	 	 	34%	  	
	 	 	 	 	 	 	 	 	
Operating income (loss)	 	 	15%	  	 	 	22%	  	 	 	(9)%	  	 	 	9%	  	 	 	14%	  	 	 	(3)%	  	 	 	—%	  	 	 	20%	  	 	 	7%	  	
Other income (expense), net	 	 	—%	  	 	 	—%	  	 	 	—%	  	 	 	—%	  	 	 	(1)%	  	 	 	(1)%	  	 	 	(1)%	  	 	 	(1)%	  	 	 	(1)%	  	
	 	 	 	 	 	 	 	 	
Income (loss) before income taxes	 	 	15%	  	 	 	22%	  	 	 	(9)%	  	 	 	9%	  	 	 	13%	  	 	 	(4)%	  	 	 	(1)%	  	 	 	19%	  	 	 	6%	  	
Income tax (benefit) expense	 	 	6%	  	 	 	10%	  	 	 	(6)%	  	 	 	4%	  	 	 	4%	  	 	 	(1)%	  	 	 	—%	  	 	 	7%	  	 	 	1%	  	
	 	 	 	 	 	 	 	 	
Net income (loss)	 	 	9%	  	 	 	12%	  	 	 	(3)%	  	 	 	5%	  	 	 	9%	  	 	 	(3)%	  	 	 	(1)%	  	 	 	12%	  	 	 	5%	  	
 	 	 	 	 	 	
Quarterly trends
Our overall operating results fluctuate from quarter to quarter as a result of a variety of factors, including seasonal factors and economic cycles that influence consumer retail product purchase trends.
Generally, we have experienced the highest levels of revenue in the fourth quarter of the year, which coincides with the winter holiday shopping season in the United States and Europe and the period in which we have historically introduced the newest generation of our product offerings. Revenue in the first quarter of 2013 was greater than the fourth quarter of 2012 due to the delay in the introduction of our HERO3 Black edition capture device in the fourth quarter of 2012.
Gross profit margin decreased from the third quarter of 2012 through the second quarter of 2013 primarily due to higher product costs of our HERO3 capture devices compared to our HERO2 capture devices. Gross profit margin was higher in the fourth quarter of 2013 and the first quarter of 2014 primarily due to a decrease in the product costs of our HERO3+ capture devices compared to our HERO3 capture devices and, to a lesser extent, an increase in the average selling price of units shipped compared to prior periods.
Operating expense increased for the quarterly periods presented due primarily to increased personnel related expenses, advertising and promotional expenses and corporate infrastructure costs to support the growth of the company. For the three months ended December 31, 2012, sales and marketing expense reflected advertising and promotional activities to increase awareness of the GoPro brand and our product offerings associated with the launch of our HERO3 capture devices. For the three months ended March 31, 2014, research and development expense increased due primarily to an increase in personnel related costs associated with an increase in headcount and to an increase in consulting and outside professional service costs.
Our business is both positively and negatively affected by the behavior of consumers, economic conditions, competitive pressures and our operational decisions and related timelines, which
 
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includes the release of new products and accessories, as well as newer generations of our product offerings. Consequently, the results of any prior quarterly or annual periods should not be relied upon as indications of our future operating performance.
The following table sets forth the key business metrics for each of the periods presented:

   	 	Three months ended	 	
(in thousands)	 	March 31,
2012	 	 	June 30,
2012	 	 	Sept. 30,
2012	 	 	Dec. 31,
2012	 	 	March 31,
2013	 	 	June 30,
2013	 	 	Sept. 30,
2013	 	 	Dec. 31,
2013	 	 	March 31,
2014	 	
 	 	 	 	 	 	
Adjusted EBITDA(1)	 	$	17,353	  	 	$	32,469	  	 	$	(2,544	) 	 	$	28,010	  	 	$	40,923	  	 	$	2,341	  	 	$	8,606	  	 	$	81,856	  	 	$	28,627	  	
Units shipped	 	 	425	  	 	 	549	  	 	 	335	  	 	 	1,007	  	 	 	954	  	 	 	653	  	 	 	822	  	 	 	1,420	  	 	 	852	  	

(1)	 	The following is a reconciliation of adjusted EBITDA.	

   	 	Three months ended	 	
(in thousands)	 	March 31,
2012	 	 	June 30,
2012	 	 	Sept. 30,
2012	 	 	Dec. 31,
2012	 	 	March 31,
2013	 	 	June 30,
2013	 	 	Sept. 30,
2013	 	 	Dec. 31,
2013	 	 	March 31,
2014	 	
 	 	 	 	 	 	
Net income (loss)	 	$	8,039	  	 	$	15,231	  	 	$	(2,709	) 	 	$	11,701	  	 	$	23,035	  	 	$	(5,085	) 	 	$	(1,101	) 	 	$	43,729	  	 	$	11,049	  	
Income tax (benefit) expense	 	 	5,293	  	 	 	11,697	  	 	 	(4,586	) 	 	 	8,544	  	 	 	10,027	  	 	 	(2,568	) 	 	 	(1,330	) 	 	 	24,622	  	 	 	3,882	  	
Interest income and expense	 	 	32	  	 	 	67	  	 	 	43	  	 	 	204	  	 	 	1,332	  	 	 	1,369	  	 	 	1,428	  	 	 	1,889	  	 	 	1,335	  	
Depreciation and amortization	 	 	545	  	 	 	699	  	 	 	1,136	  	 	 	1,595	  	 	 	2,209	  	 	 	3,207	  	 	 	3,092	  	 	 	3,526	  	 	 	3,811	  	
POP display amortization	 	 	2,338	  	 	 	3,477	  	 	 	1,156	  	 	 	1,630	  	 	 	2,225	  	 	 	2,886	  	 	 	3,797	  	 	 	4,550	  	 	 	4,513	  	
Stock-based compensation	 	 	1,106	  	 	 	1,298	  	 	 	2,416	  	 	 	4,336	  	 	 	2,095	  	 	 	2,532	  	 	 	2,720	  	 	 	3,540	  	 	 	4,037	  	
	 	 	 	 	 	 	 	 	
Adjusted EBITDA	 	$	17,353	  	 	$	32,469	  	 	$	(2,544	) 	 	$	28,010	  	 	$	40,923	  	 	$	2,341	  	 	$	8,606	  	 	$	81,856	  	 	$	28,627	  	
 	 	 	 	 	 	
Liquidity and capital resources

   	  	December 31,	 	  	March 31,	 	
(in thousands)	  	2012	 	  	2013	 	  	2014	 	
 	 	  	 	 	 	
Cash	  	$	36,485	  	  	$	101,410	  	  	$	111,215	  	
 	 	  	 	 	 	
As of March 31, 2014, our principal sources of liquidity were our cash balances totaling $111.2 million and $30.0 million available under our credit facility term loan and revolving credit facility, respectively. Our operations have been financed primarily through cash flow from operating activities, the private sale of equity securities, and short- and long-term borrowings. Since inception, we have raised $20.0 million in equity capital and at March 31, 2014 had $111.0 million of principal amount of indebtedness outstanding.
We believe our existing cash balances, cash flow from operations and liquidity available from our credit facility will be sufficient to meet our working capital and capital expenditure needs for at least the next 12 months and the foreseeable future. Our future capital requirements may vary materially from those currently planned and will depend on many factors, including our rate of revenue growth, the timing and extent of spending on research and development efforts and other business initiatives, the expansion of sales and marketing activities, the timing of new product introductions, market acceptance of our products and overall economic conditions. To the extent that current and anticipated future sources of liquidity are insufficient to fund our future business activities and requirements, we may be required to seek additional equity or debt financing. In the event additional financing is required from outside sources, we may not be able to raise it on terms acceptable to us or at all.
 
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Credit facility
On December 21, 2012, in order to effect a dividend to our stockholders, we entered into a $170.0 million credit facility consisting of a $120.0 million three-year term loan facility, or term loan, and a $50.0 million four-year revolving credit facility, or our revolving credit facility. At the closing of our credit facility, the entire amount of the term loan and $10.0 million of our revolving credit facility were drawn down, and $20.0 million was committed to a standby letter of credit. We received net proceeds of $127.6 million, net of $2.4 million of debt issuance and lender costs. The debt issuance and lender costs allocated to the term loan are being amortized to interest expense over the contractual term of our term loan using the effective interest method. Costs allocated to our revolving credit facility are deferred and amortized using the straight-line method over the four-year contractual term of our revolving credit facility. Borrowings under our credit facility are collateralized by substantially all of our assets and are subject to customary representations, warranties and covenants. Proceeds from this offering will be utilized to fully pay off outstanding balances under our term loan.
Our $120.0 million term loan has scheduled quarterly principal repayments, due on the last day of each quarter, of $1.5 million per quarter in 2013, $3.0 million per quarter in 2014 and $6.0 million per quarter for the first three quarters of 2015, with the remaining balance due on December 21, 2015. Our excess cash flow, as defined in the credit facility, for 2013 triggered a contractual principal prepayment obligation of $48.5 million, which amount has been classified as a current liability as of December 31, 2013 and March 31, 2014. In April 2014, we amended the credit facility agreement to extend the due date for this contractual principal prepayment from April 2014 to December 2014. Our $50.0 million revolving credit facility matures on December 21, 2016, and we can repay and re-borrow principal amounts under and during the term of our revolving credit facility. Of the $50.0 million available under our revolving credit facility, as of December 31, 2013 and March 31, 2014, $20.0 million is committed to a standby letter of credit, and there was no balance outstanding. In April 2014, the $20.0 million standby letter of credit was terminated.
Borrowings under the credit facility bear interest at a rate per annum equal to an applicable margin plus, at our option, either: (i) a base rate determined by reference to the highest of: (a) a rate of interest publicly announced by JPMorgan Chase Bank, N.A. as its prime rate; (b) 0.5% per annum above the federal funds effective rate; and (c) the LIBOR rate for an interest period of one month plus 1.00%; or (ii) a LIBOR rate determined by reference to the costs of funds for Eurodollar deposits for the interest period relevant to such borrowing adjusted for certain reserve requirements. The applicable margin for borrowings ranges from 3.00% to 3.75% with respect to base rate loans and from 2.00% to 2.75% with respect to LIBOR rate loans, in each case, based on our consolidated leverage ratio. As of March 31, 2014, the interest rate on our term loan was 2.75%.
Our short term liquidity could be impacted in part by our ability to maintain compliance with covenants in the credit agreement. The agreement contains an acceleration clause for certain events related to our creditworthiness, including, among other things, our failure to maintain a financial leverage ratio below certain thresholds specified in the agreement and maintain a consolidated interest coverage ratio. As of December 31, 2012 and 2013 and March 31, 2014, we were in compliance with all financial covenants.
 
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The following table sets forth the major components of our consolidated statements of cash flows data for the periods presented:

   	  	Year ended December 31,	 	 	Three months ended
March 31,	 	
(in thousands)	  	2011	 	 	2012	 	 	2013	 	 	2013	 	 	2014	 	
 	 	
Net cash provided by operating activities	  	$	15,229	  	 	$	8,366	  	 	$	102,477	  	 	$	31,125	  	 	$	17,714	  	
Net cash used for investing activities	  	 	(9,909	) 	 	 	(17,795	) 	 	 	(21,237	) 	 	 	(5,844	) 	 	 	(4,701	) 	
Net cash provided by (used for) financing activities	  	 	20,343	  	 	 	16,816	  	 	 	(16,315	) 	 	 	(11,516	) 	 	 	(3,208	) 	
	  	 	 	 	
Net increase in cash	  	$	25,663	  	 	$	7,387	  	 	$	64,925	  	 	$	13,765	  	 	$	9,805	  	
 	 	
Cash flows from operating activities
Cash flows from operating activities consist of net income adjusted for certain non-cash items, including depreciation and amortization, deferred income taxes, stock-based compensation expense and excess tax benefits from stock-based compensation, as well as the effect of changes in working capital and other activities.
Cash provided by operating activities of $17.7 million in the three months ended March 31, 2014 decreased from $31.1 million in the three months ended March 31, 2013, due primarily to a $12.0 million decrease in net income and a $2.7 million decrease in cash related to changes in operating assets and liabilities, partially offset by a $1.3 million increase in non-cash expense items, primarily consisting of depreciation and amortization and stock-based compensation expense. Changes in cash flows related to operating assets and liabilities primarily consisted of a $111.6 million decrease in cash due to the timing of payments associated with our accounts payable and accrued liabilities, partially offset by a $54.0 million increase in cash due to timing of accounts receivable collections and the factoring of certain receivables in the three months ended 2014 and a $48.6 million increase in cash due to utilization of inventory in the three months ended March 31, 2014 compared to an increase in inventory in the three months ended March 31, 2013.
Cash provided by operating activities of $102.5 million in 2013 increased from $8.4 million cash provided by operating activities in 2012, due to a $54.9 million increase in cash related to changes in operating assets and liabilities, a $28.3 million increase in net income and a $10.9 million increase in non-cash expense items, primarily consisting of depreciation and amortization, stock-based compensation expense, excess tax benefits from stock-based compensation and inventory-related write-offs. Changes in cash flows related to operating assets and liabilities primarily consisted of a $67.4 million increase in cash due to the timing of payments associated with our accounts payable and accrued liabilities, as well as a $10.4 million increase in cash due to timing of accounts receivable collections and the factoring of certain receivables in 2013. This was partially offset by a $11.9 million decrease in cash due to increased inventory purchases in preparation of the launch of our HERO3+ capture devices and a $6.8 million decrease in cash due to increased expenditures for other assets.
Cash provided by operating activities of $8.4 million for 2012 decreased from $15.2 million in 2011. The decrease in cash provided by operating activities resulted from a $19.5 million decrease in cash related to changes in operating assets and liabilities partially offset by increases in net income of $7.7 million and non-cash expense items of $5.0 million, primarily consisting of depreciation and amortization, stock-based compensation expense, inventory-related write-offs and deferred taxes. Changes in cash flows related to operating assets and liabilities primarily
 
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consisted of a $33.9 million decrease in cash due to timing of accounts receivable collections and a $31.0 million decrease in cash due to increased inventory purchases to meet the growing demand for our products. These were partially offset by a $42.9 million increase in cash due to the timing of payments associated with our accounts payable and accrued expenses related to inventory purchases and a $2.7 million increase in deferred revenue.
Cash flows from investing activities
Cash used in investing activities of $4.7 million in the three months ended March 31, 2014 decreased from cash used for investing activities of $5.8 million in the three months ended March 31, 2013 due to $1.1 million of reduced expenditures on property and equipment.
Cash used in investing activities of $21.2 million in 2013 increased $4.0 million from cash used for investing activities of $17.8 million in 2012. The increase was primarily due to purchases of property and equipment of $18.3 million and cash used in the acquisition of General Things, Inc. net of cash acquired of $2.9 million.
Cash used in investing activities of $17.8 million in 2012 increased $7.9 million from cash used for investing activities of $9.9 million in 2011. This increase was comprised of increases in purchases of property and equipment of $15.8 million offset by a reduction in acquisition spending of $8.0 million.
Cash flows from financing activities
Our financing activities used cash of $3.2 million in the three months ended March 31, 2014. Cash flow used in financing activities in the three months ended March 31, 2014 consisted primarily of repayments of long-term debt of $3.0 million.
Our financing activities used cash of $16.3 million in 2013. Cash flow used in financing activities in 2013 consisted primarily of repayments of long-term debt and repayments of our revolving credit facility of $46.0 million, partially offset by borrowings under the revolving credit facility of $30.0 million.
Our financing activities provided cash of $16.8 million during 2012. Cash flow provided by financing activities consisted primarily of the issuance of an aggregate of $137.6 million of long-term and revolving credit facility (net of issuance costs), a tax benefit of $4.2 million upon exercise of non-qualified stock options and proceeds from the issuance of common stock upon exercise of stock options of $2.8 million. These were partially offset by a cash dividend of $117.4 million and repayment of $10.4 million of indebtedness under our revolving credit facility and notes payable.
Our financing activities provided net cash of $20.3 million during 2011. Cash flow provided by financing activities consisted primarily of issuance of preferred stock of $19.7 million and a stockholder cash contribution of $6.1 million, partially offset by cash distributions of $5.1 million to stockholders to cover income taxes arising from S corporation earnings.
 
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Contractual obligations
The following table summarizes our contractual obligations as of December 31, 2013.

(in thousands)	  	Total	 	  	1 year
(fiscal
2014)	 	  	2-3 years
(fiscal
2015
and
2016)	 	  	4-5 years
(fiscal
2017 and
2018)	 	  	More than
5 years
(beyond
fiscal
2018)	 	
 	 	
Term loan principal and interest(1)	  	$	118,606	  	  	$	63,652	  	  	$	54,954	  	  	$	—	  	  	$	—	  	
Operating leases(2)	  	 	32,243	  	  	 	7,681	  	  	 	13,368	  	  	 	10,614	  	  	 	580	  	
Sponsorship commitments(3)	  	 	34,423	  	  	 	18,526	  	  	 	15,596	  	  	 	301	  	  	 	—	  	
License financing arrangement(4)	  	 	3,600	  	  	 	3,600	  	  	 	—	  	  	 	—	  	  	 	—	  	
Other contractual commitments(5)	  	 	4,365	  	  	 	1,896	  	  	 	2,469	  	  	 	—	  	  	 	—	  	
Capital equipment purchase commitments(6)	  	 	3,607	  	  	 	3,607	  	  	 	—	  	  	 	—	  	  	 	—	  	
	  	 	 	 	
Total contractual cash obligations	  	$	196,844	  	  	$	98,962	  	  	$	86,387	  	  	$	10,915	  	  	$	580	  	

(1)	 	Interest payments were calculated using the applicable rate as of December 31, 2013. See Note 9 of our consolidated financial statements included elsewhere in this prospectus.	
 
(2)	 	We lease our facilities under long-term operating leases, which expire at various dates through May 2019. The lease agreements frequently include leasehold improvement incentives, escalating lease payments, renewal provisions and other provisions which require us to pay taxes, insurance, maintenance costs or defined rent increases.	
 
(3)	 	We sponsor sporting events and athletes as part of our marketing efforts. In many cases, we enter into multi-year agreements with event organizers and athletes.	
 
(4)	 	In August 2013, we entered into a license agreement with the Santa Clara Stadium Authority which gave us rights during the agreement term to season tickets for a National Football League team. The cost of the license was $4.0 million, of which $3.6 million remains to be paid as of December 31, 2013 and was recorded as a short-term liability.	
 
(5)	 	In 2013, we purchased software licenses and engaged outside consultants to assist with upgrading or implementing our financial and IT systems, which require payments over multiple years.	
 
(6)	 	We enter into contracts to acquire equipment for tooling and molds as part of our manufacturing operations. In addition, we incur purchase commitments related to the manufacturing of our POP displays by third parties. We have revised the previously disclosed amount for capital equipment purchase commitments as of December 31, 2013 to correct this amount.	
As of March 31, 2014, our sponsorship commitments decreased to $22.1 million, as we amended a sponsorship agreement that would have expired in 2015, to expire in 2014. Our capital equipment purchase commitments increased to $8.3 million as of March 31, 2014. In addition, as of March 31, 2014, we fully repaid the license financing arrangement with the Santa Clara Stadium Authority.
We subcontract with other companies to manufacture our products. During the normal course of business, we and our contract manufacturers procure components based upon a forecasted production plan. If we cancel all or part of the orders, we may be liable to our suppliers and contract manufacturers for the cost of the unutilized component orders or components purchased by our contract manufactures. Our consolidated financial position and results of operations could be negatively impacted if we are required to compensate our suppliers or contract manufacturers for any liabilities incurred due to these purchase contract commitments.
The table above excludes the liability for uncertain tax positions of $8.6 million as of December 31, 2013, due to the uncertainty of when the related tax settlements will become due. As of March 31, 2014, the liability for uncertain tax positions was $9.1 million.
Sale of receivables
During 2013 and the three months ended March 31, 2014, we sold accounts receivable, without recourse, of $71.1 million and $31.3 million, respectively, from a retail customer to a third-party
 
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banking institution. Factoring fees of $0.6 million and $0.3 million in 2013 and the three months ended March 31, 2014, respectively, related to this sale were included in interest expense.
Off-balance sheet arrangements
During the periods presented, we did not have any relationships with unconsolidated organizations or financial partnerships, such as structured finance or special purpose entities, which would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes.
Critical accounting policies
We prepare our consolidated financial statements in accordance with accounting principles generally accepted in the United States. The preparation of these consolidated financial statements requires us to make estimates, assumptions and judgments that can significantly impact the amounts we report as assets, liabilities, revenue, costs and expenses and the related disclosures. We base our estimates on historical experience and other assumptions that we believe are reasonable under the circumstances. Our actual results could differ significantly from these estimates under different assumptions and conditions. We believe that the accounting policies discussed below are critical to understanding our historical and future performance as these policies involve a greater degree of judgment and complexity.
Revenue recognition
Revenue is derived from the sale of our capture devices, as well as the related implied post contract support, or PCS. We recognize revenue when persuasive evidence of an arrangement exists, delivery has occurred, the sales price is fixed or determinable and collectability is reasonably assured. Evidence of an arrangement consists of an order from our retailers, online customers or distributors. We consider delivery to have occurred once title and risk of loss has been transferred. Customer deposits are included in accrued liabilities on the Consolidated balance sheets and are recognized as revenue when all the criteria for recognition of revenue are met.
Our standard terms and conditions of sale do not allow for product returns other than under warranty. However, we grant limited rights to return product for certain large retailers and distributors. Estimates of expected future product returns are recognized at the time of sale based on analyses of historical return trends by customer class. Upon recognition, we reduce revenue and cost of sales for the estimated returns. Return trends are influenced by product life cycle status, new product introductions, market acceptance of products, sales levels, product sell-through, the type of customer, seasonality, product quality issues, operational policies and procedures and other factors. Return rates can fluctuate over time, but are sufficiently predictable to allow us to estimate expected future product returns. Actual returns in any future period could differ from our estimates, which could impact the revenue that we report.
For customers who purchase products directly from our website, transfer of risk of loss is determined to be upon delivery to the customer’s address. We defer those sales made to customers who purchase products from our website in the last four days of the reporting period for which we estimate delivery to occur in the following period. We use estimates to determine when shipments are delivered based on third-party metrics for average transit time. Additionally, we provide a 30-day money back guarantee for web-based sales for which we reduce revenue by an estimate of potential future product returns related to the web-based sales, based on analyses of historical return trends and seasonality. Estimates for web-based sale returns and estimates to derive web sale shipment delivery dates may differ from actual results.
 
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Our products include multiple elements. We have determined our multiple element arrangements generally include two separate units of accounting: the first element is the hardware component (camera and accessories) and the embedded firmware essential to the functionality of the camera delivered at the time of sale. The second element is the implied right for the customer to receive PCS included with the purchase of our products. PCS includes the right to receive, on a when and if available basis, future unspecified firmware upgrades and features as well as bug fixes, email and telephone support.
We account for each element separately and allocate fees from the arrangement based on the relative selling price of each element. Revenue allocated to an undelivered element is recognized over an estimated service period. We recognize revenue for delivered elements only when all contractual obligations have been completed.
We use best estimate of the selling price, or BESP, to determine allocation of revenue. BESP reflects our best estimates of what the selling prices of elements would be if they were sold regularly on a stand-alone basis. We believe that BESP is the most appropriate methodology for determining the allocation of revenue for multiple element arrangements.
We have allocated revenue between our multiple elements using the relative selling price method which is based on the BESP for all deliverables. Revenue allocated to the delivered hardware and the related essential software is recognized at the time of sale provided the conditions for recognition of revenue have been met. Revenue allocated to PCS is deferred and recognized on a straight-line basis over the estimated term of the support period, which is estimated to be one year based on historical experience. As of December 31, 2012 and 2013 and March 31, 2014, deferred implied PCS revenue was $3.8 million, $6.4 million and $7.4 million, respectively.
Sales incentives
We offer sales incentives through various programs, consisting primarily of cooperative advertising and marketing development fund programs. We record cooperative advertising and marketing development fund programs with customers as a reduction to revenue unless we receive an identifiable benefit in exchange for credits claimed by the customer and can reasonably estimate the fair value of the identifiable benefit received, in which case we will record it as a marketing expense. In addition, we offer price protection discounts to certain customers when new capture device models are released and the customer has remaining inventory of the older models. We estimate price protection discounts, which are recorded as a reduction of revenue, by evaluating inventory held by the customer subject to price protection. We record reductions to revenue for sales incentives when the related revenue is recognized.
Inventories
Inventories consist of finished goods and component parts, which are purchased from contract manufacturers. Inventories are stated at the lower of average cost or market on a first-in, first-out basis. Our assessment of market value requires the use of estimates regarding the net realizable value of our inventory balances, including an assessment of excess or obsolete inventories. We determine excess and obsolete inventories based on an estimate of the future demand for our products within a specified time horizon, generally 12 months. The estimates used for future demand are also used for near-term capacity planning and inventory purchases and are consistent with revenue forecast assumptions. If our demand forecast is greater than actual demand, we may be required to record an excess inventory charge, which would decrease
 
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gross profit. Any write-downs taken establish a new cost basis for the underlying inventory. For all periods presented, inventories were predominantly comprised of finished goods.
POP displays
We sponsor a program to provide retailers with POP displays in order to facilitate the marketing of our products within retail stores. The POP displays contain a video display that broadcast video images taken by GoPro cameras with product placement available on the POP display for our cameras and accessories. We generally provide these POP displays to customers free of charge. The costs of the POP displays, less any fees charged to customers, are capitalized as a long-term asset, and the net cost is recognized over the expected period of the benefit provided by these assets, which is generally 24 months. POP display amortization included in sales and marketing expense were $3.6 million, $8.6 million, $13.5 million and $4.5 million for 2011, 2012, 2013 and the three months ended March 31, 2014, respectively.
Warranty
We generally provide 12-month warranty coverage on all of our products except in the EU where we provide a two-year warranty. Our warranty provides for repair or replacement of the associated products during the warranty period. We establish a liability for estimated product warranty costs at the time product revenue is recognized. The warranty obligation is affected by product failure rates and the related use of materials, labor costs and freight incurred in correcting any product failure. Should actual product failure rates, use of materials or other costs differ from our estimates, additional warranty liabilities could be required, which would reduce our gross profit.
Income taxes
We utilize the asset and liability method of accounting for income taxes, which requires the recognition of deferred tax assets and liabilities for expected future consequences of temporary differences between the financial reporting and income tax bases of assets and liabilities using enacted tax rates. We make estimates, assumptions and judgments to determine our provision for income taxes and also for deferred tax assets and liabilities and any valuation allowances recorded against our deferred tax assets. We assess the likelihood that our deferred tax assets will be recovered from future taxable income and, to the extent we believes that recovery is not likely, we establish a valuation allowance.
The calculation of our current provision for income taxes involves the use of estimates, assumptions and judgments while taking into account current tax laws, our interpretation of current tax laws and possible outcomes of future tax audits. We have established reserves to address potential exposures related to tax positions that could be challenged by tax authorities. Although we believe our estimates, assumptions and judgments to be reasonable, any changes in tax law or our interpretation of tax laws and the resolutions of potential tax audits could significantly impact the amounts provided for income taxes in our consolidated financial statements.
The calculation of our deferred tax asset balance involves the use of estimates, assumptions and judgments while taking into account estimates of the amounts and type of future taxable income. Actual future operating results and the underlying amount and type of income could differ materially from our estimates, assumptions and judgments thereby impacting our financial position and results of operations.
 
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We include interest and penalties related to unrecognized tax benefits within income tax expense. We have not incurred any interest or penalties related to unrecognized tax benefits in any of the periods presented.
We have adopted ASC 740-10 “Accounting for Uncertainty in Income Taxes” that prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of uncertain tax positions taken or expected to be taken in our income tax return, and also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition.
Goodwill, acquired intangible assets and other long-lived assets
Goodwill represents the excess of the purchase price over the fair value of the net tangible and intangible assets acquired in a business combination. Goodwill is not amortized but we perform an annual qualitative assessment of our goodwill during the fourth quarter of each calendar year to determine if any events or circumstances exist, such as an adverse change in business climate or a decline in the overall industry demand, that would indicate that it would more likely than not reduce the fair value of a reporting unit below its carrying amount, including goodwill. If events or circumstances do not indicate that the fair value of a reporting unit is below its carrying amount, then goodwill is not considered to be impaired and no further testing is required. If further testing is required, we perform a two-step process. The first step involves comparing the fair value of our reporting unit to its carrying value, including goodwill. If the carrying value of the reporting unit exceeds its fair value, the second step of the test is performed by comparing the carrying value of the goodwill in the reporting unit to its implied fair value. An impairment charge is recognized for the excess of the carrying value of goodwill over its implied fair value. For the purpose of impairment testing, we have determined that we have one reporting unit. There has been no impairment of goodwill for any periods presented.
Our long-lived assets consist of property and equipment and acquired intangible assets. Acquired intangible assets with definite lives are amortized on a straight-line basis over the remaining estimated economic life of the underlying products and technologies. We review our definite lived long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of a long-lived asset may not be recoverable. Recoverability of an asset group is measured by comparing its carrying amount to the expected future undiscounted cash flows that the asset group is expected to generate. If it is determined that an asset group is not recoverable, an impairment loss is recorded in the amount by which the carrying amount of the asset group exceeds its fair value. There has been no impairment of long-lived assets for any periods presented.
Stock-based compensation
We account for stock-based compensation activity using the fair value method, which requires the measurement and recognition of compensation expense for all share-based payment awards based on estimated fair values. This method requires companies to estimate the fair value of stock-based compensation on the date of grant using an option pricing model. We use the Black-Scholes option pricing model to measure stock-based compensation. The Black-Scholes model determines the fair value of share-based payment awards based on the fair value of the underlying common stock on the date of grant and is affected by assumptions regarding a number of highly complex and subjective variables. These variables include, but are not limited to, the fair value of the underlying common stock, expected volatility over the term of the awards and actual and projected employee stock option exercise behaviors. In addition, we are
 
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required to estimate the expected forfeiture rate and only recognize expense for those shares expected to vest. The assumptions used in calculating the fair value of the stock-based awards represent management judgment. As a result, if factors change and different assumption are used, the stock-based compensation expense could be materially different in the future. Compensation expense relating to employee stock awards is recorded on a straight-line basis.
Stock awards issued to non-employees are accounted for at fair value. We believe that the fair value of the awards is more reliably measured than the fair value of services received. We record compensation expense based on the then-current fair values of the stock awards at each financial reporting date. Compensation recorded during the service period is adjusted in subsequent periods for changes in the stock award’s fair value until the earlier of the date at which the non-employee’s performance is complete or a performance commitment is reached, which is generally when the stock option award vests. Compensation expense relating to non-employee stock awards is recorded on a straight-line basis.
Determining the fair value of stock-based awards on the grant date requires the use of estimates and assumptions, including the fair value of our common stock, exercise price of the stock option, expected volatility, expected life, risk-free interest rate and dividend rate. We estimate the expected volatility of our stock options by taking the average historical volatility of a group of comparable publicly traded companies over a period equal to the expected life of the options. Since we have undergone significant operational and structural changes, the historical exercise data do not provide a reasonable basis upon which to estimate expected life. As a result, we used the simplified method, as provided under SAB Topic 14.D, “Share-Based Payment,” to calculate the expected term estimate based on the options vesting term and contractual terms. The risk-free interest rate is the estimated average interest rate based on U.S. Treasury zero-coupon notes with terms consistent with the expected life of the awards. The expected dividend yield is zero as we do not anticipate paying any recurring cash dividends in the foreseeable future and the prior dividend event is viewed as a one-time capital event. We estimate the forfeiture rate of our stock-based awards based on an analysis of our actual forfeitures, analysis of employee turnover and other factors. The impact from a forfeiture rate adjustment would be recognized in full in the period in which the forfeiture rate changes and, if the actual number of future forfeitures differs from our prior estimates, we may be required to record adjustments to stock-based compensation expense in future periods.
As of March 31, 2014, the aggregate intrinsic value of vested options, unvested options and restricted stock outstanding was             million,             million and             million, respectively, based on an assumed initial public offering price of per share, which is the midpoint of the estimated offering price range set forth on the cover page of this prospectus. The amount of unearned stock-based compensation related to unvested share-based payment awards at December 31, 2013 and March 31, 2014 was $22.8 million and $32.6 million, respectively. As of each of December 31, 2013 and March 31, 2014, the weighted-average period over which the unearned stock-based compensation is expected to be recognized was 1.0 year.

   	  	Years ended December 31,	 	  	Three months ended
March 31,	 	
 	  	2011	 	  	2012	 	  	2013	 	  	2013	 	  	2014	 	
 	 	  	 	 	 	  	 	 	 	
Expected life (years)	  	 	5.0–6.1    	  	  	 	5.1–6.1    	  	  	 	5.3–6.1    	  	  	 	5.9-6.1    	  	  	 	5.4-6.3    	  	
Risk-free interest rate	  	 	1.1%–2.4%	  	  	 	0.8%–2.4%	  	  	 	0.8%–2.4%	  	  	 	1.0%–1.2%	  	  	 	1.8%–2.0%	  	
Volatility	  	 	56%–59%	  	  	 	56%–60%	  	  	 	56%–60%	  	  	 	56%	  	  	 	55%–56%	  	
Dividend yield	  	 	0%	  	  	 	0%	  	  	 	0%	  	  	 	0%	  	  	 	0%	  	

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We have granted options to purchase shares of common stock as follows:

Grant date	  	Number
of options
granted	 	  	Option
exercise
price	 	  	Fair value of
common stock
per share(1)	 	  	Fair value of
common stock
options per
share(2)	 	  	Grant date
fair value	 	
 	 	
 	  	 	 	  	 	 	  	 	 	  	 	 	  	(in thousands)	 	
February 2012	  	 	171,450	  	  	$	1.90	  	  	$	3.16	  	  	$	2.08	  	  	$	357	  	
June 2012	  	 	608,550	  	  	 	2.96	  	  	 	8.30	  	  	 	6.27	  	  	 	3,817	  	
October 2012	  	 	531,700	  	  	 	8.30	  	  	 	8.30	  	  	 	4.44	  	  	 	2,361	  	
November 2012	  	 	76,650	  	  	 	8.30	  	  	 	12.13	  	  	 	7.57	  	  	 	580	  	
February 2013	  	 	782,950	  	  	 	13.72	  	  	 	13.72	  	  	 	7.22	  	  	 	5,653	  	
March 2013	  	 	126,000	  	  	 	13.72	  	  	 	15.40	  	  	 	8.51	  	  	 	1,072	  	
April 2013	  	 	162,650	  	  	 	15.40	  	  	 	15.40	  	  	 	8.36	  	  	 	1,359	  	
June 2013	  	 	499,200	  	  	 	15.40	  	  	 	15.59	  	  	 	8.31	  	  	 	4,310	  	
July 2013	  	 	143,300	  	  	 	15.59	  	  	 	15.59	  	  	 	8.71	  	  	 	1,248	  	
September 2013	  	 	338,300	  	  	 	15.59	  	  	 	16.19	  	  	 	9.28	  	  	 	3,139	  	
October 2013	  	 	499,200	  	  	 	16.19	  	  	 	16.19	  	  	 	9.01	  	  	 	4,498	  	
December 2013	  	 	354,800	  	  	 	16.19	  	  	 	16.22	  	  	 	9.10	  	  	 	3,228	  	
January 2014	  	 	1,148,650	  	  	 	16.22	  	  	 	16.22	  	  	 	8.84	  	  	 	10,151	  	
March 2014	  	 	422,209	  	  	 	16.39	  	  	 	16.39	  	  	 	8.68	  	  	 	3,666	  	

(1)	 	The fair value of common stock per share utilized for financial reporting purposes.	
 
(2)	 	The weighted average grant date fair value of the options granted determined by utilizing the Black-Scholes option pricing model used to record stock-based compensation expense.	
Common stock valuations
Given the absence of a public trading market of our common stock, and in accordance with the American Institute of Certified Public Accountants Practice Guide, Valuation of Privately Held Company Equity Securities Issued as Compensation, our board of directors exercised reasonable judgment and considered numerous and subjective factors to determine the best estimate of fair value of our common stock, including the following:
Company specific factors
 
Ÿ 	 	actual and forecasted operating and financial performance based on management’s estimate;	
 
Ÿ 	 	the status of research and development;	
 
Ÿ 	 	independent third-party valuations;	
 
Ÿ 	 	market adoption and success of our products;	
 
Ÿ 	 	the development of customer relationships;	
 
Ÿ 	 	consumer and industry recognition;	
 
Ÿ 	 	the hiring of key personnel;	
 
Ÿ 	 	the amount and pricing of preferred stock financings with outside investors in arms-length transactions;	
 
Ÿ 	 	the rights and preferences of preferred stock relative to common stock;	
 
Ÿ 	 	the amount and pricing of common stock transactions with outside investors in arms-length transactions;	
 
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Ÿ 	 	the historical lack of a public market of our common and preferred stock; and	
 
Ÿ 	 	the likelihood of achieving a liquidity event, such as an initial public offering or a sale of our company given the prevailing market conditions and the nature and history of our business.	
General economic factors
 
Ÿ 	 	industry trends and competitive environment;	
 
Ÿ 	 	trends in consumer spending, including consumer confidence;	
 
Ÿ 	 	overall economic indicators, including gross domestic product, employment, inflation and interest rates; and	
 
Ÿ 	 	the general economic outlook.	
Our common stock valuations utilize a market approach which bases the valuation of our common stock on multiples of revenue or EBITDA for a group of publicly traded companies that we believe are similar to us in terms of size, product market, liquidity, financial leverage, revenue, profitability, growth and other factors. Multiples of revenue or EBITDA from the select group of publicly traded companies are calculated and applied to our business metrics, typically one year forward looking revenue or EBITDA. Prior sales of the company shares are included in the market approach and involve examining any historical transactions related to the sale of our redeemable convertible preferred stock. The market value approach has been applied consistently over the valuation periods noted below.
Once a total equity value is computed, we allocate value to each class of stock using either the Option Pricing Model, or OPM, or the Probability Weighted Expected Return Method, or PWERM. The OPM treats common stock and convertible preferred stock as call options on an enterprise value, with exercise prices based on the liquidation preference of the preferred stock. The common stock is modeled as a call option with a claim on the enterprise at an exercise price equal to the remaining value immediately after the preferred stock is liquidated. The OPM is appropriate to use when the range of possible future outcomes is difficult to predict and thus creates highly speculative forecasts. PWERM involves a forward-looking analysis of the possible future outcomes of the enterprise. This method is particularly useful when discrete future outcomes can be predicted at a relatively high confidence level with a probability distribution. Discrete future outcomes considered under the PWERM include an initial public offering, or IPO, as well as non-IPO market based outcomes. Determining the fair value of the enterprise using the PWERM requires us to develop assumptions and estimates for both the probability of an IPO liquidity event and non-IPO outcomes, as well as the values we expect those outcomes could yield. We apply significant judgment in developing these assumptions and estimates, primarily based upon the enterprise value we determined using the market approach, our knowledge of the business and our reasonable expectations of discrete outcomes occurring.
Over time, as certainty developed regarding possible discrete events, including an IPO, we transitioned the methodology we used to allocate our enterprise value from an OPM to a PWERM. We used an OPM through the valuations as of March 31, 2012, and a PWERM since the valuation as of June 30, 2012.
A brief narrative of the specific factors considered by our board of directors in determining the fair value of our common stock as of the date of grant, is set forth below.
 
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February 2012 .    Our board of directors granted stock options in February 2012 with an exercise price of $1.90 per share. For these stock option grants, our board of directors determined the fair value of our common stock on the date of grant to be $1.90 per share based on a number of factors, including market acceptance of the HERO2 and our continued profitability and revenue growth. Our board of directors also considered a contemporaneous third-party valuation as of December 31, 2011. The valuation utilized a market approach of comparable companies in our industry. It applied the market factors to our forward-looking revenue and adjusted EBITDA and allocated enterprise value between each class of stock based on an OPM. The aggregate enterprise value was allocated to each class of stock utilizing an OPM with the following assumptions: a time to a liquidity event of two years, a volatility of 57% and a risk-free interest rate of 0.25%. The time to a liquidity event was determined based upon the expected time frame for us to achieve our business strategy, the volatility was based on the historical volatility of a group of comparable publicly traded companies over a two-year period and the risk-free interest rate was based on the yield of a U.S. Treasury bond at the time of grant over a two-year period. A 25% discount for lack of marketability was applied to the resulting value of our common stock, which was based on a liquidity event happening in two years.
Subsequent to June 2012, we utilized internal valuation models to calculate the fair value of these options for financial reporting purposes. We evaluated and adjusted the market factors applied to our forward-looking revenue and adjusted EBITDA. As a result of our evaluation, we determined the fair value of our common stock for financial reporting purposes to be $3.16.
June 2012 .    Our board of directors granted stock options in June 2012 with an exercise price of $2.96 per share. For these stock option grants, our board of directors determined the fair value of our common stock on the date of grant to be $2.96 per share based on a number of factors, including improvements in the U.S. economy, and our research and development efforts. Our board of directors also considered a contemporaneous third-party valuation as of March 31, 2012. The valuation utilized a market approach of comparable companies in our industry. It applied market factors to our forward-looking revenue and adjusted EBITDA and allocated enterprise value between each class of stock based on an OPM. The aggregate enterprise value was allocated to each class of stock utilizing an OPM with the following assumptions: a time to a liquidity event of two years, a volatility of 59% and risk-free interest rate of 0.33%. The time to a liquidity event remained consistent with the December 31, 2011 valuation based on information known as of March 31, 2012, volatility was based on the historical volatility of a group of comparable publicly traded companies over a two-year period and the risk-free interest rate was based on the yield of a U.S. Treasury bond at the time of grant over a two year period. A 25% discount for lack of marketability was applied to the resulting value of our common stock, which was consistent with the valuation as of December 31, 2011.
For financial reporting purposes, the fair value of the common stock for purposes of calculating the related stock-based compensation expense was based on a number of factors, including the contemporaneous third-party valuation as of June 30, 2012 and other factors that existed at the date of grant. Due to the proximity of the June 2012 grants to the valuation as of June 30, 2012, the fair value of the underlying common stock used to calculate the fair value of these options on the grant date for financial statement purposes was determined to be $8.30 per share.
October and November 2012 .    Our board of directors granted stock options in October and November 2012 with an exercise price of $8.30 per share. For these stock option grants, our board of directors determined the fair value of our common stock on the date of grant to be $8.30 per share based on a number of factors, including continued growth in the U.S. economy
 
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and an improved financial outlook due to record revenue in the second quarter of 2012 and our continued progress on development of our next generation of capture devices. Our board of directors also considered a contemporaneous third-party valuation as of June 30, 2012. The valuation used a market approach and changed our group of comparable companies from those in our industry to technology and retail companies with similar revenue and earnings growth that had recently completed an initial public offering of stock to the public, which we refer to as our group of comparable companies. It applied the new comparable group market factors to our forward looking revenue and EBITDA to determine our enterprise value. As a result, the set of comparable companies utilized in the valuation had a slightly higher revenue multiple. During this time, as certainty developed regarding possible discrete events, including an IPO, the method of allocating enterprise value between each class of stock was changed to a PWERM from an OPM. The PWERM estimates common equity value based on current estimates of an IPO or merger or sale scenario. The expected equity values for the different scenarios in the PWERM model were weighted as follows: 30% probability of IPO in the second quarter of 2013, 60% probability of IPO in the fourth quarter of 2013 and a 10% probability of merger or sale in late 2013. A 20% discount for lack of marketability was applied to the resulting value of our common stock, which was based on a liquidity event happening in 1.4 years.
For financial reporting purposes, the fair value of the common stock for purposes of calculating the related stock-based compensation expense was based on a number of factors, including the contemporaneous third-party valuation as of November 30, 2012 and other factors that existed at the date of grant. Due to the proximity of the November 2012 grants to the valuation as of November 30, 2012, the fair value of the underlying common stock used to calculate the fair value of these options on the grant date for financial statement purposes was determined to be $12.13 per share. The valuation as of November 30, 2012 was determined using the market approach of comparable high tech companies with similar revenue and earnings growth that had recently had an initial public offering of stock to the public. It applied the comparable group market factors to our forward looking revenue and allocated the enterprise value to each class of stock using the PWERM method. The expected equity values for the different scenarios in the PWERM model were weighted as follows: 30% probability of IPO in the second quarter of 2013, 60% probability of IPO in the fourth quarter of 2013 and a 10% probability of merger or sale in late 2013. A 15% discount for lack of marketability was applied to the resulting value of our common stock, which was based on a liquidity event happening in 0.9 years.
February and March 2013 .    Our board of directors granted stock options in February and March 2013 with an exercise price of $13.72 per share. For these stock option grants, our board of directors determined the fair value of our common stock on the date of grant to be $13.72 per share based on a number of factors, including market acceptance of the HERO3, acquisition of a credit facility and issuance of a cash dividend in December 2012, a sale of stock by stockholders to a third-party investor in an arms-length transaction for approximately $200.0 million in December 2012, as well as high revenue growth in the fourth quarter of 2012. Our board of directors also considered a contemporaneous third-party valuation as of December 31, 2012. The valuation used a market approach of our group of comparable companies. It applied the comparable group market factors to our forward looking revenue and allocated enterprise value between each class of stock using the PWERM method. The expected equity values for the different scenarios in the PWERM model were weighted as follows: 30% probability of IPO in the second quarter of 2013, 60% probability of IPO in the fourth quarter of 2013 and a 10% probability of merger or sale in late 2013. A 15% discount for lack of marketability was applied to the resulting value of our common stock, which was based on a liquidity event happening in 0.8 years.
 
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For financial reporting purposes, the fair value of the common stock for purposes of calculating the related stock-based compensation expense was based on a number of factors, including the contemporaneous third-party valuation as of March 31, 2013 and other factors that existed at the date of grant. Due to the proximity of the March 2013 grants to the valuation as of March 31, 2013, the fair value of the underlying common stock used to calculate the fair value of these options on the grant date for financial statement purposes was determined to be $15.40 per share.
April and June 2013 .    Our board of directors granted stock options in April and June 2013 with an exercise price of $15.40 per share. For these stock option grants, our board of directors determined the fair value of our common stock on the date of grant to be $15.40 per share based on a number of factors, including our research and development efforts. Our board of directors also considered a contemporaneous third-party valuation as of March 31, 2013. The valuation used a market approach of our group of comparable companies. It applied the comparable group market factors to our forward looking revenue and allocated enterprise value between each class of stock using the PWERM method. The expected equity values for the different scenarios in the PWERM model were weighted as follows: 90% probability of IPO in the fourth quarter of 2013 and a 10% probability of merger or sale in late 2013. A 12% discount for lack of marketability was applied to the resulting value of our common stock, which was based on a liquidity event occurring in 0.8 years.
For financial reporting purposes, the fair value of the common stock for purposes of calculating the related stock-based compensation expense for the June 2013 grants was based on a number of factors, including the contemporaneous third party valuation as of June 30, 2013 and other factors that existed at the date of grant. Due to the proximity of the June 2013 grants to the valuation as of June 30, 2013, the fair value of the underlying common stock used to calculate the fair value of these options on the grant date for financial statement purposes was determined to be $15.59 per share.
July and September 2013 .    Our board of directors granted stock options in July and September 2013 with an exercise price of $15.59 per share. For these stock option grants, our board of directors determined the fair value of our common stock on the date of grant to be $15.59 per share based on a number of factors, including our research and development efforts and our updated assessment of timing to liquidity. Our board of directors also considered a contemporaneous third-party valuation as of June 30, 2013. The valuation used a market approach of our group of comparable companies. It applied the comparable group market factors to our forward looking revenue and allocated enterprise value between each class of stock using the PWERM method. The expected equity values for the different scenarios in the PWERM model were weighted as follows: 45% probability of IPO in the fourth quarter of 2013, 50% probability of IPO in the first quarter of 2014 and a 5% probability of merger or sale in late 2013. A 5% discount for lack of marketability was applied to the resulting value of our common stock, which was based on a liquidity event happening in 0.6 years.
For financial reporting purposes, the fair value of the common stock for purposes of calculating the related stock-based compensation expense for September 2013 grants was based on a number of factors, including the contemporaneous third party valuation as of September 30, 2013 and other factors that existed at the date of grant. Due to the proximity of the September 2013 grants to the valuation as of September 30, 2013, the fair value of the underlying common stock used to calculate the fair value of these options on the grant date for financial statement purposes was determined to be $16.19 per share.
 
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The valuation as of September 30, 2013 was determined using the market approach of our group of comparable companies. It applied the comparable group market factors to our forward looking revenue and allocated the enterprise value to each class of stock using the PWERM method. The expected equity values for the different scenarios in the PWERM model were weighted as follows: 55% probability of IPO in the first quarter of 2014, 30% probability of IPO in the second quarter of 2014, and a 15% probability of merger or sale in early 2014. A 5% discount for lack of marketability was applied to the resulting value of our common stock, which was based on a liquidity event happening in 0.6 years.
October and December 2013 .    Our board of directors granted stock options in October and December 2013 with an exercise price of $16.19 per share. For these stock option grants, our board of directors determined the fair value of our common stock on the date of grant to be $16.19 per share based on a number of factors, including our research and development efforts and our updated assessment of timing to liquidity. Our board of directors also considered a contemporaneous third-party valuation as of September 30, 2013.
For financial reporting purposes, the fair value of the common stock for purposes of calculating the related stock-based compensation expense for the December 2013 grants was based on a number of factors, including the contemporaneous third-party valuation as of December 31, 2013 and other factors that existed at the date of grant. Due to the proximity of the December 2013 grants to the valuation as of December 31, 2013, the fair value of the underlying common stock used to calculate the fair value of these options on the grant date for financial statement purposes was determined to be $16.22 per share. The valuation as of December 31, 2013 was determined using the market approach of our group of comparable companies. It applied the comparable group market factors to our forward looking revenue and allocated the enterprise value to each class of stock using the PWERM method. The expected equity values for the different scenarios in the PWERM model were weighted as follows: 25% probability of IPO in the second quarter of 2014, 55% probability of IPO in the third quarter of 2014, and a 20% probability of merger or sale in early 2014. A 5% discount for lack of marketability was applied to the resulting value of our common stock, which was based on a liquidity event happening in 0.7 years.
January 2014.     Our board of directors granted stock options in January 2014 with an exercise price of $16.22 per share. For these stock option grants, our board of directors determined the fair value of our common stock on the date of grant to be $16.22 per share based on a number of factors, including our recent performance, research and development efforts and our updated assessment of timing to liquidity. Our board of directors also considered a contemporaneous third-party valuation as of December 31, 2013.
For financial reporting purposes, the fair value of the common stock for purposes of calculating the related stock-based compensation expense for the January 2014 grants was based on a number of factors, including the contemporaneous third-party valuation as of December 31, 2013 and other factors that existed at the date of grant. Due to the proximity of the January 2014 grants to the valuation as of December 31, 2013, the fair value of the underlying common stock used to calculate the fair value of these options on the grant date for financial statement purposes was determined to be $16.22 per share.
March 2014 .    Our board of directors granted stock options in March 2014 with an exercise price of $16.39 per share. For these stock option grants, our board of directors determined the fair value of our common stock on the date of grant to be $16.39 per share based on a number of factors, including our research and development efforts and our updated assessment of timing to
 
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liquidity. Our board of directors also considered a contemporaneous third-party valuation as of February 28, 2014. The valuation used a market approach of our group of comparable companies. It applied the comparable group market factors to our forward looking revenue and allocated enterprise value between each class of stock using the PWERM method. The expected equity values for the different scenarios in the PWERM model were weighted as follows: 60% probability of IPO in the second quarter of 2014, 30% probability of IPO in the third quarter of 2014 and a 10% probability of merger or sale in late 2014. A 5% discount for lack of marketability was applied to the resulting value of our common stock, which was based on a liquidity event happening in 0.6 years.
For financial reporting purposes, the fair value of the common stock for purposes of calculating the related stock-based compensation expense for the March 2014 grants was based on a number of factors, including the contemporaneous third-party valuation as of February 28, 2014 and other factors that existed at the date of grant. Due to the proximity of the March 2014 grants to the valuation as of February 28, 2014, the fair value of the underlying common stock used to calculate the fair value of these options on the grant date for financial statement purposes was determined to be $16.39 per share.
Upon completion of this offering, our common stock will be publicly traded and will therefore be subject to potentially significant fluctuations in the market price. Such fluctuations, if they occur, could impact the volatility used in the fair value calculations which could also impact our future stock-based compensation, as increased volatility would increase the fair value of the related awards granted in the future periods. In addition, increases and decreases in market price of our common stock will also increase and decrease the fair value of our stock-based awards granted in future periods.
Recent accounting pronouncements
In July 2013, the Financial Accounting Standards Board issued a new accounting standard update on the financial statement presentation of unrecognized tax benefits. The new guidance provides that a liability related to an unrecognized tax benefit would be presented as a reduction of a deferred tax asset for a net operating loss carryforward, a similar tax loss or a tax credit carryforward if such settlement is required or expected in the event the uncertain tax position is disallowed. The new guidance becomes effective for us on January 1, 2014 and it should be applied prospectively to unrecognized tax benefits that exist at the effective date with retrospective application permitted. We adopted the guidance on January 1, 2014. The guidance had no material impact to our financial position or results of operations in the first quarter of 2014.
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 requirements 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. 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,
 
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therefore, we will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
Quantitative and qualitative disclosures about market risk
We are exposed to market risks in the ordinary course of our business. These risks primarily include foreign currency and interest rate risks as follows:
Foreign currency risk
To date, all of our product sales and inventory purchases have been denominated in U.S. dollars. We therefore have not had any foreign currency risk associated with these two activities. The functional currency of all of our entities is the U.S. dollar. Our operations outside of the United States incur a portion of their operating expenses in foreign currencies, principally the Hong Kong Dollar. Our results of operations and cash flows are, therefore, subject to fluctuations due to changes in foreign currency exchange rates. However, we believe that the exposure to foreign currency fluctuation from operating expenses is immaterial at this time as the related costs do not constitute a significant portion of our total expenses. As we grow our operations, our exposure to foreign currency risk could become more significant. To date, we have not entered into any foreign currency exchange contracts and currently do not expect to enter into foreign currency exchange contracts for trading or speculative purposes.
Interest rate risk
We had cash totaling $36.5 million, $101.4 million and $111.2 million at December 31, 2012 and 2013 and March 31, 2014, respectively. Our cash consists of cash in bank accounts. The primary objectives of our investment activities are to preserve principal and provide liquidity without significantly increasing risk. Our cash is held for working capital purposes. We do not enter into investments for trading or speculative purposes.
We had outstanding term debt of $120.0 million, $114.0 million and $111.0 million at December 31, 2012 and 2013 and March 31, 2014, respectively. The interest rate is based on the six-month adjusted LIBOR plus 2.5%. The initial contractual interest rate is 3.06% and adjusts every six months. The term loan had scheduled quarterly principal repayments due on the last day of each quarter of $1.5 million per quarter in 2013, and provides for payments of $3.0 million per quarter in 2014 and $6.0 million for the first three quarters of 2015, with the remaining balance due on December 21, 2015. Our excess cash flows for 2013 triggered a contractual principal prepayment obligation of $48.5 million, which amount has been classified as a current liability as of December 31, 2013 and March 31, 2014. In April 2014, we amended our credit facility to extend the due date for this contractual principal prepayment from April 2014 to December 2014. A hypothetical 50 basis point increase in the LIBOR rate as of March 31, 2014, applied to our outstanding debt balance as of March 31, 2014, would have resulted in an approximately $0.4 million increase in our interest expense and a decline of 4% in our net income for the three months ended March 31, 2014.
 
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 Business
Company overview

GoPro is transforming the way consumers capture, manage, share and enjoy meaningful life experiences. We do this by enabling people to capture compelling, immersive photo and video content of themselves participating in their favorite activities. Our customers include some of the world’s most active and passionate people. The volume and quality of their shared GoPro content, coupled with their enthusiasm for our brand, are virally driving awareness and demand for our products. To date, we have generated substantially all of our revenue from the sale of our cameras and accessories and we believe that the growing adoption of our capture devices and the engaging content they enable, position GoPro to become an exciting new media company.
What began as an idea to help athletes document themselves engaged in their sport has become a widely adopted solution for people to document themselves engaged in their interests, whatever they may be. From extreme to mainstream, professional to consumer, GoPro has enabled the world to capture and share its passions, and the world, in turn, is enabling GoPro to become one of the most exciting and aspirational companies of our time.
Our business focus
Enabling engaging content is at the core of our business. We develop hardware and software solutions to alleviate consumer pain points associated with capturing, managing, sharing and enjoying engaging content.
Capture
Our capture devices enable professional quality capture and exceptional versatility at affordable prices. Our products’ small, lightweight, yet durable designs make them easy to use even in highly challenging situations. In addition, our remote control solutions and our seamless integration with mobile devices via the GoPro App, enable engaging self-capture during virtually any activity. As of March 31, 2014, there have been approximately 6.5 million downloads of the GoPro App.
Since launching our first HD capture device in July 2009, we have sold more than 8.5 million HD cameras, including more than 3.8 million in 2013. We sell our products in over 100 countries and through more than 25,000 retail stores. According to The NPD Group’s Retail Tracking Service,
 
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GoPro was the #1 selling camcorder (by dollars and units) and a top six selling camera accessory company (by dollars and units) in the United States in 2013. Also according to The NPD Group, our HERO cameras represented a 45% share of the U.S. camcorder market (by dollars) in 2013, up from an 11% share during December 2011 and our camera accessories represented a 4% share of the U.S. camera accessory market (by dollars) in 2013.
Manage
We seek to eliminate the pain point of managing content by making it easy for our customers to transfer footage from their cameras to a system that efficiently organizes their content and facilitates convenient editing and sharing. GoPro Studio and the GoPro App reflect the early stages of our content management platform strategy.
GoPro Studio enables our customers to quickly edit simple or complex videos and create videos from time-lapse photo sequences. In 2013, we introduced GoPro Edit Templates, which are based on GoPro’s own original video productions, to enable our customers to quickly produce engaging, professional-quality videos using their own footage. As of March 31, 2014, there had been more than 4.3 million downloads of GoPro Studio. During the first quarter of 2014, our customers in the aggregate exported, on average, more than 20,000 videos per day using GoPro Studio.
In addition to facilitating full camera control from a mobile device, the GoPro App enables a customer to easily and wirelessly copy footage from a GoPro camera to a mobile device for storage and sharing without a computer.
Share
By facilitating the capture, management and editing of engaging photos and videos, we are ultimately helping our customers share more compelling personal content. GoPro Studio and the GoPro App facilitate the posting of photos and videos directly to leading social networks and content platforms, including Facebook, Instagram, Twitter, Vimeo and YouTube. Thousands of GoPro customer photos and videos are shared daily, driving awareness and enthusiasm for our customers’ content, as well as for GoPro’s own brand and products. In 2013, our customers uploaded to YouTube approximately 2.8 years worth of video featuring “GoPro” in the title. Also on YouTube, in the first quarter of 2014, there was an average of 6,000 daily uploads and more than 1.0 billion views representing over 50.0 million watched hours of videos with “GoPro” in the title, filename, tags or description.
Enjoy
GoPro enables the production of entertaining and inspiring content, both in the form of our customers’ UGC, as well as GoPro originally produced content, that we collectively refer to as GoPro programming. This often features professional athletes, celebrities and entertainers, as well as everyday people engaged in their favorite activities.

 
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We believe that increasing our customers’ enjoyment of their content enhances the value proposition of capturing and sharing their lives with our products. Also, having recognized the role GoPro content plays in attracting and exciting consumers, we are expanding the distribution of GoPro programming to engage and build relationships with even those consumers who do not own a GoPro capture device.
We distribute GoPro programming through what we refer to as the GoPro Network, a collection of GoPro Channels hosted on a variety of platforms, including the following:
 
Ÿ 	 	Facebook: over 7.2 million “likes;”	
 
Ÿ 	 	Instagram: over 2.0 million followers;	
 
Ÿ 	 	Twitter: over 950,000 followers; and	
 
Ÿ 	 	YouTube: over 450 million video views, over 1.8 million subscribers and ranked #1 on the Brand Channel Leaderboard for January through March 2014.	

As of December 31, 2013, we had not derived revenue from the distribution of, or social engagement with, our content on the GoPro Network. However, we plan to pursue new revenue opportunities from the distribution of engaging GoPro content in the near term. For example, in the first quarter of 2014, we entered into an agreement with Microsoft to develop and launch the GoPro Channel on Xbox Live, a leading delivery system for IP video streams on connected televisions, that will provide us with access to advertising revenue, fees from third-party sponsorship of the GoPro Channel and the ability to sell our capture devices directly to consumers as they watch GoPro programming. We expect to begin earning revenue from GoPro Channel advertising and sponsorship opportunities on Xbox Live and GoPro Channel advertising on YouTube and Virgin America in the second quarter of 2014. We do not expect the revenue earned from these GoPro Channels to be material to us in 2014.
 
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The virtuous cycle
We believe our business focus results in a virtuous cycle and a self-reinforcing consumer acquisition model that fuels our growth. Our products in the hands of our customers enable compelling, authentic content that organically increases awareness for GoPro and drives demand for our products.

As a result, we have achieved significant growth in recent periods. In 2011, 2012, 2013 and the three months ended March 31, 2014, we generated revenue of $234.2 million, $526.0 million, $985.7 million and $235.7 million and reported net income of $24.6 million, $32.3 million, $60.6 million and $11.0 million, respectively. To date, substantially all of our revenue has been generated from the sale of our capture devices.
The GoPro opportunity
We believe the following create an attractive market opportunity for GoPro.
Consumers want an easy way to self-capture engaging content
Before GoPro, if people wanted footage of themselves engaged in activities, they needed another person to hold and operate a camera. Furthermore, the camera operator needed to be skilled in order to obtain compelling content. Additionally, capturing high-quality content often required expensive, fragile and cumbersome camera equipment that was not accessible to everyone. Accordingly, it was not practical for people to document their experiences during their lives’ most enjoyable moments.
By eliminating the need for a third-party camera operator, GoPro has enabled a new era of convenient self-documentation. Our products’ high-performance features, ease of use and versatility, made available at affordable price points, provide a premium-quality self-capture solution that appeals to both consumers and professionals.
Consumers want a quick, easy way to manage, edit and share their content
The proliferation of social media and content sharing outlets like Facebook, Instagram, Twitter, Vimeo and YouTube reflects a growing consumer interest in sharing personal experiences. According to a Pew Research survey from October 2013, the percentage of American adult Internet users who upload or post videos online more than doubled from 14% in 2009 to 31% in 2013, and 71% of adults who post videos online do so on social networking sites. However,
 
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managing, editing and sharing engaging, high-quality content often requires substantial time, resources and skill. GoPro Studio and the GoPro App begin to address these pain points by offering intuitive, easy-to-use tools for managing, editing and sharing professional-grade footage. We see an opportunity to further develop these currently separate software solutions into an integrated and enhanced GoPro content management platform.
Consumers continue to replace traditional cameras with mobile devices
The rapid adoption of smartphones and tablets with photo and video capabilities has changed the camera landscape and negatively impacted the sales of traditional cameras and digital video camcorders. According to IDC, global shipments of digital cameras fell from 142.7 million units in 2011 to 76.2 million units in 2013, a decline of 47%, and global shipments of digital camcorders fell from 21.1 million units in 2011 to 14.1 million units in 2013, a decline of 33%.
We believe that the emergence of photo- and video-enabled mobile devices is creating further opportunities for GoPro. As mobile devices continue to displace traditional cameras and camcorders, we believe consumers will seek capture devices that offer differentiated capabilities, like GoPro products.
Moreover, we believe mobile devices complement our products. With the GoPro App, mobile devices can be used to remotely control GoPro cameras, thereby optimizing customers’ ability to self-capture high-quality content of themselves and their activities. The GoPro App also enables customers to manage and share their captured content without the need for a computer. Furthermore, smartphones and tablets expand consumers’ ability to access and enjoy GoPro content online.
Consumers want compelling content on demand
According to comScore (US, December 2012), there are over 38.5 billion videos streamed per month and, according to IDC’s 1H’13 research, by 2017, over 2.2 billion users worldwide will be watching streaming video over the Internet.
We believe consumer demand for compelling content combined with GoPro’s self-capture technology and the explosive popularity of social media create a significant media opportunity for GoPro. GoPro programming has developed a dedicated and growing audience. To continue to scale this audience, we have built a team of production professionals who regularly produce content based on inspiring stories from around the world, captured exclusively with our products. In addition, we actively curate and redistribute, with permission, our customers’ most compelling content as GoPro-branded content. We believe GoPro is well-positioned to become the first media company whose content is captured exclusively using its own hardware.
To date, the GoPro Channels on YouTube, exclusive of our customers’ own shared content on their personal YouTube channels, have generated over 450 million cumulative video views.
We will continue to expand our distribution of GoPro programming and the reach of the GoPro Network to new platforms such as Xbox Live. Our agreement with Microsoft provides us with access to advertising revenue streams and the ability to sell our capture devices directly to consumers as they are watching GoPro programming and, in exchange, Microsoft is entitled to receive a share of the revenues we generate from these activities. In addition, under the agreement, Microsoft will provide funds towards our development of the application through which Xbox Live will stream the GoPro Channel.
 
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Further, in 2014, we began providing Virgin America with content for a dedicated GoPro Channel available to passengers on Virgin America flights. We provide this content without charge.
What makes GoPro unique
By enabling the world to capture and share its passions, the world, in turn, has enabled GoPro to become one of the most exciting and aspirational companies of our time.
Category-defining self-capture devices
Our capture devices offer our customers, both consumers and professionals, exceptional capabilities that have earned us multiple awards, including a 2013 technical Emmy Award. Our cameras’ small, lightweight, yet durable designs make them easy to use even in highly challenging situations, and along with their affordable prices encourage adoption and experimentation that often leads to interesting content. In addition, our broad portfolio of mountable and wearable accessories enables multiple use cases and facilitates a differentiated self-capture experience than that of traditional cameras and smartphones.
Our products have been embraced by media professionals and are used in production by The Discovery Channel, ESPN and other networks. We believe this visible professional use of our capture devices further validates the quality of our products and appeal of our brand to consumers. We further believe we are increasingly lowering the barriers that separate professional from amateur capture.
Many of our customers purchase multiple units of our products. Unlike traditional cameras or smartphones, owning multiple GoPro capture devices enables our customers to capture their experiences from multiple perspectives simultaneously and create more interesting and professional-quality content.
 
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Professional media production team enhances product development
In addition to our core product development team, we leverage input from our in-house media production team to refine existing products and influence future product design. Our internal media production team regularly travels the world capturing GoPro originally produced content exclusively using our capture devices. We believe consistent use of our products and developmental feedback gives us a competitive advantage.
Passionate consumer- and content-supported business model
Our business model is supported by some of the world’s most active and influential consumers who use GoPro to capture and share their life experiences and interests. Their shared content excites and inspires others around the world to do the same, which we believe, leads to higher camera and accessory sales and, in turn, a massive volume of UGC. We believe this virtuous cycle, in which our customers’ content increases awareness of GoPro and demand for our products, is a meaningful differentiator for us.
Best-in-class marketing relationships
GoPro has established marketing relationships with more than 120 athletes, celebrities and entertainers, and sponsors more than 90 sporting events annually, including the X Games, Supercross and ASP world surfing championship events. We partner with athletes such as Olympic gold medal winning snowboarder Shaun White and 11-time world champion surfer Kelly Slater, as well as entertainers, such as Foo Fighters, Jane’s Addiction, Guy Fieri and Alton Brown, and producers of popular television shows. An increasing number of professionals are recognizing that GoPro allows them to capture performances in unique and compelling ways that engage and entertain their fans. This further validates our brand to consumers.
We also have promotional agreements with recreational destination resorts, such as all Vail Company resorts and the Whistler Blackcomb resort.
Validating the quality of our products and our growing role as a media brand, we are approached by professionals and organizations seeking to leverage GoPro as a media platform to distribute their own branded content captured with our products. For example, we regularly collaborate with Red Bull to capture content at Red Bull-sponsored events, which we then distribute across the GoPro Network to promote both Red Bull and its use of our products. Another example includes a production company wishing to promote an upcoming feature-length film by distributing trailers showcasing its film’s use of GoPro capture devices in production.
Differentiated sales strategy with specialty retailers
Since our first sale in 2004, our distribution strategy has focused on specialty retailers, including surf, ski and motorsports outlets, where we believe GoPro is often the only capture device sold. Our early, first-mover relationships with these retailers and their customers helped us establish a brand authenticity that remains a cornerstone of our business. This focus on the specialty retail channel has also enabled us to develop a high-touch, differentiated sales network of more than 25,000 stores globally that we believe is difficult to replicate.
Strong, global brand
Over the past 10 years, we have built a powerful brand that is emblematic of the pursuit and celebration of human passion. We believe consumers recognize GoPro as much for the experiential content sharing we enable as for the products we make.
 
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In defining the category of self-capture, GoPro has become a global standard. Our trademarks, “GoPro” and “Be a Hero,” are relevant and aspirational to consumers, as reflected in the variety of our customers’ shared content which spans from our roots in action sports to now include family, travel, music, science and other areas of human interest. The strength of our brand is further evidenced by our customers’ frequent tagging, titling and describing of their footage as “GoPro” content.
A company culture built around our vision
GoPro was founded by dedicated sports enthusiasts who wanted a better way to document and share their personal passions. As we have grown, we have remained focused on hiring employees who share this same ethos, whatever their personal interests may be. We have built a team focused on developing innovative solutions to the problems we encounter during our own self-capture pursuits, and we believe our employees’ shared passion, experience and vision represent an increasingly important competitive advantage.
Our strategy
We intend to expand our existing capture business and broaden our portfolio with content management, editing and sharing solutions to provide increased value to our customers, introduce new revenue streams and further differentiate us from competitors. Key components of our strategy include the following.
Continue to introduce innovative capture devices
We relentlessly pursue our goal of developing the world’s most versatile capture devices and enabling self-capture during any activity. To stay at the forefront of our industry, we are focused on continued product innovation and leadership. For example, we are developing custom sensor and digital signal processing technologies with our suppliers. Other areas of innovation include custom lens, audio, battery and accessory design. We may also leverage our brand strength and product expertise to opportunistically enter new device categories.
Develop seamless content management, editing and sharing solutions
We believe it is important to simplify the organizing, editing and sharing of engaging content and, to that end, we are developing an integrated content management platform. Our October 2013 acquisition of General Things, a web development firm, has provided us with additional software competencies to accelerate this process. Further, we may consider additional acquisitions of complementary technologies or businesses in the future. In addition, we may seek to leverage our content management platform as a new revenue stream.
Scale as a media brand
GoPro programming is a potent marketing tool which we believe, on its own, has significant value as a growing media asset. We are investing to scale GoPro as a media entity and develop new revenue opportunities by increasing production of GoPro originally produced content while simultaneously increasing the aggregation and redistribution of our customers’ “best of” UGC. Additionally, we are investing to develop, distribute and promote GoPro programming on additional partner platforms such as Virgin America and Xbox Live.
 
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Expand into new vertical markets
Leveraging the product development and sales and marketing strategies that have enabled us to be a leader in vertical markets such as skiing, surfing and motorsports, we are targeting new vertical markets including music and hunting and fishing. We continue to explore additional markets where we believe GoPro can authentically deliver meaningful solutions to consumers.
Grow internationally
We believe that international markets represent a significant growth opportunity for us. As of December 31, 2013, our products were sold in over 100 countries through more than 25,000 retail outlets. We plan to capitalize on the strength of our brand to increase our presence worldwide through additional retailers and strategic distribution partnerships.
Expand in-store brand and sales footprint
We invest heavily to produce GoPro-branded, video-enabled POP merchandising displays that we make available to nearly all of the retail outlets through which our products are sold. These displays showcase engaging GoPro content and attractively present our cameras and accessories. Having recognized our success in these stores, coupled with our expanding product portfolio, we are working with our retailers to further expand the footprint of our POP displays.
Extend strategic marketing relationships
We form relationships with marketing partners that use our products and services to promote their own brands and properties. For example, certain ASP world surfing championship events have used GoPro products to capture surfing competition from perspectives such as the surfer’s board and body, which enabled the ASP to provide its fans a more immersive and engaging viewing experience. Supercross similarly mounts GoPro capture devices to professional dirt bike racers’ helmets and uses the first-person perspectives to enhance its television broadcasts. As a result, GoPro benefits not only from the expanded brand awareness that traditionally comes with such marketing partnerships, but also being recognized as our partners’ technology enabler. We will continue developing and leveraging strategic marketing relationships to increase GoPro brand awareness.
Expand brand awareness through increased advertising
Notwithstanding the visibility we have garnered in the consumer markets where we have historically focused, we believe consumers in many other markets are not familiar with our brand and products. We believe this underscores a significant opportunity for GoPro to expand awareness through increased advertising on television, in print, online, and on billboards and other out of home advertising while continuing to scale our promotional marketing efforts and trade show presence.
Products
Cameras
Our core capture product is the HERO line of cameras, the first HD version of which we introduced in 2009. Since then, we have focused on continued innovation and development of our products and subsequently launched the HERO2 camera in 2011, the HERO3 camera in 2012 and the HERO3+ camera in 2013. Our HERO3+ cameras capture video and photos in a small,
 
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easy-to-use form factor. They come bundled with a protective waterproof housing and select mounting accessories and have built-in Wi-Fi, providing connectivity with a smartphone or tablet to enable remote control and content viewing and sharing functionality. We offer the HERO3 and HERO3+ cameras in White, Silver and Black editions that we position as a “good, better, best” product line with increasingly better image quality, enhanced capture features and accessory bundles from model to model at different price points. The following table shows the key features and specifications of our HERO3 and HERO3+ cameras:

We also sell accessories, both bundled and separately, that enhance the functionality and versatility of our cameras and enable our customers to self-capture their experiences during a variety of activities and from different viewpoints. In addition to our standard packages, we offer the HERO3+ Black edition camera in music- and surf-specific bundles, which each come packaged with accessories tailored for their respective markets.
Premium accessories
Our premium accessories include the Battery BacPac, Wi-Fi Remote and LCD Touch BacPac, which expand the features, versatility and convenience of our cameras.
 
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Mounts
We offer a large selection of mounts designed to enable consumers to capture content while engaged in a wide range of activities. This includes equipment-based mounts, such as the helmet, handlebar, roll bar and tripod mounts, as well as mounts that enable customers to wear the mount on their bodies, such as the wrist housing, chest harness and head strap. Most of our mounts are backward-compatible with our HERO, HERO2 and HERO3 cameras.
Other accessories
Other accessories include spare batteries, charging accessories, cables to connect our GoPro cameras to televisions and monitors, video transmitters, external microphones, flotation devices, dive filters, anti-fogging solutions and accessories for the Wi-Fi Remote.
The following table highlights select products in our accessories portfolio:

 
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We believe that providing software tools that help our customers manage, edit and share their GoPro content improves our value proposition and increases sales of our capture devices. We currently provide to consumers the following software applications at no charge:
GoPro Studio
GoPro Studio is a powerful video editing tool that allows our customers to create professional quality videos from their GoPro content. GoPro Studio includes GoPro Edit Templates, which are based on our own original video productions and enable our customers to quickly produce engaging, professional quality videos using their own footage. Additional features include easy playback and trimming of video clips, frame rate and image quality adjustments, conversion of time lapse photos into videos and the ability to export videos for convenient web sharing.

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GoPro App
The GoPro App allows customers to control their GoPro cameras remotely using a smartphone or tablet. Features include full control of all camera settings, content preview and playback directly from the camera on a smartphone or tablet, and access to GoPro’s Photo of the Day, Video of the Day and content feeds. The GoPro App enables customers to easily and wirelessly copy footage from their cameras to mobile devices for storage and sharing without a computer.

Research and development
We are passionate about developing new and innovative products that inspire our consumers and enhance our brand. We are constantly innovating to deliver better performance, expanded functionality and increased convenience to enhance the appeal of our products. Our capture devices have earned us multiple awards, including a 2013 technical Emmy Award. We also have teams focused on software application development to facilitate convenient content management, editing and sharing. We strive to remain a market leader by consistently introducing innovative products that offer superior performance at affordable price points.
We have a user experience-driven approach to product development and our Chief Executive Officer leads product design. By engaging with customers and opinion leaders in our core markets around the world, our development team strives to introduce meaningful and empowering new features that expand the versatility and performance of our products.
In addition to our core product development team, we benefit from input received from our in-house media production team that regularly travels the world capturing GoPro originally produced content exclusively using our capture devices. We believe leveraging this content team to help refine existing products and influence future products gives us a competitive advantage.
Our engineering team, which supports the development of our capture devices, firmware and software, has grown from two to 176 engineers from 2010 to 2013. Our engineering team is divided into two main groups. The architecture group is responsible for developing technologies
 
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to support the concepts proposed by our product team. These core technologies include new Image Silicon Processors, or ISPs, new image sensors and lenses, as well as the core algorithms that enable the systems to operate and provide the performance and features. The implementation group integrates these innovations from the architecture group into our products.
Part of our development strategy involves co-developing the most significant components of our cameras with a technology partner. To further these efforts, some of our partners have dedicated employees to support our research and development initiatives.
With our acquisition of CineForm, Inc. in 2011, we began to build capabilities in software applications. In October of 2013, we acquired General Things, a digital design and software studio based in San Francisco, California. Prior to the acquisition, General Things had been our strategic partner since 2010, and was instrumental in helping us advance our business back-end and consumer-facing web development. With the combination of these acquisitions and organic growth, the GoPro software team has grown to more than 72 employees developing desktop, mobile and web-based applications.
Our research and development expense was $8.6 million, $36.1 million, $73.7 million and $28.7 million for 2011, 2012, 2013 and the three months ended March 31, 2014, respectively.
Manufacturing, logistics and fulfillment
While our products are designed in California, we currently outsource manufacturing to two manufacturers, Chicony and Sky Light. Both manufacturers are located in Shenzhen, China. Our operations team includes managers based in San Mateo, California, Shenzen, China, and Hong Kong who coordinate with our manufacturers’ engineering, manufacturing and quality control personnel to develop the requisite test and manufacturing processes and oversee manufacturing activities. We believe that using outsourced manufacturing enables greater scale and flexibility than establishing our own manufacturing facilities. We periodically evaluate the need and advisability of adding manufacturers to support our operations.
Our relationships with our manufacturers have evolved over time from an original design manufacturer, or ODM, arrangement, in which the manufacturer provided the firmware and design support, to an arrangement in which we design the products and develop the strategic test processes and firmware ourselves. We believe this transition has allowed us more control over the performance and quality of our products.
To date, we have derived most of our revenue through products manufactured by Chicony, though we regularly assess our manufacturing options and engage new contract manufacturers where appropriate. Under our agreement with Chicony, we own all tooling and equipment that we fund, product designs and other deliverables that are produced in accordance with the agreement. The Chicony agreement has an initial three-year term that ends in August 2014, and automatically renews annually unless either party provides 90 days prior notice. Additionally, the agreement may be terminated by either party in the event of breach, Chicony is entitled to terminate if we fail to submit a purchase order during any three-month period and we are permitted to terminate for convenience upon providing 180 days prior written notice.
We have established a strategic commodity team that manages the pricing and supply of the key components of our capture devices, including sensors, digital signal processors and lenses. A few key strategic parts are purchased from the supplier by us and then consigned to our manufacturers,
 
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while the vast majority of parts are procured directly by our contract manufacturers. We seek to use our commodity team to achieve competitive pricing on the largest value-add components, and leverage our contract manufacturers’ volume purchases for best pricing on common parts.
We have third-party fulfillment centers in Riverside and Fremont, California, Singapore, Hong Kong and Venray, Netherlands. These facilities are either full service postponement centers (both light assembly and warehouse/fulfillment) or warehouse/fulfillment only centers. Cameras are typically air freighted while accessories and packaging are typically shipped via ocean freighter from our manufacturers in China to these fulfillment centers, where the products are packaged for retail sale. This postponement strategy allows us to reduce shipping costs, reduce custom levies, customize products for local languages and improve inventory flexibility.
Sales channels and customers
We sell our products through more than 25,000 retailers in over 100 countries directly and through distributors. We are focused on building close relationships with our retailers and distributors, educating our partners’ sales forces about our products, working with them to merchandise our products in a compelling manner in-store, as well as providing consumers with informative and convenient ecommerce experiences at retail partner websites.
Direct sales
We sell directly to large and small retailers in the United States, and directly to consumers around the world through our retail and ecommerce channels, as follows. In 2013 and the three months ended March 31, 2014, our direct sales channel accounted for 52% and 47% of our revenue, respectively.
 
Ÿ 	 	Independent specialty retailers     We use a network of location-based independent manufacturer representatives to sell our products to independent specialty retailers focused on action sports markets. Our representatives provide highly personalized service to these retailers, including assisting with product mix planning, channel marketing and in-store merchandising, taking orders and providing clinics to educate retail sales personnel about GoPro products. We also have an internal, regionally focused sales team that provides a secondary level of service to both the manufacturer representatives and the independent specialty retailers. Independent specialty retailers generally carry our higher end products, targeting their core customers who we believe tend to be early adopters of new technologies. Our sales efforts began in the specialty retail channel and we believe we continue to often be the only capture device sold in these types of stores. Independent specialty retailers outside of the United States represent a similarly important sales channel for us, and we reach these customers indirectly through our network of international distributors.	
 
Ÿ 	 	Big box retailers     We sell to large retailers with a national presence, including Amazon.com, Inc., Best Buy, Target Corporation and Wal-Mart, Inc. We support these retailers with a dedicated and experienced sales management team. We believe this enables us to build close relationships with these retailers and to reduce channel conflict. These retailers generally carry a varied subset of our products targeting their particular end-user customers. This helps us maintain in-store product differentiation between sales channels and protects our brand image in our core specialty retail markets. One retailer, Best Buy, accounted for 15%, 15%, 17% and 13% of our revenue in 2011, 2012, 2013 and the three months ended March 31, 2014, respectively.	
 
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Ÿ 	 	Mid-market retailers     We sell to retailers with a large regional or national presence, often focused on specific verticals such as consumer electronics, sporting goods, military, hunting and fishing and motor sports. We refer to these retailers as our “mid-market” channel, which includes Apple, Army & Air Force Exchange Service, B&H Foto & Electronics Corp., Cabela’s Inc., InMotion Entertainment, Recreation Equipment Inc. and The Sports Authority Inc. We sell directly to these retailers through our experienced sales teams assigned to particular accounts and regions. Mid-market retailers generally carry a smaller subset of our products targeted toward their end-user customers.	
 
Ÿ 	 	Ecommerce channel     We sell our full line of products directly to consumers around the world through our online store at GoPro.com. We drive consumers to our website through online and offline advertising, as well as marketing promotions carried out at tradeshows and sponsored events. Customers may also order over the phone.	
We manage our diverse channels by differentiating our products among the various retail channels. For example, certain big box retailers such as Target and Walmart only carry White and Silver edition capture devices while specialty retailers focus on Silver and Black editions. Additionally, we leverage club retailers such as Costco Wholesale Corporation to sell through legacy products in key selling seasons (spring and holiday), while expanding our sales reach to entry-level customers.
Distributors
We sell to over 50 distributors who resell our products to retailers in international markets and to certain specific verticals in the United States. All of our sales outside of the United States are generated through distributors who sell GoPro products to independent specialty retailers, mid-market retailers and big box retailers. In 2013 and the three months ended March 31, 2014, our distributors accounted for 48% and 53% of our revenue, respectively. In the three months ended March 31, 2014, one distributor, X-treme Video accounted for 10% of our revenue.
In the United States, our distributors sell into powersports, telecommunications, college bookstores and premium incentive markets. Our contracts with distributors generally have a term of one or two years and prohibit the distributors from selling competing products.
We have dedicated sales personnel focused on providing a high level of service to these distributors, including assisting with product mix planning, channel marketing and in-store merchandising, development of marketing materials, order assistance and educating the distributors’ sales personnel about GoPro products.
In-store merchandising
Our in-store merchandising strategy focuses on our POP displays that continuously show GoPro content and present our products in an attractive manner. We provide our POP display in sizes ranging from two to four feet wide by five feet tall to retailers at no cost. In larger stores we are test marketing POP displays that are 12 feet wide by seven feet tall. Our capture devices are attractively arranged on the displays and the breadth of our offerings, combined with the associated content, communicate the wide range of uses for our products. As of December 31, 2013, we had over 25,000 POP displays in retail outlets.
 
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Marketing and advertising
Our marketing and advertising programs are focused on engaging consumers by exposing them to compelling GoPro content. We believe this approach enhances our brand while demonstrating the performance, durability and versatility of our products. Our marketing and advertising efforts span a wide range of consumer interests and leverage both traditional consumer marketing and lifestyle marketing strategies.
Consumer marketing
Social media plays an important role in our consumer marketing strategy. Our customers capture and share personal GoPro content on social media and content sharing platforms like Facebook, Instagram, Twitter, Vimeo and YouTube.
We promote our customers’ “best of” UGC on the GoPro Network, such as through our Video of the Day and Photo of the Day. We also leverage our internal media production team to produce aspirational GoPro-branded content that we distribute through the GoPro Network.
We also integrate UGC and GoPro originally produced content into advertising campaigns across various platforms including television commercials, print, online, billboards and other out of home advertising, and at consumer and trade facing events. This content also supports our in-store channel marketing efforts, appearing on our POP displays and other in-store marketing materials.
Lifestyle marketing
Our lifestyle marketing programs focus on expanding GoPro brand awareness by engaging consumers through relationships with key influencers, event promotions and other customer outreach efforts. We cultivate strong relationships with influential athletes, celebrities, entertainers and brands, all of which use our products to create and share engaging content with their own fans and consumers. We also work directly with these partners to create compelling content that we leverage to our mutual benefit across the GoPro Network.
We believe it is important to establish ongoing, authentic relationships within the various markets that we address. We employ a team of lifestyle marketing managers who foster
 
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relationships within each of our markets and create marketing opportunities for our brand and deliver market feedback to our product development teams in order to refine existing products and influence future product design.
Consumer-facing events are another important aspect of our lifestyle marketing program. We regularly host product demonstrations in a GoPro-branded environment that we call the GoPro Experience. We host the GoPro Experience at over 90 consumer events such as the X Games, Supercross and film festivals, as well as at recreation destination resorts such as Vail Company resorts and the Whistler Blackcomb resort. The GoPro Experience increases brand awareness and builds personal relationships with consumers and key influencers. We distribute special coupons and promotions at many of these events, which drive consumers to our website and also help us measure the efficacy of our event marketing efforts. Below is a photo of the GoPro trade show booth.

Competition
The market for cameras and camcorders is highly competitive. We compete against established, well-known camera manufacturers such as Canon, Nikon, Olympus, Polaroid and Vivitar, large, diversified electronics companies such as JVC, Panasonic, Samsung, Sony and Toshiba, and specialty companies such as Garmin. Many of these companies have substantial market share, diversified product lines, well-established supply and distribution systems, strong worldwide brand recognition and significant financial, marketing, research and development and other resources.
We believe we compete favorably with these companies’ products. Our durable and versatile product design facilitates increased functionality and wearability. In addition, by offering a variety of mounts and other accessories, we enable a wide range of consumer use cases that are difficult for other competing products to address. Further, we offer many professional-grade
 
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features at attractive consumer price points, including our SuperView mode, which allows a user to capture an immersive wide-angle perspective, and super high resolution video capability. Moreover, we believe we have achieved significant brand recognition in our target vertical markets. We also believe our years of experience working with active and influential consumers contributes to our ability to develop attractive products and establishes the authenticity of our brand, thereby differentiating us from current and potential competitors.
Smartphones and tablets with photo and video functionality have significantly displaced traditional camera sales. We believe that our capture devices enable differentiated use cases from mobile devices. In particular, we allow consumers to self-capture their experiences in even the most challenging of environments, such as on and in water and in other environments where mobile devices would be damaged, and to do so with their hands free to focus on the activity and not the capture device. However, it is possible that in the future the manufacturers of these devices may design them for use in a range of scenarios and conditions. In addition new companies may emerge and offer competitive products directly in our category.
Intellectual property
Intellectual property is an important aspect of our business, and our practice is to seek protection for our intellectual property as appropriate.
Our trademarks, including “GoPro” and “Be a Hero,” are a critical component of the value of our business. In addition, we hold many issued and pending utility and design patents for various aspects of our capture devices and the software that helps our customers manage, share and enjoy their content. Our patents cover areas that include physical structures, image processing, operational firmware and software, post-processing software, distribution software, mount and accessory structures, as well as the ornamental aspects of our capture devices. As of the date of this filing, we had 42 issued patents and 68 patent applications pending in the United States, and 15 corresponding issued patents and 12 patent applications pending in foreign countries. We cannot be certain that our patent applications will be issued or that any issued patents will provide us with any competitive advantage or will not be challenged by third parties. Our issued U.S. patents will expire between 2024 and 2032 and our issued foreign patents will expire between 2022 and 2038. We continually review our developments efforts to assess the existence and patentability of new intellectual property.
In addition to the foregoing protections, we generally control access to and use of our proprietary and other confidential information through the use of internal and external controls, including contractual protections with employees, contract manufacturers, distributors and others. Despite these protections, we may be unable to prevent third parties from using our intellectual property without our authorization, breaching any nondisclosure agreements with us, or independently developing products that are similar to ours, particularly in those countries where the laws do not protect our proprietary and intellectual property rights as fully as in the United States.
Employees
As of December 31, 2011, 2012 and 2013 and March 31, 2014, we had 147, 347, 646 and 718 employees, respectively. In the United States, as of March 31, 2014, we had 661 employees, including 283 in research and development, 232 in sales and marketing, 31 in manufacturing/logistics/fulfillment and 115 in general and administrative. Additionally as of March 31, 2014, we had 44 employees supporting finance, product development and manufacturing from Shenzhen,
 
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China and Hong Kong. We opened our first European office in Munich, Germany in late 2013, and as of March 31, 2014 we had 13 employees based in that office. None of our employees is currently covered by a collective bargaining agreement, and we have experienced no work stoppages. We consider our relationship with our employees to be good.
Facilities
Our executive and administrative offices are located in San Mateo, California, where we lease approximately 200,000 square feet of space pursuant to several leases that expire at various schedules through February 2019. We also have other offices in California, Shenzhen, China, Hong Kong and Munich, Germany.
Legal proceedings
On December 5, 2012, e.Digital Corporation filed a lawsuit against us in the United States District Court for the Southern District of California which alleges infringement of United States Patent No. 5,742,737, or the ‘737 patent, entitled “Method for recording voice messages on flash memory in a hand held recorder,” by certain of our cameras. We answered the complaint on February 4, 2013, denying infringement and validity, and asserting counterclaims for declaratory judgment of non-infringement and invalidity. e.Digital filed an amended complaint on June 4, 2013, adding allegations that we infringe U.S. Patent No. 5,491,774, or the ’774 patent, entitled “Handheld Record and Playback Device with Flash Memory.” We answered the amended complaint on June 18, 2013, again denying infringement and validity, and asserting counterclaims for declaratory judgment of non-infringement and invalidity. e.Digital also sued a number of additional parties unrelated to us and our products asserting claims regarding the patents asserted against us and in some cases, two other patents.
We, along with a number of other defendants sued by e.Digital, moved to limit the scope of the ’774 patent based on collateral estoppel resulting from an unfavorable claim construction ruling e.Digital received in an earlier action. On August 22, 2013, the court granted defendants’ motion and held that e.Digital was collaterally estopped from re-litigating the claim construction of the ’774 patent. In light of that ruling, e.Digital agreed to stipulate to non-infringement of the ’774 patent. The parties entered into a partial stipulated judgment of non-infringement as to the ’774 patent, which was subsequently amended as a Federal Rule of Civil Procedure 54(b) judgment to allow an immediate appeal to the U.S. Court of Appeals for the Federal Circuit as to the Court’s collateral estoppel ruling. The remainder of the case has been stayed pending the appeal. Under the stay, the case against us will not proceed until the appeal is completed. If the district court’s collateral estoppel ruling is reversed on appeal, the case against us will proceed only as to the ’737 patent. e.Digital filed its appeal on January 15, 2014. On March 10, 2014, the U.S. Court of Appeals for the Federal Circuit consolidated the appeal with several other pending appeals involving other defendants. e.Digital filed its opening brief on April 9, 2014. Our responsive brief is due May 22, 2014.
We are currently and in the future may continue to be subject to litigation, claims and assertions incidental to our business, including patent infringement litigation and product liability claims, as well as other litigation of a non-material nature in the ordinary course of business. We believe that the outcome of any existing litigation, either individually or in the aggregate, will not have a material impact on our business, financial condition, results of operations or cash flows.
 
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 Management
Executive officers, other executive management and directors
The following table provides information regarding our executive officers, other executive management and directors as of March 31, 2014:

Name	  	Age	  	Position(s)	

Executive Officers	
			
Nicholas Woodman	  	38	  	Chief Executive Officer, President and Chairman	
			
Jack Lazar	  	48	  	Chief Financial Officer	
			
Nina Richardson	  	55	  	Chief Operating Officer	
			
Paul Crandell	  	45	  	Vice President of Marketing	
			
Sharon Zezima	  	49	  	General Counsel and Secretary	
	
Other Executive Management	
			
Fabrice Barbier	  	48	  	Senior Vice President of Product Development	
			
Stephen Baumer	  	41	  	Senior Vice President, Technology Fellow for Special Projects	
			
George “Jeff” Brown	  	55	  	Vice President of Communications	
			
Jonathan Harris	  	49	  	Senior Vice President of Sales	
			
Ronald LaValley	  	48	  	Senior Vice President of Operations	
	
Non-Employee Directors	
			
John Ball	  	51	  	Director	
			
Edward Gilhuly(1)(2)(3)	  	54	  	Director	
			
Kenneth Goldman(3)	  	64	  	Director	
			
Michael Marks(1)(2)†	  	63	  	Director	

†	 	Lead independent director.	
 
(1)	 	Member of the governance and nominating committee.	
 
(2)	 	Member of the compensation committee.	
 
(3)	 	Member of the audit committee.	
Executive officers
Nicholas Woodman founded our company and has served as our Chief Executive Officer, President and a member of the board of directors since inception and as Chairman since January 2014. Mr. Woodman holds a B.A. in Visual Arts from the University of California, San Diego. We believe Mr. Woodman’s experience as the founder of GoPro and his knowledge of our products and customers give him the experience and leadership capabilities that qualify him to serve as member of our board of directors.
Jack Lazar has served as our Chief Financial Officer since January 2014. From January 2013 to January 2014, he was an independent business and financial consultant. Mr. Lazar previously served as Senior Vice President, Corporate Development and General Manager of Qualcomm
 
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Atheros, Inc., a wireless technology company, from May 2011 to January 2013. From September 2003 until its acquisition by Qualcomm Incorporated, a digital wireless communications products and services, in May 2011, Mr. Lazar served as Chief Financial Officer and Secretary of Atheros Communications, Inc., a provider of communications semiconductor solutions, as well as other executive roles. From August 1999 to May 2002, Mr. Lazar served in a variety of positions at NetRatings, Inc., an Internet audience measurement and analysis company, most recently as Executive Vice President of Corporate Development, Chief Financial Officer and Secretary. He currently serves as a member of the board of directors at Silicon Laboratories Inc. Mr. Lazar is a Certified Public Accountant and holds a B.S. in Commerce with an emphasis in Accounting from Santa Clara University.
Nina Richardson has served as our Chief Operating Officer since February 2013. From March 2006 to January 2013, Ms. Richardson provided operations consulting and interim operations management services for a variety of companies as a self-employed independent consultant. From October 2008 to July 2009, Ms. Richardson was the Chief Administrative Officer of Riverwood Solutions, a supply chain solutions provider. From October 1999 to March 2005, Ms. Richardson held various executive positions at Flextronics International, Ltd., a manufacturing services company, including Vice President of Worldwide Design for Imaging and Printing, Vice President and Global Account Manager of the Hewlett Packard Account and Vice President and General Manager of Flextronics’ Cisco Business Unit. In November 2003, Ms. Richardson co-founded Three Rivers Energy, Inc., an energy services company, where she continues to serve as a managing director. Ms. Richardson holds a B.S. in Industrial Engineering from Purdue University and an Executive M.B.A. from Pepperdine University.
Paul Crandell has served as our Vice President of Marketing since August 2011. From January 2009 to August 2011, Mr. Crandell was the Co-founder of Q Sport Architects, a marketing consulting firm. From November 2007 to November 2008, Mr. Crandell was the Vice President of Marketing at ICON Aircraft, an aircraft design and production company. From November 1998 to October 2007, Mr. Crandell served in various positions at Red Bull North America, a beverage manufacturer, including as the Director of Sports Marketing from December 2005 to October 2007. Mr. Crandell holds a B.A. in Law and Society from the University of California, Santa Barbara.
Sharon Zezima has served as our General Counsel since September 2013 and as our Corporate Secretary since October 2013. From February 2012 to September 2013, Ms. Zezima was the Vice President and General Counsel at Marketo, Inc., a cloud-based marketing software company. Prior to joining Marketo, Ms. Zezima served in various positions at Electronic Arts Inc., a developer and distributor of interactive entertainment content and services, from September 2000 to February 2012, most recently as Vice President and Deputy General Counsel. Ms. Zezima holds a J.D. from the University of Chicago and an A.B. in American Studies from Smith College. 
Other executive management
Fabrice Barbier has served as our Senior Vice President of Product Development since May 2013, and served as our Vice President of Engineering from February 2011 to February 2013. From February 2009 to February 2011, Mr. Barbier was the Senior Director of Technology Touch and Display at Flextronics and from July 2007 to January 2009, he was its Senior Director of Product Management. Since 2006, Mr. Barbier has been a director of Barbier Ebelmann, a precision mechanics company. Mr. Barbier holds a B.S. in Mechanical Engineering and a Masters in Mechanical Engineering from Ecole Nationale Superieure de Mecanique et des Microtechniques.
Stephen Baumer has served as our Senior Vice President, Technology Fellow for Special Projects since May 2014, and served as our Chief Technology Officer since January 2009. From November
 
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2007 to January 2009, Mr. Baumer was the Head of Business Development in Europe for OpSource, Inc., an infrastructure provider for software-as-a-service companies. From October 2005 to October 2007, he was the Vice President of Marketing at PanTerra Networks, a developer of cloud-based unified communications solutions. From 2001 to 2004, Mr. Baumer was the Director of Technology at Intermix Media, Inc., an Internet-based marketing company that owned and developed MySpace until the company’s acquisition by News Corp. in 2005. From 1999 until 2001 he was the Chief Technology Officer and co-founder of funBug.com, Inc., an online gaming, rewards and loyalty service. Mr. Baumer holds a B.S. in Linguistics from Georgetown University.
George “Jeff” Brown has served as our Vice President of Communications since January 2014. From April 2010 to October 2013, Mr. Brown was the Senior Vice President of Communications and Public Affairs for Electronic Arts, where he was also the Vice President of Communications and Public Affairs from December 1999 to April 2010. Mr. Brown also served in a variety of roles at PepsiCo Inc., a food and beverage company, most recently as Director of Public Relations in December of 1999. Mr. Brown holds a B.A. in Journalism from the University of Minnesota.
Jonathan Harris has served as our Senior Vice President of Sales since January 2014, and served as our Vice President of Sales from June 2010 to January 2014. From February 2009 to June 2010, Mr. Harris was the Vice President of Business Development at SugarSync, Inc., a cloud-based document storage company. From January 2007 to February 2009, Mr. Harris was the Vice President of Sales at Aliph, Inc., a provider of wearable technology and audio devices. From October 2005 to May 2007, Mr. Harris was the Director of Sales at Check Point Software Technologies Ltd., an Internet security services provider. Mr. Harris holds a B.A. in Marketing from the Southern Methodist University.
Ronald LaValley has served as our Senior Vice President of Operations since December 2011. From 2000 to December 2011, Mr. LaValley served in various positions at Flextronics, including the Vice President of Logistics and Vice President of Supply Chain Solutions, and most recently as the Vice President and General Manager of the Milpitas Operations. Mr. LaValley holds a B.S. in Mechanical Engineering and Aeronautical Engineering from the University of California, Davis and an M.B.A. from Santa Clara University.
Board of directors
John Ball has served on our board of directors since December 2011. Mr. Ball is the Founder and has served as Managing Partner of Steamboat Ventures, a venture capital firm. Mr. Ball was a senior executive in the Corporate Development group for The Walt Disney Company, a family entertainment and media company, from June 1996 to September 2000 and served as Director of Mergers & Acquisitions at Dames & Moore, a global engineering services company, from September 1992 to June 1996. Mr. Ball holds a B.A. in Biological Sciences from Tufts University and an M.B.A. from Harvard Business School. We believe Mr. Ball is qualified to serve as a member of our board of directors based on his experience on the boards of directors of numerous companies and based on his extensive corporate management experience.
Edward Gilhuly has served on our board of directors since March 2011. Mr. Gilhuly is the Founder and has served as Managing Partner at Sageview Capital, a private investment firm since May 2006. Prior to forming Sageview Capital, Mr. Gilhuly worked for 19 years at Kohlberg Kravis Roberts & Co., a private equity firm, where he was a Partner from 1994 to 2005 and a member of the firm’s investment committee from its formation in 2000 until his departure in 2005. Mr. Gilhuly currently serves on the board of directors of Envivio, Inc. and two private companies
 
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as well as the board of trustees of Duke University. Mr. Gilhuly holds a B.A. in Economics and History from Duke University and an M.B.A. from Stanford University. We believe Mr. Gilhuly is qualified to serve as a member of our board of directors based on his experience on the boards of directors of numerous companies, his extensive corporate management experience and his significant experience in private equity and finance.
Kenneth Goldman has served on our board of directors since December 2013. Since October 2012, Mr. Goldman has served as the Chief Financial Officer of Yahoo! Inc., an Internet commerce website. From September 2007 to October 2012, he was Chief Financial Officer of Fortinet Inc., a provider of threat management technologies. From November 2006 to August 2007, Mr. Goldman served as Executive Vice President and Chief Financial Officer of Dexterra, Inc., a mobile enterprise software company. From August 2000 until March 2006, Mr. Goldman served as Senior Vice President of Finance and Administration and Chief Financial Officer of Siebel Systems, Inc., a supplier of customer software solutions and services. Mr. Goldman currently serves on the board of directors of NXP Semiconductor N.V., Gigamon Inc. and Yahoo! Japan, as well as the Trustee Emeritus of Cornell University. Mr. Goldman holds a B.A. in Electrical Engineering from Cornell University and an M.B.A. from Harvard Business School. We believe Mr. Goldman is qualified to serve as a member of our board of directors based on his experience on the boards of directors of numerous companies, his extensive executive experience and his service as a member of the Financial Accounting Standards Board Advisory Council. He provides a high level of expertise and significant leadership experience in the areas of finance, accounting and audit oversight.
Michael Marks has served on our board of directors since February 2011. Mr. Marks has been a Founding Partner of Riverwood Capital, LLC, a private equity firm, since March 2007. From August 2007 to November 2007, Mr. Marks was interim Chief Executive Officer of Tesla Motors, Inc., an electric vehicle designer and manufacturer. Mr. Marks was a senior adviser from January 2007 to January 2008 and a member from January 2006 to January 2007 at Kohlberg Kravis Roberts & Co., a private equity firm. From January 1994 to January 2006, Mr. Marks was Chief Executive Officer of Flextronics. Mr. Marks currently serves as a member of the board of directors of Schlumberger Limited and SanDisk Corporation, where he is currently Chairman. Mr. Marks holds a B.A. and an M.A. in Psychology from Oberlin College and an M.B.A. from Harvard Business School. We believe Mr. Marks is qualified to serve as a member of our board of directors based on his significant experience as the chief executive officer and member of the boards of directors of various companies, his expertise in financial and accounting matters and his expertise in private equity matters.
Board of directors
Pursuant to a voting agreement dated February 25, 2011, as amended, Messrs. Ball, Gilhuly, Goldman, Marks and Woodman were designated to serve as members of our board of directors. Messrs. Marks and Gilhuly were elected as the representatives of the Series A preferred stock, Messrs. Woodman and Goldman were elected by the holders of a majority of the shares of our common stock and Mr. Ball was elected by the holders of a majority of the shares of our preferred stock and common stock, voting together as a single class. The voting agreement will terminate upon the closing of this offering and none of our stockholders will have any special rights regarding the election or designation of members of our board of directors. Each of the current members of our board of directors, other than Mr. Ball, will continue to serve on our board of directors following the closing of the offering until the earlier of his or her resignation or his or her successor is duly elected or appointed. Mr. Ball has advised us of his intention to resign as a director upon the closing of this offering.
 
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In connection with the closing of this offering, we will file our restated certificate of incorporation. Although initially our board of directors will not be classified, our restated certificate of incorporation will provide that at such time as all shares of our Class B common stock have been converted into shares of Class A common stock, our board of directors will be divided into three classes, with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes of directors continuing for the remainder of their respective three-year terms.
In addition, our amended and restated bylaws and restated certificate of incorporation will provide that only the board of directors may fill vacancies on the board of directors until the next annual meeting of stockholders. After our board of directors is classified, any additional directorships resulting from an increase 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 total number of directors.
This classification of the board of directors and the provisions described above may have the effect of delaying or preventing changes in our control or management. See “Description of capital stock—Anti-takeover provisions—Restated certificate of incorporation and amended and restated bylaw provisions.”
Board leadership structure and risk oversight
Our board of directors does not have a policy on whether the role of the chairman and chief executive officer should be separate and believes that it should maintain flexibility to select a chairman and board leadership structure from time to time. Currently, the board of directors believes that it is in the best interest of the company and its stockholders for Mr. Woodman to serve in both roles given his knowledge of our company and industry. Because Mr. Woodman is our Chief Executive Officer and Chairman, our board of directors appointed Mr. Marks to serve as our lead independent director. As lead independent director, Mr. Marks will, among other responsibilities, preside over regularly scheduled meetings at which only our independent directors are present, serve as a liaison between the chairperson and the independent directors, and perform such additional duties as our board of directors may otherwise determine and delegate.
Our board of directors is primarily responsible for overseeing our risk management processes. Our board of directors, as a whole, determines the appropriate level of risk for our company, assesses the specific risks that we face and reviews management’s strategies for adequately mitigating and managing the identified risks. Although our board of directors administers this risk management oversight function, our audit committee, governance and nominating committee and compensation committee support our board of directors in discharging its oversight duties and address risks inherent in their respective areas. We believe this division of responsibilities is an effective approach for addressing the risks we face and that our board leadership structure supports this approach.
Director independence
Our board of directors has undertaken a review of the independence of each director and considered whether each director has a material relationship with us that could compromise his or her ability to exercise independent judgment in carrying out his or her responsibilities. As a result of this review, our board of directors determined that Messrs. Ball, Gilhuly, Goldman and Marks, representing four of our five directors, are “independent directors” as defined under the
 
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applicable rules and regulations of the SEC and the listing requirements and rules of the NASDAQ Stock Market. In making these determinations, our board of directors reviewed and discussed information provided by the directors and us with regard to each director’s business and personal activities and relationships as they may relate to us and our management, including the beneficial ownership of our capital stock by each non-employee director and the transactions involving them described in the section titled “Certain relationships and related party transactions.”
Committees of the board of directors
Our board of directors has established an audit committee, a compensation committee and a nominating and governance committee. The composition and responsibilities of each committee are described below. Immediately prior to the closing of this offering, copies of the charters for each committee will be available on the investor relations portion of our website at www.gopro.com. Members serve on these committees until their resignations or removal.
Audit committee
Our audit committee is comprised of Mr. Goldman, who serves as the chairman, and Mr. Gilhuly, each of whom, our board of directors has determined, meets the requirements for independence under the current rules of the SEC and the NASDAQ Stock Market. Each member of our audit committee is financially literate. In addition, our board of directors has determined that Mr. Goldman is an audit committee financial expert within the meaning of Item 407(d) of Regulation S-K of the Securities Act. We intend to appoint a third independent director to our audit committee within one year from the date of this prospectus pursuant to the transition provisions of the rules of the NASDAQ Stock Market.
All audit services to be provided to us and all permissible non-audit services, other than de minimis non-audit services, to be provided to us by our independent registered public accounting firm will be approved in advance by our audit committee. Our audit committee, among other things:
 
Ÿ 	 	selects a firm to serve as independent registered public accounting firm to audit our financial statements;	
 
Ÿ 	 	helps to ensure the independence of the independent registered public accounting firm;	
 
Ÿ 	 	discusses the scope and results of the audit with the independent registered public accounting firm, and reviews, with management and the independent accountants, our interim and year-end operating results;	
 
Ÿ 	 	develops procedures for employees to anonymously submit concerns about questionable accounting or audit matters;	
 
Ÿ 	 	considers the adequacy of our internal accounting controls and audit procedures; and	
 
Ÿ 	 	approves all audit and non-audit services to be performed by the independent registered public accounting firm.	
Compensation committee
Our compensation committee is comprised of Mr. Marks, who serves as the chairman, and Mr. Gilhuly. Our board of directors has determined that each member of our compensation
 
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committee meets the requirements for independence under the current rules of the NASDAQ Stock Market. The purpose of our compensation committee is to discharge the responsibilities of our board of directors relating to compensation of our executive officers. Our compensation committee, among other things:
 
Ÿ 	 	reviews and determines the compensation of our executive officers;	
 
Ÿ 	 	administers our stock and equity incentive plans;	
 
Ÿ 	 	reviews and makes recommendations to our board with respect to incentive compensation and equity plans; and	
 
Ÿ 	 	establishes and reviews general policies relating to compensation and benefits of our employees.	
Nominating and governance committee
The nominating and governance committee is comprised of Mr. Gilhuly, who serves as the chairman, and Mr. Marks. Our board of directors has determined that immediately prior to the effectiveness of this offering, the composition of our nominating and governance committee will meet the requirements for independence under the current rules of the NASDAQ Stock Market. Our nominating and governance committee, among other things:
 
Ÿ 	 	identifies, evaluates and recommends nominees to our board of directors and committees of our board of directors;	
 
Ÿ 	 	conducts searches for appropriate directors;	
 
Ÿ 	 	evaluates the performance of our board of directors and of individual directors;	
 
Ÿ 	 	considers and makes recommendations to the board of directors regarding the composition of the board and its committees and related compensation;	
 
Ÿ 	 	reviews related party transactions and proposed waivers of the code of conduct;	
 
Ÿ 	 	reviews developments in corporate governance practices;	
 
Ÿ 	 	evaluates the adequacy of our corporate governance practices and reporting; and	
 
Ÿ 	 	makes recommendations to our board of directors concerning corporate governance matters.	
Code of business conduct and ethics
In connection with this offering, we will adopt a code of business conduct and ethics that applies to all of our employees, officers and directors. Immediately prior to the effectiveness of this offering, the full text of our code of business conduct and ethics will be posted on the investor relations section of our website at www.gopro.com.
Compensation committee interlocks and insider participation
None of the members of our compensation committee has at any time been one of our officers or employees. None of our executive officers currently serves, or in the past has served, as a member of the board of directors or compensation committee (or other board committee
 
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performing equivalent functions) of any entity that has one or more of its executive officers serving on our board of directors or our compensation committee.
Director compensation
We have no formal policy relating to the granting of equity awards to our directors, however, the non-employee members of our board of directors who are not affiliated with our institutional investors generally receive stock option awards upon commencement of their service as directors. The following table presents the total compensation earned in the year ended December 31, 2013 for each non-employee member of our board of directors. Other than described below, we did not pay any fees to, reimburse any expenses of, make any equity awards or non-equity awards to, or pay any other compensation to the non-employee members of our board of directors. Nicholas Woodman, our Chief Executive Officer, received no compensation for his service as a director.
The following table provides information regarding compensation of our non-employee directors for 2013.

Name and principal position	  	Fees earned
or paid in
cash ($)	 	  	Option
awards ($)(1)(2)	 	  	All other
compensation ($)	 	  	Total ($)	 	
 	 	
Kenneth Goldman	  	$	            —	  	  	$	911,427	  	  	$	            —	  	  	$	911,427	  	
John Ball	  	 	—	  	  	 	—	  	  	 	—	  	  	 	—	  	
Edward Gilhuly	  	 	—	  	  	 	—	  	  	 	—	  	  	 	—	  	
Michael Marks	  	 	—	  	  	 	—	  	  	 	—	  	  	 	—	  	
Jill Woodman(3)	  	 	—	  	  	 	—	  	  	 	—	  	  	 	—	  	

 

(1)	 	The amounts reported in this column represent the aggregate grant date value of option awards made to directors in 2013 computed in accordance with FASB ASC Topic 718.	
 
(2)	 	The option vests as to 1/4 th of the shares of Class B common stock underlying the option on the first anniversary of the vesting commencement date and as to 1/48 th of the shares underlying the option each month thereafter. In addition, in the event of a qualified acquisition, the option shall vest as to an additional 1/4 th of the total shares underlying the option.	
 
(3)	 	Jill Woodman resigned as a member of our board of directors effective as of [                    ].	
We have not yet determined our director compensation arrangements to be in effect following the closing of this offering. However, in the near future we intend to develop a policy to provide customary compensation to our non-employee directors for their services in that capacity following the completion of this offering.
 
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 Executive compensation
2013 summary compensation table
The following table provides information regarding compensation received by our named executive officers for 2013.

Name and Principal Position	  	Salary
($)(1)	 	  	Bonus ($)(2)	 	  	Option
awards
($)(3)	 	  	All other
compensation
($)	 	 	Total ($)	 	
 	 	
Nicholas Woodman	  	$	800,000	  	  	$	1,003,200	  	  	$	—	  	  	$	49,591	(4) 	 	$	1,852,791	  	
Chief Executive Officer	  				  				  				  				 				
Nina Richardson	  	 	287,986	  	  	 	120,649	  	  	 	3,253,337	  	  	 	—	  	 	$	3,661,972	  	
Chief Operations Officer	  				  				  				  				 				
Paul Crandell	  	 	267,981	  	  	 	116,909	  	  	 	542,628	  	  	 	—	  	 	$	927,518	  	
Vice President, Marketing	  				  				  				  				 				

(1)	 	The amounts in this column include any salary contributed by the named executive officer to our 401(k) plan.	
 
(2)	 	The amounts reported in this column represent the named executive officer’s bonus awards, which we awarded on a discretionary basis based on the compensation committee’s determination of individual and overall company performance.	
 
(3)	 	The amounts reported in this column represent the aggregate grant date value of option awards made to the named executive officer in 2013 computed in accordance with FASB ASC Topic 718 and excluding the effect of estimated forfeitures.	
 
(4)	 	The amount reported in this column represents the cost of Mr. Woodman’s personal use of cars provided by us, including depreciation attributed to his personal use of the cars, maintenance and repair costs, insurance premiums and registration fees.	
Outstanding equity awards at December 31, 2013
The following table provides information regarding each unexercised stock option held by each of our named executive officers as of December 31, 2013.

   	  	Number of securities
underlying unexercised
options(1)	 	 	Option
exercise
price(2)	 	  	Option
expiration
date	 	
Name	  	Exercisable	 	  	Unexercisable	 	 			  			
 	 	
Nicholas Woodman	  	 	—	  	  	 	—	  	 	 	—	  	  	 	—	  	
Nina Richardson	  	 	0	  	  	 	450,000	(3) 	 	$	13.7200	  	  	 	02/18/2023	  	
Paul Crandell	  	 	171,700	  	  	 	125,000	  	 	$	1.5167	  	  	 	10/25/2021	  	
Paul Crandell	  	 	0	  	  	 	75,000	  	 	$	13.7200	  	  	 	02/18/2023	  	

(1)	 	Except as otherwise described in these footnotes, all options vest as to 1/4 th of the shares of Class B common stock underlying the options on the first anniversary of the vesting commencement date and as to 1/48 th of the shares underlying the option each month thereafter. The vesting commencement date for Ms. Richardson’s option grant is February 12, 2013 and the vesting commencement date for Mr. Crandell’s option grants are August 15, 2011 and February 19, 2013, respectively. Any options exercised prior to their vesting date would be subject to forfeiture as specified in the 2010 Plan. In addition, if the executive is subject to a qualified termination in connection with a change in control, then the shares underlying any unvested equity award shall vest immediately prior to the termination of the executive, pursuant to the severance and change in control policy adopted in January 2014 (described below).	
 
(2)	 	Represents the fair market value of a share of our Class B common stock, as determined by our board of directors, on the grant date. See the section titled “Management’s discussion and analysis of financial condition and results of operations—Critical accounting policies and estimates—Stock-based compensation” for a discussion of the valuation of our Class B common stock.	
 
(3)	 	In addition to the time-based vesting indicated in footnote (1), if we achieve the goals approved by our board of directors under our 2014 Operating Plan, then an additional 25,000 of the shares will become vested and exercisable on February 12, 2015.	
Pension benefits
None of our named executive officers is a participant in any defined benefit plans.
 
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Nonqualified deferred compensation
We do not offer any nonqualified deferred compensation plans.
Employment, severance and change in control agreements
Nina Richardson
In February 2013, we entered into an offer letter with Nina Richardson for her services as our Chief Operating Officer. The offer letter provided that Ms. Richardson’s option to purchase 450,000 shares of Class B common stock would vest 25% on the 12 month anniversary of her commencement of employment and in equal monthly installments over the 36 months thereafter subject to her continuous service. In addition, the offer letter provides that 25,000 option shares would vest on the two-year anniversary of her commencement of employment in the event that we achieve our 2014 Operating Plan as approved and certified by our board of directors subject to her continuous service. In addition, the offer letter provides that in the event of a qualified termination within 12 months following a change of control, Ms. Richardson’s stock option would receive 12 months of accelerated vesting. Subsequent to the execution of the offer letter, we entered into a Change in Control Severance Agreement with Ms. Richardson. The terms of the Change in Control Severance Agreement are described in detail below and it provides that in the event of a qualified termination following a change of control, Ms. Richardson shall be entitled to acceleration in full of all of her unvested option shares.
Paul Crandell
In July 2011, we entered into an offer letter with Paul Crandell for his services as Vice President, Brand Marketing. The offer letter provided that Mr. Crandell’s option to purchase 300,000 shares of Class B common stock would be subject to the terms and conditions applicable to options granted under the 2010 Plan, as described in the 2010 Plan, and the applicable stock option agreement made available to Mr. Crandell at the time of his grant. Subsequent to the execution of the offer letter, we entered into a Change in Control Severance Agreement with Mr. Crandell. The terms of the Change in Control Severance Agreement are described in detail below and it provides that in the event of a qualified termination following a change of control, Mr. Crandell shall be entitled to acceleration in full of all of his outstanding unvested option shares.
Potential payments upon termination or change in control
In January 2014, we adopted a severance and change in control policy applicable to our executive officers and certain other employees pursuant to which each executive officer entered into a severance agreement. The severance agreement with each of our named executive officers has a term ending December 31, 2016 with automatic three-year renewals unless we give at least three months notice of non-renewal and requires us to pay certain benefits upon a qualifying termination, which occurs when the employee’s employment is terminated by us without cause, or he or she resigns with good reason, within three months preceding or 12 months following a change in control. Under his agreement, Mr. Woodman would be eligible for severance benefits of 18 months of his then-current base pay, 150% of the greater of his target bonus or his most recent annual bonus, and $3,000 per month for 18 months in lieu of employee benefits upon a qualifying termination. Under her or his respective agreement, each of Ms. Richardson and Mr. Crandell would be eligible for severance benefits of 12 months of then-current base pay, 100% of her or his target bonus or, if greater, her or his most recent annual bonus, and $3,000 per month for 12 months in lieu of employee benefits upon a qualifying termination.
 
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In addition, upon a qualifying termination of Ms. Richardson or Mr. Crandell, the shares underlying all unvested equity awards held by such officer will become vested and exercisable in full immediately prior to such termination. The severance payments under the change of control severance agreements with each of our executive officers are contingent upon such executive officer’s execution, delivery and non-revocation of a release and waiver of claims satisfactory to us within 45 days of such executive officer’s separation from service.
Employee benefit plans
2010 equity incentive plan
Our board of directors approved, and our stockholders adopted, our 2010 Plan in August 2010. Our 2010 Plan provides for the grant of incentive stock options, within the meaning of Section 422 of the Code, to our employees or any parent or subsidiary’s employees, and for the grant of nonstatutory stock options, stock appreciation rights, restricted stock and RSUs to our employees, directors and consultants and any parent or subsidiary’s employees and consultants. Stock appreciation rights, restricted stock and RSUs may also be granted under the 2010 Plan. As of December 31, 2013, an aggregate of 32,420,000 shares of our Class B common stock are reserved for issuance under our 2010 Plan. Upon the signing of the underwriting agreement relating to this offering, no further equity grants will be made under our 2010 Plan. We intend to grant all future equity awards under the 2014 Plan and the ESPP. However, all stock options and RSUs granted under our 2010 Plan will continue to be governed by the terms of our 2010 Plan. The purposes of the 2010 Plan are to attract, retain and motivate eligible persons whose present and potential contributions are important to our growth by offering such eligible persons an opportunity to participate in our future performance through the grant of awards.
Administration .    Subject to the terms of the 2010 Plan, our board of directors or an authorized committee, referred to as the compensation committee, has the discretion to make all decisions implementing the 2010 Plan including the power to determine recipients, dates of grant, the numbers and types of stock awards to be granted and the terms and conditions of the stock awards, including the period of their exercisability and vesting. Subject to the limitations set forth below, the compensation committee will also determine the exercise price of options granted, and the consideration (if any) to be paid for restricted stock awards.
Stock options .    Incentive and nonstatutory stock options are granted pursuant to stock option agreements adopted by the compensation committee. Generally, the exercise price for an incentive stock option or a nonstatutory stock option cannot be less than 100% of the fair market value of the Class B common stock subject to the option on the date of grant. No incentive stock option may be granted to any person who, at the time of the grant, owns or is deemed to own stock comprising more than 10% of our total combined voting power or that of any of our affiliates unless (a) the option exercise price is at least 110% of the fair market value of the stock subject to the option on the date of grant and (b) the term of the incentive stock option does not exceed five years from the date of grant. Options granted under the 2010 Plan generally vest over a four-year period. A stock option agreement may provide for early exercise prior to vesting and rights of repurchase.
The term of stock options granted under the 2010 Plan may not exceed 10 years. Unless the terms of an optionholder’s stock option agreement provides for earlier or later termination, if an optionholder’s service relationship with us, or any affiliate of ours, ceases due to disability or death, the optionholder, or his or her beneficiary, may exercise any vested options up to the
 
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12 months after the date the service relationship ends. Unless the terms of an optionholders’ stock option agreement provides for earlier or later termination, if an optionholder’s service relationship with us, or any affiliate of ours, ceases without cause for any reason other than disability or death, the optionholder may exercise any vested options for up to three months. In no event may an option be exercised after its expiration date.
The forms of consideration for the purchase of our Class B common stock under the 2010 Plan that the compensation committee may approve include cash, check, full recourse promissory note, cancellation of indebtedness, waiver of accrued compensation, shares of stock already owned, consideration paid through a formal cashless exercise program or same day sale program, any other form of consideration approved by the compensation committee or any combination of such consideration.
Limitations .    The aggregate fair market value, determined at the time of grant, of shares of our Class B common stock with respect to incentive stock options that are exercisable for the first time by an optionholder during any calendar year under all of our stock plans may not exceed $100,000. The options or portions of options that exceed this limit are treated as nonstatutory stock options.
Stock appreciation rights .    Our 2010 Plan also permits the issuance of stock appreciation rights that provide for a payment, or payments, in cash or shares of our Class B common stock, to the holder based upon the increase in the fair market value of our Class B common stock on the date of exercise from the stated exercise price (subject to any maximum number of shares as may be specified in the applicable award agreement). Stock appreciation rights expire under the same rules that apply to stock options.
Restricted stock.     Our 2010 Plan also permits the issuance of restricted stock. Restricted stock represents the purchase of our Class B common stock that is subject to our right of repurchase in the event of a termination of the stockholder’s service relationship with us.
Restricted stock units .    Our 2010 Plan also permits the issuance of restricted stock units, or RSUs, to our service providers. RSUs granted under our 2010 Plan represent the right to receive shares of our Class B common stock or cash payment at a specified future date and may be subject to vesting requirements.
Transferability .    Unless the compensation committee permits otherwise, stock may not be transferred, except by will or by the laws of descent or distribution. However, nonstatutory stock options may be transferred to immediate family members or certain trusts.
Changes to capitalization .    In the event that there is a specified type of change in our capital structure not involving the receipt of consideration by us, such as a stock split, stock dividend or other recapitalization, the 2010 Plan provides for the proportional adjustment of the number of shares reserved under the 2010 Plan and the number of shares and exercise or purchase price, if applicable, of all outstanding stock awards.
Corporate transactions .    Unless otherwise provided in the award agreement, in the event of certain corporate transactions, any or all outstanding stock awards under the 2010 Plan may be assumed or substituted for by any surviving entity. If the surviving entity elects not to assume or substitute for such awards, such stock awards will terminate without vesting acceleration. In the event of our dissolution or liquidation, all outstanding options and stock appreciation rights under the 2010 Plan will terminate immediately prior to such event without accelerating vesting.
 
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Additional provisions .    Our board of directors has the authority to amend, alter, suspend or terminate the 2010 Plan. However, no amendment or termination of the plan may adversely affect any rights under awards already granted to a participant without the affected participant’s consent. No equity awards will be made under the 2010 Plan after the effective date of this offering and our 2014 Plan.
2014 equity incentive plan
We expect our board of directors to adopt our 2014 Plan, subject to stockholder approval, to become effective the day before the effective date of this prospectus. The 2014 Plan will terminate in 2024, unless sooner terminated by our board of directors. The purpose of the 2014 Plan is to attract, retain and motivate selected employees, consultants and directors through the granting of stock-based compensation awards and cash-based performance bonus awards. The 2014 Plan is also designed to permit us to make cash-based awards and equity-based awards intended to qualify as “performance-based compensation” under Section 162(m) of the Code.
Stock awards .    The 2014 Plan provides for the grant of incentive stock options, nonstatutory stock options, stock appreciation rights, restricted stock awards, RSUs, performance-based stock awards and other forms of equity compensation, or collectively, stock awards. In addition, the 2014 Plan provides for the grant of performance cash awards. Incentive stock options may be granted only to employees, subject to certain limitation described below. All other awards may be granted to employees, including officers, as well as directors and consultants.
The principal features of the 2014 Plan are summarized below. This summary is qualified in its entirety by reference to the text of the 2014 Plan, which is filed as an exhibit to the registration statement of which this prospectus is a part.
Share reserve.     We reserved              shares of our Class A common stock to be issued under our 2014 Plan. The number of shares reserved for issuance under our 2014 Plan will increase automatically on January 1 of each of our fiscal years beginning January 1, 2015 through the termination of the plan by the number of shares equal to 3% of the total outstanding shares of our Class A common stock as of the immediately preceding December 31. However, our board of directors or compensation committee may reduce the amount of the increase in any particular year. In addition, shares reserved but not issued or subject to outstanding grants under our 2010 Plan on the date of this prospectus will be available for grant and issuance under our 2014 Plan as Class A common stock and the following shares will again be available for grant and issuance under our 2014 Plan as Class A common stock:
 
Ÿ 	 	shares subject to options or stock appreciation rights granted under our 2014 Plan that cease to be subject to the option or stock appreciation right for any reason other than exercise of the option or stock appreciation right;	
 
Ÿ 	 	shares subject to awards granted under our 2014 Plan that are subsequently forfeited or repurchased by us at the original issue price;	
 
Ÿ 	 	shares subject to awards granted under our 2014 Plan that otherwise terminate without shares being issued;	
 
Ÿ 	 	shares surrendered, cancelled, or exchanged for cash or a different award (or combination thereof);	
 
Ÿ 	 	shares issuable upon the exercise of options or subject to other awards under our 2010 Plan prior to the date of this prospectus that cease to be subject to such options or other awards by forfeiture or otherwise after the date of this prospectus;	
 
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Ÿ 	 	shares issued under our 2010 Plan that are forfeited or repurchased by us after the date of this prospectus; and	
 
Ÿ 	 	shares subject to awards under our 2010 Plan that are used to pay the exercise price of an option or withheld to satisfy the tax withholding obligations related to any award.	
As of the date hereof, no shares of our Class A common stock have been issued under the 2014 Plan. No person may be granted stock awards covering more than 500,000 shares of our Class A common stock under the 2014 Plan during any calendar year pursuant to stock options or stock appreciation rights other than a new employee of ours, who will be eligible to receive no more than 1,000,000 shares of our Class A common stock under the 2014 Plan in the calendar year in which the employee commences employment. Such limitations are designed to help assure that any deductions to which we would otherwise be entitled with respect to such stock awards will not be subject to the $1,000,000 limitation on the income tax deductibility of compensation paid per covered executive officer imposed by Section 162(m) of the Code.
Administration .    Our 2014 Plan will be administered by our compensation committee, all of the members of which are outside directors as defined under applicable federal tax laws, or by our board of directors acting in place of our compensation committee. The compensation committee will have the authority to construe and interpret our 2014 Plan, grant awards and make all other determinations necessary or advisable for the administration of the plan.
The compensation committee has the authority to reprice any outstanding stock award (by reducing the exercise price of any outstanding option, canceling an option in exchange for cash or another equity award or any other action that may be deemed a repricing under generally accepted accounting provisions) under the 2014 Plan without the approval of our stockholders.
Stock options .    Incentive and nonstatutory stock options are granted pursuant to incentive and nonstatutory stock option agreements adopted by the compensation committee. The compensation committee determines the exercise price for a stock option, within the terms and conditions of the 2014 Plan, provided that the exercise price of a stock option cannot be less than 100% of the fair market value of our Class A common stock on the date of grant, except where a higher exercise price is required in the case of certain incentive stock options, as described below.
We anticipate that in general, options will vest over a four-year period. Options may vest based on time or achievement of performance conditions. Our compensation committee may provide for options to be exercised only as they vest or to be immediately exercisable with any shares issued on exercise being subject to our right of repurchase that lapses as the shares vest. The maximum term of options granted under our 2014 Plan is 10 years. The compensation committee determines the term of stock options granted under the 2014 Plan, up to a maximum of 10 years, except in the case of certain incentive stock options, as described below. Unless the terms of an optionholder’s stock option agreement provide otherwise, if an optionholder’s relationship with us, or any of our affiliates, ceases for any reason other than for cause, disability or death, the optionholder may exercise any vested options for a period of three months following the cessation of service. If an optionholder’s service relationship with us is terminated for cause, then the option terminates immediately. If an optionholder’s service relationship with us or any of our affiliates ceases due to disability or death, or an optionholder dies within the period (if any) specified in the award agreement following cessation of service, the optionholder or a beneficiary may exercise any vested options for a period of at least six months in the event of disability or death. The option term may be extended in the event that exercise of the option
 
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following termination of service is prohibited by applicable securities laws. In no event, however, may an option be exercised beyond the expiration of its maximum term.
Acceptable consideration for the purchase of Class A common stock issued upon the exercise of a stock option will be determined by the compensation committee and may include (a) cash, check, bank draft or money order, (b) a broker-assisted cashless exercise, (c) the tender of Class A common stock or Class B common stock previously owned by the optionholder, (d) cancellation of our indebtedness to the optionholder, (e) waiver of compensation due to the optionholder for services rendered and (f) other legal consideration approved by the compensation committee.
Unless the compensation committee provides otherwise, options generally are not transferable except by will, the laws of descent and distribution, or pursuant to a domestic relations order. An optionholder may, however, designate a beneficiary who may exercise the option following the optionholder’s death.
Limitations on incentive stock options .    Incentive stock options may be granted only to our employees. The aggregate fair market value, determined at the time of grant, of shares of our Class A common stock with respect to incentive stock options that are exercisable for the first time by an optionholder during any calendar year under all of our stock plans may not exceed $100,000. No incentive stock option may be granted to any person who, at the time of the grant, owns or is deemed to own stock comprising more than 10% of our total combined voting power or that of any of our affiliates unless (a) the option exercise price is at least 110% of the fair market value of the stock subject to the option on the date of grant and (b) the term of the incentive stock option does not exceed five years from the date of grant.
Restricted stock awards .    Restricted stock awards are granted pursuant to restricted stock award agreements adopted by our compensation committee. A restricted stock award is an offer by us to sell shares of our Class A common stock subject to restrictions. The price, if any, of a restricted stock award will be determined by our compensation committee. Restricted stock awards may be granted in consideration for (a) cash, check, bank draft or money order, (b) past or future services rendered to us or our affiliates, or (c) any other form of legal consideration determined by the compensation committee. Shares of Class A common stock acquired under a restricted stock award may, but need not, be subject to a share repurchase option or forfeiture restriction in our favor in accordance with a vesting schedule to be determined by the compensation committee. Rights to acquire shares under a restricted stock award may be transferred only upon such terms and conditions as set by the compensation committee. Except as otherwise provided in the applicable award agreement, restricted stock awards that have not vested will be forfeited or subject to repurchase upon the participant’s cessation of continuous service for any reason.
Restricted stock unit awards .    RSU awards are granted pursuant to restricted stock unit award agreements adopted by our compensation committee. RSUs represent the right to receive shares of our Class A common stock at a specified date in the future, subject to forfeiture of that right because of termination of the holder’s services to us or the holder’s failure to achieve certain performance conditions. If a RSU has not been forfeited, then on the date specified in the RSU agreement, we may deliver to the holder of the RSU whole shares of our Class A common stock, which may be subject to additional restrictions, cash or a combination of our Class A common stock and cash. Our compensation committee may also permit the holders of the RSUs to defer payment to a date or dates after the RSU is earned, provided that the terms of the RSU and any deferral satisfy the requirements of Section 409A of the Code.
 
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Stock appreciation rights .    Stock appreciation rights are granted pursuant to stock appreciation rights agreements adopted by the compensation committee. Stock appreciation rights provide for a payment, or payments, in cash or shares of our Class A common stock, to the holder based upon the increase in the fair market value of our Class A common stock on the date of exercise from the stated exercise price (subject to any maximum number of shares as may be specified in the applicable award agreement). The payment may occur upon the exercise of a stock appreciation right or deferred with such interest or dividend equivalent, if any, as our compensation committee determines, provided that the terms of the stock appreciation right and any deferral satisfy the requirements of Section 409A of the Code. The compensation committee determines the exercise price for a stock appreciation right which generally cannot be less than 100% of the fair market value of our Class A common stock on the date of grant. Stock appreciation rights may vest based on time or achievement of performance conditions. Stock appreciation rights expire under the same rules that apply to stock options.
Performance awards .    The 2014 Plan permits the grant of performance stock awards and performance cash awards that may qualify as performance-based compensation that is not subject to the $1,000,000 limitation on the income tax deductibility of compensation paid per covered executive officer imposed by Section 162(m) of the Code. To assure that the compensation attributable to performance-based awards will so qualify, our committee can structure such awards so that stock will be issued or paid pursuant to such award only upon the achievement of certain pre-established performance goals during a designated performance period. The maximum benefit that may be granted to a participant in any calendar year may not exceed $1,000,000.
Other stock awards .    Our compensation committee may grant other awards based in whole or in part by reference to our Class A common stock. The compensation committee will set the number of shares under the award and all other terms and conditions of such awards.
Changes to capital structure .    In the event that there is a specified type of change in our capital structure, such as a stock split, appropriate adjustments will be made to (a) the class and maximum number of shares reserved under the 2014 Plan, (b) the class and maximum number of shares subject to options, stock appreciation rights and performance stock awards that can be granted in a calendar year, (c) the class and maximum number of shares that may be issued upon exercise of incentive stock options, (d) the maximum number of shares that may be awarded to a member of our board of directors, and (e) the number of shares and exercise price, if applicable, of all outstanding stock awards.
Corporate transactions .    The 2014 Plan provides that, in the event of a sale, lease or other disposition of all or substantially all of the assets of us or specified types of mergers or consolidations (each, a “corporate transaction”), outstanding awards under our 2014 Plan may be assumed or replaced by any surviving or acquiring corporation; the surviving or acquiring corporation may substitute similar awards for those outstanding under the 2014 Plan; outstanding awards may be settled for the full value of such outstanding award (whether or not then vested or exercisable) in cash or securities of the successor entity with payment deferred until the date or dates the award would have become exercisable or vested; or outstanding awards may be terminated for no consideration. Our board of directors has the discretion to provide that a stock award under the 2014 Plan will immediately vest as to all or any portion of the shares subject to the stock award at the time of a corporate transaction or in the event a participant’s service with us or a successor entity is terminated actually or constructively within a designated period following the occurrence of the transaction. Stock awards held by participants
 
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under the 2014 Plan will not vest automatically on such an accelerated basis unless specifically provided in the participant’s applicable award agreement.
Plan suspension or termination .    Our board of directors has the authority to suspend or terminate the 2014 Plan at any time provided that such action does not impair the existing rights of any participant.
Securities laws and federal income taxes .    The 2014 Plan is designed to comply with various securities and federal tax laws as follows:
 
Ÿ 	 	Securities laws .    The 2014 Plan is intended to conform to all provisions of the Securities Act of 1933, as amended, and the Exchange Act and any and all regulations and rules promulgated by the SEC thereunder, including, without limitation, Rule 16b-3. The 2014 Plan will be administered, and options will be granted and may be exercised, only in such a manner as to conform to such laws, rules and regulations.	
 
Ÿ 	 	Section 409A of the Code .    Certain awards under the 2014 Plan may be considered “nonqualified deferred compensation” for purposes of Section 409A of the Code, which imposes certain additional requirements regarding the payment of deferred compensation. Generally, if at any time during a taxable year a nonqualified deferred compensation plan fails to meet the requirements of Section 409A, or is not operated in accordance with those requirements, all amounts deferred under the 2014 Plan and all other equity incentive plans for the taxable year and all preceding taxable years, by any participant with respect to whom the failure relates, are includible in gross income for the taxable year to the extent not subject to a substantial risk of forfeiture and not previously included in gross income. If a deferred amount is required to be included in income under Section 409A, the amount also is subject to interest and an additional income tax. The interest imposed is equal to the interest at the underpayment rate plus one percentage point, imposed on the underpayments that would have occurred had the compensation been includible in income for the taxable year when first deferred, or if later, when not subject to a substantial risk of forfeiture. The additional federal income tax is equal to 20% of the compensation required to be included in gross income. In addition, certain states, including California, have laws similar to Section 409A, which impose additional state penalty taxes on such compensation.	
 
Ÿ 	 	Section 162(m) of the Code .    In general, under Section 162(m) of the Code, income tax deductions of publicly held corporations may be limited to the extent total compensation (including, but not limited to, base salary, annual bonus, and income attributable to stock option exercises and other non-qualified benefits) for certain executive officers exceeds $1,000,000 (less the amount of any “excess parachute payments” as defined in Section 280G of the Code) in any taxable year of the corporation. However, under Section 162(m), the deduction limit does not apply to certain “performance-based compensation” established by an independent compensation committee that is adequately disclosed to, and approved by, stockholders. In particular, stock options and stock appreciation rights will satisfy the “performance-based compensation” exception if the awards are made by a qualifying compensation committee, the 2014 Plan sets the maximum number of shares that can be granted to any person within a specified period and the compensation is based solely on an increase in the stock price after the grant date. Specifically, the option exercise price must be equal to or greater than the fair market value of the stock subject to the award on the grant date.	
We have attempted to structure the 2014 Plan in such a manner that the compensation attributable to stock options, stock appreciation rights and other performance-based awards which meet the
 
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other requirements of Section 162(m) will not be subject to the $1,000,000 limitation. We have not, however, requested a ruling from the IRS or an opinion of counsel regarding this issue.
2014 employee stock purchase plan
We expect our board of directors to adopt our ESPP, subject to stockholder approval, to become effective upon the effectiveness of this offering. The purpose of the ESPP is to assist us in retaining the services of new employees and securing the services of new and existing employees while providing incentives for such individuals to exert maximum efforts toward our success.
Share reserve .    Following this offering, the ESPP authorizes the issuance of                  shares of our Class A common stock pursuant to purchase rights granted to our employees or to employees of our subsidiaries. The number of shares of our Class A common stock reserved for issuance will automatically increase on January 1 of each calendar year, from January 1, 2015 through January 1, 2024, by the lesser of 1% of the total number of shares of our Class A common stock outstanding on December 31 of the preceding calendar year or a number determined by our board of directors. The ESPP is intended to qualify as an “employee stock purchase plan” within the meaning of Section 423 of the Code. As of the date hereof, no shares of our Class A common stock have been purchased under the ESPP. No more than                  shares of our Class A common stock may be issued under our ESPP, and no other shares may be added to this plan without the approval of our stockholders.
Administration .    Our board of directors has delegated its authority to administer the ESPP to our compensation committee. The ESPP is implemented through a series of offerings of purchase rights to eligible employees. Under the ESPP, we may specify offerings with durations of not more than 27 months, and may specify shorter purchase periods within each offering. Each offering will have one or more purchase dates on which not more than 2,500 shares of our Class A common stock will be purchased for employees participating in the offering. An offering may be terminated under certain circumstances.
Payroll deductions .    Generally, all regular employees, including executive officers, employed by us or by any of our designated affiliates, may participate in the ESPP and may contribute, normally through payroll deductions, up to 15% of their earnings for the purchase of our Class A common stock under the ESPP. Unless otherwise determined by our board of directors, Class A common stock will be purchased for accounts of employees participating in the ESPP at a price per share equal to the lower of (a) 85% of the fair market value of a share of our Class A common stock on the first date of an offering or (b) 85% of the fair market value of a share of our Class A common stock on the date of purchase.
Limitations .    Employees may have to satisfy one or more of the following service requirements before participating in the ESPP, as determined by our board of directors: (a) customarily employed for more than 20 hours per week, (b) customarily employed for more than five months per calendar year or (c) continuous employment with us or one of our affiliates for a period of time not to exceed two years. No holder will have the right to purchase our shares at a rate which, when aggregated with purchase rights under all our employee stock purchase plans that are also outstanding in the same calendar year(s), have a fair market value of more than $25,000, determined in accordance with Section 423 of the Code, for each calendar year in which that right is outstanding. Finally, no employee will be eligible for the grant of any purchase rights under the ESPP if immediately after such rights are granted, such employee has voting power over 5% or more of our outstanding capital stock measured by vote or value pursuant to Code Section 424(d).
 
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Changes to capital structure .    In the event that there occurs a change in our capital structure through such actions as a stock split, merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or similar transaction, the board of directors will make appropriate adjustments to (a) the number of shares reserved under the ESPP, (b) the maximum number of shares that may be issued under the ESPP and (c) the number of shares and purchase price of all outstanding purchase rights.
Corporate transactions.     In the event of a change in control transaction, each outstanding right to purchase shares under our ESPP may be assumed or substituted by our successor. In the event that the successor refuses to assume or substitute the outstanding purchase rights, any offering periods that commenced prior to the closing of the proposed change in control transaction will be shortened and terminated on a new purchase date. The new purchase date will occur prior to the closing of the proposed change in control and our ESPP will then terminate on the closing of the proposed change in control.
Plan amendment or termination .    Our board of directors has the authority to amend or terminate the ESPP at any time. If our board of directors determines that the amendment or termination of an offering is in our best interests and the best interests of our stockholders, then our board of directors may terminate any offering on any purchase date, establish a new purchase date with respect to any offering then in progress, terminate any offering and return any money contributed by participants that has not been used to purchase shares back to the participants. We will obtain stockholder approval of any amendment to the ESPP as required by applicable law.
401(k) plan
We maintain a defined contribution employee retirement plan for our U.S. employees. The plan is intended to qualify as a tax-qualified 401(k) plan so that contributions to the 401(k) plan, and income earned on such contributions, are not taxable to participants until withdrawn or distributed from the 401(k) plan. Participants may make pre-tax contributions to the 401(k) plan from their eligible earnings up to the statutorily prescribed annual limit on pre-tax contributions under the Code. The 401(k) plan provides that each participant may contribute up to 100% of eligible compensation on a pre-tax or, in the case of the Roth 401(k), after tax basis into their accounts. Participants who are at least 50 years old may also contribute additional amounts based on the statutory limits for “catch-up” contributions. Under the 401(k) plan, each employee is fully vested in his or her deferred salary contributions. Employee contributions are held and invested by the plan’s trustee. Although the 401(k) plan provides for a discretionary employer profit sharing contribution and a discretionary employer matching contribution, we have not made any such contributions on behalf of participating employees to date.
Limitation of liability and indemnification of directors and officers
Our restated certificate of incorporation, which will become effective upon the closing of this offering, will contain provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for the following:
 
Ÿ 	 	any breach of their duty of loyalty to our company or our stockholders;	
 
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Ÿ 	 	any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;	
 
Ÿ 	 	unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or	
 
Ÿ 	 	any transaction from which they derived an improper personal benefit.	
Our amended and restated bylaws, which will become effective upon the closing of this offering, will provide that we shall indemnify, to the fullest extent permitted by law, any person who is or was a party or is threatened to be made a party to any action, suit or proceeding, by reason of the fact that he or she is or was one of our directors or officers or is or was serving at our request as a director or officer of another corporation, partnership, joint venture, trust or other enterprise. Our amended and restated bylaws will provide that we may indemnify to the fullest extent permitted by law any person who is or was a party or is threatened to be made a party to any action, suit or proceeding, by reason of the fact that he or she is or was one of our employees or agents or is or was serving at our request as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise. Our amended and restated bylaws will also provide that we must advance expenses incurred by or on behalf of a director or officer in advance of the final disposition of any action or proceeding, subject to very limited exceptions.
Prior to the closing of this offering, we intend to obtain insurance policies under which, subject to the limitations of the policies, coverage is provided to our directors and officers against loss arising from claims made by reason of breach of fiduciary duty or other wrongful acts as a director or officer, including claims relating to public securities matters, and to us with respect to payments that may be made by us to these officers and directors pursuant to our indemnification obligations or otherwise as a matter of law.
Prior to the closing of this offering, we intend to enter into indemnification agreements with each of our directors and executive officers that may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements may require us, among other things, to indemnify our directors and executive officers against liabilities that may arise by reason of their status or service. These indemnification agreements may also require us to advance all expenses incurred by the directors and executive officers in investigating or defending any such action, suit or proceeding. We believe that these agreements are necessary to attract and retain qualified individuals to serve as directors and executive officers.
At present, we are not aware of any pending litigation or proceeding for which indemnification is sought involving any person who is or was one of our directors, officers, employees or other agents or is or was serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, and we are not aware of any threatened litigation that may result in claims for indemnification.
The underwriting agreement provides for indemnification by the underwriters of us and our officers, directors and employees for certain liabilities arising under the Securities Act, or otherwise.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling our company pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
 
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 Certain relationships and related person transactions
Other than compensation arrangements, the following is a description of each transaction since January 1, 2011 and each currently proposed transaction in which:
 
Ÿ 	 	we have been or are to be a participant;	
 
Ÿ 	 	the amount involved exceeds $120,000; and	
 
Ÿ 	 	any of our directors, executive officers or holders of more than 5% of our capital stock, or any immediate family member of or person sharing the household with any of these individuals, had or will have a direct or indirect material interest.	
Compensation arrangements for our directors and named executive officers are described elsewhere in this prospectus.
Series A preferred stock dividend and financing
In February 2011, we declared a stock dividend pursuant to which each holder of our common stock as of such date received 0.078946 shares of our Series A preferred stock for each share of our common stock then held. In March 2011, we declared a second stock dividend pursuant to which each holder of our common stock as of such date received 0.205689 shares of our Series A preferred stock for each share of our common stock then held. As of the record date of both stock dividends, Nicholas Woodman and Dean Woodman, Nicholas Woodman’s father, were the only holders of our common stock. Nicholas Woodman has served as our Chief Executive Officer and as a director since February 2004 and each of Nicholas Woodman and Dean Woodman beneficially own more than 5% of our capital stock.
In February 2011, we issued and sold to accredited investors an aggregate of 7,894,632 shares of Series A preferred stock, at a purchase price of $2.533367 per share, for aggregate consideration of $20.0 million pursuant to the Series A Preferred Stock Purchase Agreement dated February 19, 2011. In connection with the Series A preferred stock financing, Nicholas Woodman and Dean Woodman sold 24,155,730 and 2,683,977 shares of Series A preferred stock, respectively, which constituted all of the shares of Series A preferred stock they received in connection with the stock dividend described above, at a purchase price of $2.533367 per share, for aggregate consideration of $61.2 million and $6.8 million, respectively. Further, in connection with this Series A preferred stock financing, Nicholas Woodman and Dean Woodman contributed 24,155,730 and 2,683,977 shares of common stock, respectively, to us at no cost and as an inducement to investors to participate in this preferred stock financing.
In connection with the Series A preferred stock financing, (i) RW Camera Holdings LLC, or RW Camera acquired 7,894,632 shares of Series A preferred stock from us for aggregate consideration of $20.0 million and 12,994,494 shares of Series A preferred stock from Nicholas Woodman and Dean Woodman for aggregate consideration of $32.9 million, and (ii) Sageview Capital Master, L.P., or Sageview Master, acquired 7,894,635 shares of Series A preferred stock from Nicholas Woodman and Dean Woodman for aggregate consideration of $20.0 million. RW Camera and Sageview Master each hold more than 5% of our capital stock. Michael Marks, one of our directors, is an affiliate of RW Camera. Edward Gilhuly, one of our directors, is an affiliate of Sageview Master.
 
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Investors’ rights agreement
In connection with our Series A preferred stock financing, we entered into an investors’ rights agreement, dated February 25, 2011 and amended on March 10, 2011, with the holders of our redeemable convertible preferred stock, including entities affiliated with certain of our directors. Pursuant to such investors’ rights agreement, the holders of our redeemable convertible preferred stock are entitled to rights with respect to the registration of their shares following this offering under the Securities Act. For a more detailed description of these registration rights see the section titled “Description of capital stock—Registration rights.”
Dividend
On December 19, 2012, we declared cash dividends of $117.4 million pursuant to which each holder of our common stock as of December 21, 2012 received $1.050965 for each share then held by such stockholder (on an as-converted to common stock basis). The following directors, executive officers and holders of more than 5% of our capital stock, or their affiliates, received the dividend payments listed below:

 	 	
Directors, Executive Officers and 5% Stockholders (or Affiliates)	  	Total
Dividend
Received	 	
 	 	
Nicholas Woodman and Jill R. Woodman, as Co-Trustees of the Woodman Family Trust under Trust Agreement dated March 11, 2011(1)	  	$	57,114,689	  	
RW Camera Holdings LLC(2)	  	 	19,291,998	  	
Foxteq Holdings Inc.	  	 	12,306,093	  	
Sageview Capital Master, L.P.(3)	  	 	7,291,032	  	
Dean Woodman(4)	  	 	7,625,825	  	
John Ball(5)	  	 	3,645,515	  	
Andrea Moody	  	 	446,204	  	
Pilar Woodman	  	 	446,204	  	
Concepcion Federman	  	 	315,290	  	
Irwin Federman	  	 	315,290	  	

(1)	 	Nicholas Woodman is our Chief Executive Officer and Chairman and Ms. Woodman is a former member of our board of directors.	
 
(2)	 	Mr. Marks, a member of our board of directors, is an affiliate of RW Camera Holdings LLC.	
 
(3)	 	Mr. Gilhuly, a member of our board of directors, is an affiliate of Sageview Capital Master, L.P.	
 
(4)	 	Includes dividend payments to Dean Woodman, a holder of 5% or more of our capital stock as his sole and separate property and as certain community property, and the Dean S. Woodman 2010 Irrevocable Trust dated December 3, 2010 of which family members of Mr. Woodman are beneficiaries.	
 
(5)	 	Steamboat Ventures Holdings V, L.P. is an affiliate of Mr. Ball.	
Offer letters and change in control agreements
We have entered into offer letters and change in control severance agreements with our executive officers that, among other things, provide for severance and change in control benefits. See “Executive compensation—Employment, severance and change in control agreements” for information about these agreements.
Share of proceeds from sale of equity securities
During our development stage, Mr. Woodman, our Chief Executive Officer, entered into a verbal agreement with Neil Dana, an employee since October 2004, pursuant to which Mr. Woodman
 
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agreed to share 10% of any proceeds he received from the sale of our equity securities held by Mr. Woodman. Pursuant to Mr. Woodman’s agreement with Mr. Dana, in March 2011, we paid Mr. Dana a cash payment of $6.1 million, and Mr. Woodman reimbursed us in the amount of $6.1 million. We recorded the payment to Mr. Dana as compensation expense. In release of any claim Mr. Dana had to further payments under his agreement with Mr. Woodman, in June 2011 we issued Mr. Dana fully vested options to purchase 6,584,427 shares of Class B common stock under our 2010 Plan at an exercise price of $0.763 per share, and in December 2011 issued to him 270,000 RSUs under our 2010 Plan that will be settled upon a qualified acquisition. We recorded compensation expense of $6.8 million in connection with the issuance of these options. In connection with our equity awards to Mr. Dana, Mr. Woodman entered into a separate agreement with us in December 2011 pursuant to which he agreed to contribute back to us the same number of shares of Class B common stock as are issued pursuant to the exercise of Mr. Dana’s options.
Mr. Dana has been employed by us since October 2004. During 2011, 2012 and 2013, Mr. Dana had total cash compensation, including base salary, bonus and other compensation, of $6.3 million (inclusive of the $6.1 million payment described above), $245,499 and $240,982, respectively.
Employment arrangements with and equity grants to immediate family members of our executive officers and directors
Andrea Moody, the sister of Nicholas Woodman, has been employed by us since March 2009. During 2011, 2012 and 2013, Ms. Moody had total cash compensation, including base salary, bonus and other compensation, of $109,107, $139,062 and $102,638, respectively.
Pilar Woodman, the sister of Nicholas Woodman, has been employed by us since January 2011. During 2011, 2012 and 2013, Ms. Woodman had total cash compensation, including base salary, bonus and other compensation, of $83,961, $89,741 and $86,100, respectively.
In connection with their exercise of stock options and their sale of shares of common stock to our Chief Executive Officer in 2012, each of Ms. Moody and Ms. Woodman had reportable income under the Code of $1,970,844. Associated with this transaction we recorded aggregate compensation expense of $806,400 as the cash proceeds received by Ms. Moody and Ms. Woodman were in excess of the fair value of the shares sold.
In June 2011, we granted to Concepcion Federman and Irwin Federman, the mother and stepfather of Nicholas Woodman, an aggregate of 600,000 shares of common stock at a purchase price of $0.0033 per share for consulting services, all of which are fully vested.
Indemnification of directors
Prior to the closing of this offering we intend to enter into indemnification agreements with each of our directors and executive officers. These indemnification agreements and our restated certificate of incorporation and amended and restated bylaws will provide for indemnification of each of our directors and executive officers to the fullest extent permitted by Delaware law. For a more detailed description of our indemnification arrangements, see “Management—Limitation of liability and indemnification of directors and officers.”
 
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Other transactions
Beginning in April 2013, we entered into agreements for certain contract manufacturing and engineering services with a company affiliated with Foxteq Holdings Inc., a beneficial owner of more than 5% of our capital stock. As of March 31, 2014, the aggregate amount invoiced to us under these agreements was $14.1 million.
In July 2013, we loaned to Paul Crandell, one of our named executive officers, $150,000, pursuant to a demand payment loan that did not bear interest, which was repaid in March 2014.
In August 2013, we entered into an agreement with Mooresville Motorplex, LLC, a company owned by the son of Michael Marks, one of our directors, to acquire certain naming rights to a sprint kart track. As consideration for these naming rights, we will pay a total of $525,000 in installments beginning in October 2013 over the naming rights period. In addition to cash payment for the naming rights, we are also contractually obligated to provide Mooresville Motorplex with 300 capture devices at no cost over the life of the agreement.
In November 2013, we became a party to a settlement agreement between Nicholas Woodman and Dean Woodman related to an outstanding legal matter. Pursuant to the settlement agreement, we reimbursed Dean Woodman’s legal expenses of $175,000.
In December 2013, we entered into a separation agreement with Kurt Amundson, our former Chief Financial Officer, pursuant to which we paid him cash severance of $290,306.
In fiscal year 2013 and the first quarter of fiscal year 2014, we incurred and expensed chartered aircraft fees for the use of Mr. Woodman’s private plane, for which $185,000 was accrued as of March 31, 2014.
Review, approval or ratification of transactions with related parties
Our policy and the charter of the governance and nominating committee require that any transaction with a related party that must be reported under applicable rules of the SEC (other than compensation-related matters) and must be reviewed and approved by the governance and nominating committee (other than transactions that are subject to review by our board of directors as a whole or any other committee of our board of directors), unless the related party is, or is associated with, a member of such committee, in which event such transaction must be reviewed and approved by the audit committee. These committees have not yet adopted policies or procedures for review of, or standards for approval of, such transactions.
 
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 Principal and selling stockholders
The following table presents information as to the beneficial ownership of our Class B common stock as of March 31, 2014, as adjusted to reflect the sale of our Class A common stock in this offering, by:
 
Ÿ 	 	each stockholder known by us to be the beneficial owner of more than 5% of our Class B common stock;	
 
Ÿ 	 	each of our directors;	
 
Ÿ 	 	each of our named executive officers;	
 
Ÿ 	 	all of our directors and executive officers as a group; and	
 
Ÿ 	 	each selling stockholder.	
Beneficial ownership is determined in accordance with the rules of the SEC and thus represents voting or investment power with respect to our securities. Unless otherwise indicated below, to our knowledge, the persons and entities named in the table have sole voting and sole investment power with respect to all shares beneficially owned, subject to community property laws where applicable. Shares of our Class B common stock subject to options that are currently exercisable or exercisable within 60 days of March 31, 2014 are deemed to be outstanding and to be beneficially owned by the person holding the options for the purpose of computing the percentage ownership of that person but are not treated as outstanding for the purpose of computing the percentage ownership of any other person.
Percentage ownership of our Class B common stock before this offering is based on 112,820,599 shares of our Class B common stock outstanding on March 31, 2014, which includes 30,523,036 shares of Class B common stock resulting from the conversion of all outstanding shares of our redeemable convertible preferred stock in connection with the closing of this offering, as if this conversion had occurred as of March 31, 2014. No shares of our Class A common stock will be outstanding prior to the effective date of this prospectus. Percentage ownership of our Class A and Class B common stock after the offering also assumes our sale of shares of Class A common stock in this offering (assuming no exercise of the underwriters’ option to purchase additional shares). Unless otherwise indicated, the address of each of the individuals and entities named below is c/o GoPro, Inc., 3000 Clearview Way, San Mateo, California 94402.
 
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   	 	Number of shares
beneficially owned
before this  offering	 	 	   	 	 	   	 	Number of shares
beneficially owned
after this offering	 	   	
Name	 	Class B	 	 	% of total
voting
power
before
offering(1)	 	 	Number of
shares
offered	 	Class A	 	Class B	 	% of total
voting
power
after
offering(1)	
 	
5% stockholders:	 				 				 		 		 		 		
Nicholas Woodman and Jill R. Woodman, as Co-Trustees of The Woodman Family Trust under Trust Agreement dated March 11, 2011(2)	 	 	55,100,496	  	 	 	48.84	  	 		 		 		 		
RW Camera Holdings LLC(3)	 	 	18,356,461	  	 	 	16.27	  	 		 		 		 		
Foxteq Holdings Inc.(4)	 	 	11,709,327	  	 	 	10.38	  	 		 		 		 		
Dean Woodman(5)	 	 	7,256,022	  	 	 	6.43	  	 		 		 		 		
Sageview Capital Master, L.P.(6)	 	 	6,937,464	  	 	 	6.15	  	 		 		 		 		
Neil Dana(7)	 	 	6,584,427	  	 	 	5.51	  	 		 		 		 		
							
Directors and named executive officers:	 				 				 		 		 		 		
Nicholas Woodman(8)	 	 	55,100,496	  	 	 	48.84	  	 		 		 		 		
Jill Woodman(8)	 	 	55,100,496	  	 	 	48.84	  	 		 		 		 		
Michael Marks(9)	 	 	18,356,461	  	 	 	16.27	  	 		 		 		 		
Edward Gilhuly(10)	 	 	6,937,464	  	 	 	6.15	  	 		 		 		 		
John Ball(11)	 	 	3,468,731	  	 	 	3.07	  	 		 		 		 		
Kenneth Goldman	 	 	—	  	 	 	*	  	 		 		 		 		
Paul Crandell(12)	 	 	229,687	  	 	 	*	  	 		 		 		 		
Nina Richardson(13)	 	 	140,625	  	 	 	*	  	 		 		 		 		
All executive officers and directors as a group (15 persons)(14)	 	 	86,972,837	  	 	 	75.27	  	 		 		 		 		

*	 	Represents beneficial ownership of less than 1% of our outstanding shares of common stock.	
 
(1)	 	Percentage of total voting power represents voting power with respect to all shares of our Class A and Class B common stock, as a single class. The holders of our Class B common stock are entitled to ten votes per share, and holders of our Class A common stock are entitled to one vote per share. See “Description of capital stock—Common stock” for more information about the voting rights of our Class A and Class B common stock.	
 
(2)	 	As Co-Trustees, each of Mr. Woodman and Ms. Woodman may be deemed to have shared voting and investment power over these shares. The address for the Woodman Family Trust is 3000 Clearview Way, San Mateo, CA 94402.	
 
(3)	 	Consists of 18,356,461 shares held by RW Camera Holdings LLC. Riverwood Capital L.P. is the manager of RW Camera Holdings LLC and Riverwood Capital GP Ltd. is the general partner of Riverwood Capital L.P. Mr. Marks, a member of our board of directors, is Chief Executive Officer and Director of Riverwood Capital GP Ltd., and Nicholas Brathwaite, Francisco Alvarez-Demalde and Jeff Parks are the managing directors of Riverwood Capital GP Ltd., all of whom may be deemed to share voting and investment power over these shares. The address for RW Camera Holdings is 70 Willow Road, Suite 100, Menlo Park, CA 94025.	
 
(4)	 	Consists of 11,709,327 shares held by Foxteq Holdings Inc. Foxconn (Far East) Ltd. (Cayman), an exempt company, is the manager of Foxteq Holdings Inc. Hon Hai Precision Industry Co., Ltd., a company limited by shares, is the manager of Foxconn (Far East) Ltd. (Cayman). The address for Foxteq Holdings Inc. is No 2 Ziyou Street, Tucheng District New Taipei City 236 Taiwan, Republic of China.	
 
(5)	 	Consists of (i) 120,000 shares held by Dean Woodman as his sole and separate property, (ii) 5,336,022 shares held by Dean Woodman as certain community property and (iii) 1,800,000 shares held by Theodore H. Swindells, Trustee of the Dean S. Woodman 2010 Irrevocable Trust dated December 3, 2010. The address for Dean Woodman is c/o Morgan Stanley Private Wealth Management, 555 California Street, 35 th Floor, San Francisco, CA 94104, Attn: Michael Baumer.	
 
(6)	 	Consists of 6,937,464 shares held by Sageview Capital Master, L.P. (“Sageview Master”). Sageview Capital Partners (A), L.P. (“Sageview A”), Sageview Capital Partners (B), L.P. (“Sageview B”) and Sageview Partners (C) (Master), L.P. (“Sageview C”) are the sole shareholders of Sageview Master. Sageview Capital GenPar, Ltd. (“Sageview Ltd”) is the sole general partner of each of Sageview Master. Sageview A, Sageview B and Sageview C. Sageview Capital GenPar, L.P. (“Sageview GenPar”) is the sole shareholder of Sageview Ltd. Sageview Capital MGP, LLC is the sole general partner of Sageview GenPar. Scott Stuart and	
 
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 	Edward Gilhuly, one of our directors, are managing members and controlling persons of Sageview Capital MGP, LLC. As managing members of Sageview Capital MGP, LLC, each of Messrs. Stuart and Gilhuly may be deemed to share voting and invested power over these shares. The address for Mr. Gilhuly is c/o Sageview Capital LP, 245 Lytton Avenue, Suite 250, Palo Alto, CA 94301. The address for Mr. Stuart is c/o Sageview Capital LP, 55 Railroad Avenue, Greenwich, CT 06830.	
 
(7)	 	Consists of 6,584,427 shares subject to options held by Mr. Dana that are exercisable within 60 days of March 31, 2014. The address for Mr. Dana is 3000 Clearview Way, San Mateo, CA 94402.	
 
(8)	 	Consists of 55,100,496 shares held by the Woodman Family Trust under Trust Agreement dated March 11, 2011 of which Nicholas Woodman and Jill Woodman are co-trustees. Jill Woodman resigned as a member of our board of directors in May 2014.	
 
(9)	 	Consists of the shares referred to in footnote (3) above. The address for Mr. Marks is c/o Riverwood Capital, 70 Willow Road, Suite 100, Menlo Park, CA 94025.	
 
(10)	 	Consists of the shares referred to in footnote (6) above. The address for Mr. Gilhuly is c/o Sageview Capital LP, 245 Lytton Avenue, Suite 250, Palo Alto, CA 94301.	
 
(11)	 	Consists of 3,468,731 shares held by Steamboat Ventures V, L.P., on its own behalf and as nominee for the benefit of certain other entities affiliated with Steamboat Ventures V, L.P. Steamboat Ventures Holdings V Manager, L.P. is the general partner of Steamboat Ventures V, L.P. Steamboat Ventures Holdings V GP, Ltd. is the general partner of Steamboat Ventures Holdings V Manager, L.P. Mr. Ball, a member of our board of directors, is a managing partner of Steamboat Ventures Holdings V GP, Ltd. and may be deemed to have shared voting and investment power over these shares. The address for Mr. Ball is 3601 West Olive Avenue, Suite 650, Burbank, CA 91505.	
 
(12)	 	Consists of: (i) 80,300 shares and (ii) 149,387 shares subject to options held by Mr. Crandell that are exercisable within 60 days of March 31, 2014.	
 
(13)	 	Consists of 140,625 shares subject to options held by Ms. Richardson that are exercisable within 60 days of March 31, 2014.	
 
(14)	 	Consists of (i) 84,250,018 shares and (ii) 2,722,819 shares subject to options that are exercisable within 60 days of March 31, 2014.	
 
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 Description of capital stock
Upon the completion of this offering, our authorized capital stock will consist of                  shares of Class A common stock, $0.0001 par value per share,                  shares of Class B common stock, $0.0001 par value per share and 5,000,000 shares of undesignated preferred stock, $0.0001 par value per share. The following description summarizes the most important terms of our capital stock. Because it is only a summary, it does not contain all the information that may be important to you. For a complete description, you should refer to our restated certificate of incorporation and amended and restated bylaws that will be in effect upon the completion of this offering, which will be included as exhibits to the registration statement of which this prospectus forms a part, and to the provisions of applicable Delaware law.
Common stock
As of March 31, 2014, there were 112,820,599 shares of our Class B common stock outstanding, held by 190 stockholders of record, assuming the conversion of all of the outstanding shares of redeemable convertible preferred stock into 30,523,036 shares of Class B common stock in connection with the closing of this offering. No shares of our Class A common stock will be outstanding prior to the effective date of this prospectus. After this offering, there will be                 shares of our Class A common stock outstanding and                  shares of our Class B common stock outstanding, or                  shares of Class A common stock outstanding if the underwriters exercise in full their option to purchase additional shares of Class A common stock in this offering.
Dividend rights
Subject to preferences that may apply to shares of preferred stock outstanding at the time, the holders of outstanding shares of our Class A and Class B common stock are entitled to receive dividends out of funds legally available at the times and in the amounts that our board of directors may determine.
Voting rights
Holders of our Class A and Class B common stock have identical rights, except that holders of our Class A common stock are entitled to one vote for each share of Class A common stock held on all matters submitted to a vote of stockholders and holders of our Class B common stock are entitled to 10 votes for each share of Class B common stock held on all matters submitted to a vote of stockholders. Holders of shares of our Class A common stock and Class B common stock will vote together as a single class on all matters (including the election of directors) submitted to a vote of stockholders, unless otherwise required by law. Cumulative voting for the election of directors is not provided for in our restated certificate of incorporation that will be in effect upon the closing of this offering, which means that the holders of a majority of our voting shares can elect all of the directors then standing for election.
No preemptive or similar rights
Neither our Class A nor our Class B common stock is entitled to preemptive or redemption rights.
Conversion
Our Class A common stock is not convertible into any other shares of our capital stock. Each share of our Class B common stock is convertible at any time at the option of the holder into one share
 
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of our Class A common stock. In addition, each share of our Class B common stock will convert automatically into one share of our Class A common stock upon any transfer, whether or not for value, except for estate planning, intercompany and other similar transfers. Following the completion of this offering, each share of our Class B common stock will convert automatically into one share of Class A common stock on the date that the total number of shares of Class B common stock outstanding represents less than 10% of the total number of shares of Class A and Class B common stock outstanding. Each share of our Class B common stock will also convert into one share of Class A common stock if such conversion is approved by the holders of a majority of the then-outstanding shares of Class B common stock. Once converted into Class A common stock, the Class B common stock may not be reissued. No class of our common stock may be subdivided or combined unless the other class of our common stock concurrently is subdivided or combined in the same proportion and in the same manner.
Right to receive liquidation distributions
Upon our liquidation, dissolution or winding-up, the assets legally available for distribution to our stockholders would be distributable ratably among the holders of our Class A and Class B common stock and any participating preferred stock outstanding at that time after payment of liquidation preferences, if any, on any outstanding shares of preferred stock and payment of other claims of creditors.
Fully paid and nonassessable
All outstanding shares of our Class B common stock are, and the shares of our Class A common stock to be issued pursuant to this offering will be, fully paid and non-assessable.
Preferred stock
Following this offering, our board of directors will be authorized, subject to limitations prescribed by Delaware law, to issue preferred stock in one or more series, to establish from time to time the number of shares to be included in each series, to fix the designation, powers, preferences and rights of the shares of each series and any of its qualifications, limitations or restrictions, in each case without further action by our stockholders. Our board of directors can also increase or decrease the number of shares of any series of preferred stock, but not below the number of shares of that series then outstanding, unless approved by the affirmative vote of the holders of a majority of our capital stock entitled to vote, or such other vote as may be required by the certificate of designation establishing the series. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of the Class A or Class B common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in our control and might adversely affect the market price of our Class A common stock and the voting and other rights of the holders of our Class A and Class B common stock. We have no current plan to issue any shares of our preferred stock.
Options and RSUs
As of March 31, 2014, we had outstanding options to purchase 27,798,919 shares of our Class B common stock and 570,000 RSUs under our 2010 Plan.
 
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Registration rights
Pursuant to the terms of our investors’ rights agreement, immediately following the completion of this offering, the holders of approximately 30,523,036 shares of our Class B common stock will be entitled to rights with respect to the registration of such shares under the Securities Act, as described below.
Demand registration rights .    At any time following 180 days after the effective date of this offering, the holders of a majority of the then-outstanding shares having registration rights can request that we file a registration statement covering registrable securities with an anticipated aggregate offering price of at least $50.0 million, provided that we are not required to file more than one such registration statement. In addition, at such time as we are eligible to register securities on a Registration Statement on Form S-3, the holders of a majority of the then-outstanding shares having registration rights can request that we file a registration statement covering registrable securities with an anticipated aggregate offering price of at least $7.0 million, provided that we are not required to file more than two such registrations in a 12-month period. We have certain rights to postpone or delay such requests for the filing of a registration statement. 
Piggyback registration rights .    If we register any of our securities for public sale, holders of shares having registration rights will have the right to include their shares in the registration statement. However, this right does not apply to a registration relating to any of our employee benefit plans or a registration relating to a corporate reorganization. If the managing underwriter of any underwritten offering determines that it is necessary to limit the number of shares included in the offering by these holders, the number of shares to be registered will be apportioned pro rata among these holders. However, except in limited circumstances, the number of shares to be registered by these holders cannot be reduced below 25% of the total shares covered by the registration statement. 
Expenses of registration rights .    We will pay all expenses incurred in connection with the registrations described above.
Expiration of registration rights .    The registration rights described above will expire, with respect to any particular holder of these rights, on the earlier of the fifth anniversary of the effective date of this offering or when such holder can sell all of its registrable securities in any three-month period without registration under Rule 144 of the Securities Act. 
Anti-takeover provisions
The provisions of Delaware law, our restated certificate of incorporation and our amended and restated bylaws that will be in effect upon the completion of this offering may have the effect of delaying, deferring or discouraging another person from acquiring control of our company.
Delaware law
We are subject to Section 203 of the Delaware General Corporation Law, which prohibits a Delaware corporation from engaging in any “business combination” with any interested stockholder for a period of three years after the date that such stockholder became an interested stockholder, with the following exceptions:
 
Ÿ 	 	before such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;	
 
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Ÿ 	 	upon closing 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 began, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (i) by persons who are directors and also officers and (ii) 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	
 
Ÿ 	 	on or after such date, the business combination is approved by the board of directors and authorized at an annual or special meeting of the 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 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.
Restated certificate of incorporation and amended and restated bylaw provisions
We anticipate that our restated certificate of incorporation and our amended and restated bylaws that will be in effect upon the completion of this offering will include a number of provisions that may have the effect of deterring hostile takeovers or delaying or preventing changes in control of our management team, including the following:
 
Ÿ 	 	Dual class common stock.     As described above in “—Common stock—Voting rights,” our restated certificate of incorporation will provide for a dual class common stock structure pursuant to which holders of our Class B common stock will have the ability to control the outcome of matters requiring stockholder approval, even if they own significantly less than a majority of the shares of our outstanding Class A and Class B common stock, including the election of directors and significant corporate transactions, such as a merger or other sale of our company or its assets, and current investors, executives and employees with the ability to exercise significant influence over those matters.	
 
Ÿ 	 	Board of directors vacancies.     Our restated certificate of incorporation and amended and restated bylaws will authorize only our board of directors to fill vacant directorships. In addition, the number of directors constituting our board of directors may be set only by resolution adopted by a majority vote of our entire board of directors. These provisions prevent a stockholder from increasing the size of our board of directors and gaining control of our board of directors by filling the resulting vacancies with its own nominees.	
 
Ÿ 	 	Classified board.     Initially our board of directors will not be classified. However, our restated certificate of incorporation and amended and restated bylaws will provide that our board will be classified into three classes of directors at such time as all shares of our Class B common stock have been converted into shares of our Class A common stock. Directors may be removed from office with or without cause so long as our board of directors is not classified, and thereafter directors may be removed from office only for cause. The existence of a classified board could delay a successful tender offeror from obtaining majority control of our board of directors, and the prospect of that delay might deter a potential offeror.	
 
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Ÿ 	 	Supermajority requirements for bylaws and certificate of incorporation amendments.     Our restated certificate of incorporation will further provide that the affirmative vote of holders of at least 66 2/3% of the voting power of all of the then outstanding shares of voting stock will be required to amend certain provisions of our certificate of incorporation, including provisions relating to the classified board, the size of the board, removal of directors, special meetings, actions by written consent and designation of our preferred stock. In addition, the affirmative vote of holders of 75% of the voting power of each of our Class A common stock and Class B common stock, voting separately by class, will be required to amend the provisions of our restated certificate of incorporation relating to the terms of our Class B common stock. The affirmative vote of holders of at least 66 2/3% of the voting power of all of the then outstanding shares of voting stock will be required to amend or repeal our amended and restated bylaws, although our amended and restated bylaws may be amended by a simple majority vote of our board of directors.	
 
Ÿ 	 	Stockholder action; special meeting of stockholders.     Our restated certificate of incorporation will provide that our stockholders may not take action by written consent, but may only take action at annual or special meetings of our stockholders. Stockholders will not be permitted to cumulate their votes for the election of directors. Our restated certificate of incorporation and our amended and restated bylaws that will be in effect upon the closing of this offering will further provide that so long as any shares of our Class B common stock are outstanding, special meetings of our stockholders may be called by the holders of 10% of the outstanding voting power of all then-outstanding shares of stock, a majority of our board of directors, the chairman of our board of directors, our chief executive office or our president, and thereafter special meetings of our stockholders may be called only by a majority of our board of directors, the chairman of our board of directors, our chief executive officer or our president.	
 
Ÿ 	 	Advance notice requirements for stockholder proposals and director nominations.     Our amended and restated bylaws will provide advance notice procedures for stockholders seeking to bring business before our annual meeting of stockholders, or to nominate candidates for election as directors at our annual meeting of stockholders. Our amended and restated bylaws also will specify certain requirements regarding the form and content of a stockholder’s notice. These provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders.	
 
Ÿ 	 	Issuance of undesignated preferred stock.     After the filing of our restated certificate of incorporation, our board of directors will have the authority, without further action by the stockholders, to issue up to 5,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time by our board of directors. The existence of authorized but unissued shares of preferred stock enables our board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise.	
Choice of forum
Our restated certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the exclusive forum for any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty owed by any of our directors, officers or other employees;
 
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any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our restated certificate of incorporation or our amended and restated bylaws; or any action asserting a claim against us that is governed by the internal affairs doctrine. There are several pending lawsuits challenging the validity of choice of forum provisions in other companies’ organizational documents. It is possible that a court could rule that such a provision is inapplicable or unenforceable.
Limitations of liability and indemnification
See “Executive compensation—Limited liability and indemnification of directors and officers.”
NASDAQ listing
We have applied to list our Class A common stock on the NASDAQ Global Select Market under the symbol “GPRO.”
Transfer agent and registrar
The transfer agent and registrar for our Class A common stock is American Stock Transfer & Trust Company, LLC. The transfer agent’s address is 6201 15th Avenue, Brooklyn, New York 11219, and its telephone number is (800) 937-5449.
 
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 Shares eligible for future sale
Prior to this offering, there has not been a public market for shares of our Class A common stock, and we cannot predict the effect, if any, that market sales of shares of our Class A common stock or the availability of shares of our Class A common stock for sale will have on the prevailing market price of our Class A common stock from time to time. Nevertheless, sales of substantial amounts of our Class A common stock, including shares of Class A common stock issued upon conversion of Class B common stock issued upon exercise of outstanding options or settlement of outstanding RSUs, or the perception that these sales could occur in the public market after this offering could adversely affect prevailing market prices and could impair our ability to raise capital through the sale of our equity securities.
Upon the closing of this offering, based on the number of shares outstanding as of March 31, 2014, we will have                  shares of Class A and Class B common stock outstanding assuming no exercise of outstanding options after March 31, 2014. Of these shares, all                  shares of Class A common stock sold in this offering will be freely tradable, except that any shares held by our affiliates, as that term is defined in Rule 144 under the Securities Act, may only be sold in compliance with the limitations described below.
The remaining                  outstanding shares of our Class A and Class B common stock will be deemed “restricted securities” as defined in Rule 144 under the Securities Act. Restricted securities may be sold in the public market only if registered under the Securities Act or if they qualify for an exemption from registration under Rule 144 or Rule 701 under the Securities Act, which rules are summarized below.
In addition, all of our stockholders have entered into market standoff agreements with us or lock-up agreements with the underwriters under which they agreed, subject to specific exceptions, not to sell any of their stock for at least 180 days following the date of this prospectus. Subject to the provisions of Rule 144 or Rule 701, based on an assumed offering date of                 , 2014, shares will be available for sale in the public market as follows:
 
Ÿ 	 	Beginning on the date of this prospectus,                 of the shares will be immediately available for sale in the public market without restriction.	
 
Ÿ 	 	Beginning 181 days after the date of this prospectus, subject to extension as described in “Underwriting,”              shares will become eligible for sale in the public market, of which              shares will be freely tradable under Rule 144 and Rule 701 and              shares will be held by affiliates and subject to the volume and other restrictions of Rule 144 and Rule 701, as described below.	
In addition, of the 27,798,919 shares of our Class B common stock that were subject to stock options outstanding as of March 31, 2014, options to purchase 21,285,710 shares of Class B common stock were vested as of March 31, 2014 and will be eligible for sale 181 days following the effective date of this prospectus, subject to extension as described in “Underwriting.”
 
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Lock-up agreements
All of our directors and officers and the holders of substantially all our equity securities are subject to lock-up agreements described in “Underwriting.”
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 those 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 that person is entitled to sell those 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:
 
Ÿ 	 	1% of the number of shares of Class A and Class B common stock then outstanding, which will equal approximately                 shares immediately after this offering, or	
 
Ÿ 	 	the average weekly trading volume of the Class A common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to that 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.
Rule 701
In general, Rule 701 as currently in effect allows a stockholder who purchased shares of our Class B 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. All holders of Rule 701 shares, however, are required to wait until 90 days after the date of this prospectus before selling those shares pursuant to Rule 701. Moreover, substantially all Rule 701 shares are subject to lock-up agreements as described above and under the section titled “Underwriting” and will not become eligible for sale until the expiration of those agreements.
 
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Registration statements
We intend to file a registration statement on Form S-8 under the Securities Act covering all of the shares of our Class B common stock subject to options and RSUs outstanding and shares of our Class A common stock reserved for issuance under our equity incentive plans. We expect to file this registration statement on, or as soon as practicable after, the effective date of this prospectus. However, the shares registered on Form S-8 will not be eligible for resale until expiration of the lock up agreements to which they are subject.
Registration rights
We have granted demand registration rights, rights to participate in offerings that we initiate and Form S-3 registration rights to certain of our stockholders to sell our common stock. For a further description of these rights, see “Description of capital stock—Registration rights.”
 
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 Certain material U.S. federal income tax considerations for non-U.S. holders of Class A common stock
This section summarizes certain material U.S. federal income tax considerations relating to the ownership and disposition of our Class A common stock by a “non-U.S. holder” (as defined below) pursuant to this offering. This summary does not provide a complete analysis of all potential tax considerations. The information provided below is based upon provisions of the Internal Revenue Code of 1986, as amended, or the Code, Treasury regulations promulgated thereunder, administrative rulings and judicial decisions currently in effect. These authorities may change at any time, possibly on a retroactive basis, or the IRS, might interpret the existing authorities differently. In either case, the tax considerations of owning or disposing of our Class A common stock could differ from those described below. As a result, we cannot assure you that the tax consequences described in this discussion will not be challenged by the IRS or will be sustained by a court if challenged by the IRS.
This summary 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 and estate tax laws, except to the limited extent provided below. In addition, this discussion does not address tax considerations applicable to an investor’s particular circumstances or to investors that may be subject to special tax rules, including, without limitation:
 
Ÿ 	 	banks, insurance companies or other financial institutions;	
 
Ÿ 	 	partnerships or entities or arrangements treated as partnerships or other pass-through entities for U.S. federal tax purposes (or investors in such entities);	
 
Ÿ 	 	corporations that accumulates earnings to avoid U.S. federal income tax;	
 
Ÿ 	 	persons subject to the alternative minimum tax or the net investment income tax;	
 
Ÿ 	 	tax-exempt organizations or tax-qualified retirement plans;	
 
Ÿ 	 	real estate investment trusts or regulated investment companies;	
 
Ÿ 	 	controlled foreign corporations or passive foreign investment companies;	
 
Ÿ 	 	persons who acquired our common stock as compensation for services;	
 
Ÿ 	 	dealers in securities or currencies;	
 
Ÿ 	 	traders in securities that elect to use a mark-to-market method of accounting for their securities holdings;	
 
Ÿ 	 	persons that own, or are deemed to own, more than 5% of our capital stock (except to the extent specifically set forth below);	
 
Ÿ 	 	certain former citizens or long-term residents of the United States;	
 
Ÿ 	 	persons who hold our common stock as a position in a hedging transaction, “straddle,” “conversion transaction” or other risk reduction transaction;	
 
Ÿ 	 	persons who do not hold our common stock as a capital asset within the meaning of Section 1221 of the Code (generally, for investment purposes); or	
 
Ÿ 	 	persons deemed to sell our common stock under the constructive sale provisions of the Code.	
 
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In addition, if a partnership or entity classified as a partnership for U.S. federal income tax purposes is a beneficial owner of our Class A common stock, the tax treatment of a partner in the partnership or an owner of the entity will depend upon the status of the partner or other owner and the activities of the partnership or other entity. Accordingly, this summary does not address tax considerations applicable to partnerships that hold our Class A common stock, and partners in such partnerships should consult their tax advisors.
INVESTORS CONSIDERING THE PURCHASE OF OUR CLASS A COMMON STOCK SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE APPLICATION OF THE U.S. FEDERAL INCOME AND ESTATE TAX LAWS TO THEIR PARTICULAR SITUATIONS AND THE CONSEQUENCES OF FOREIGN, STATE OR LOCAL LAWS, AND TAX TREATIES.
Non-U.S. holder defined
For purposes of this summary, a “non-U.S. holder” is any holder of our Class A common stock, other than an entity taxable as a partnership for U.S. federal income tax purposes or:
 
Ÿ 	 	an individual who is a citizen or resident of the United States;	
 
Ÿ 	 	a corporation, or other entity taxable as a corporation for United States federal income tax purposes, created or organized under the laws of the United States, any state therein or the District of Columbia or otherwise treated as such for U.S. federal income tax purposes;	
 
Ÿ 	 	a trust that (1) is subject to the primary supervision of a U.S. court and one or more U.S. persons have authority to control all substantial decisions of the trust or (2) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person; or	
 
Ÿ 	 	an estate whose income is subject to U.S. income tax regardless of source.	
If you are a non-U.S. citizen that is an individual, you may, in many cases, be deemed to be a resident alien, as opposed to a nonresident alien, by virtue of being present in the United States for at least 31 days in the calendar year and for an aggregate of at least 183 days during a three-year period ending in the current calendar year. For these purposes, all the days present in the current year, one-third of the days present in the immediately preceding year, and one-sixth of the days present in the second preceding year are counted. Resident aliens are subject to U.S. federal income tax as if they were U.S. citizens. Such an individual is urged to consult his or her own tax advisor regarding the U.S. federal income tax consequences of the ownership, sale, exchange or other disposition of our Class A common stock.
Distributions
We do not expect to declare or make any distributions on our Class A common stock in the foreseeable future. If we do make any distributions on shares of our Class A common stock, however, such distributions 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. Distributions in excess of our current and accumulated earnings and profits will constitute a return of capital that is applied against and reduces, but not below zero, a non-U.S. holder’s adjusted tax basis in shares of our Class A common stock. Any remaining excess will be treated as gain realized on the sale or other disposition of our Class A common stock. See “—Sale of Class A common stock.”
 
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Any distribution made to a non-U.S. holder on our Class A common stock that is not effectively connected with a non-U.S. holder’s conduct of a trade or business in the United States will generally be subject to U.S. withholding tax at a 30% rate. The withholding tax might not apply, however, or might apply at a reduced rate, under the terms of an applicable income tax treaty between the United States and the non-U.S. holder’s country of residence. You should consult your tax advisors regarding your entitlement to benefits under a relevant income tax treaty. Generally, in order for us or our paying agent to withhold tax at a lower treaty rate, a non-U.S. holder must certify its entitlement to treaty benefits. A non-U.S. holder generally can meet this certification requirement by providing a Form W-8BEN (or any successor form) or appropriate substitute form to us or our paying agent. If the non-U.S. holder holds the stock through a financial institution or other agent acting on the holder’s behalf, the holder will be required to provide appropriate documentation to the agent. The holder’s agent will then be required to provide certification to us or our paying agent, either directly or through other intermediaries. If you are eligible for a reduced rate of U.S. federal withholding tax under an income tax treaty, you may obtain a refund or credit from the IRS of any excess amounts withheld by filing an appropriate claim for a refund with the IRS in a timely manner.
Distributions received by a non-U.S. holder that are effectively connected with a U.S. trade or business conducted by the non-U.S. holder, or, if an income tax treaty between the United States and the non-U.S. holder’s country of residence applies, are attributable to a permanent establishment maintained by the non-U.S. holder in the United States, are not subject to such withholding tax. To obtain this exemption, a non-U.S. holder must provide us with an IRS Form W-8ECI properly certifying such exemption. Such effectively connected distributions, although not subject to withholding tax, are generally taxed at the same graduated rates applicable to U.S. persons, net of certain deductions and credits. In addition to the graduated tax described above, distributions received by corporate non-U.S. holders that are effectively connected with a U.S. trade or business of the corporate non-U.S. holder 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 tax treaty.
Sale of Class A common stock
Subject to the discussion below regarding the Foreign Account Tax Compliance Act, or FATCA, non-U.S. holders will generally not be subject to U.S. federal income tax on any gains realized on the sale, exchange or other disposition of Class A common stock unless:
 
Ÿ 	 	the gain (1) is effectively connected with the conduct by the non-U.S. holder of a U.S. trade or business and (2) if required by an applicable income tax treaty between the United States and the non-U.S. holder’s country of residence applies, is attributable to a permanent establishment (or, in the case of an individual, a fixed base) maintained by the non-U.S. holder in the United States (in which case the special rules described below apply);	
 
Ÿ 	 	the non-U.S. holder is an individual who is present in the United States for 183 days or more in the taxable year of the sale, exchange or other disposition of our Class A common stock, and certain other requirements are met (in which case the gain would be subject to a flat 30% tax, or such reduced rate as may be specified by an applicable income tax treaty, which may be offset by U.S. source capital losses, even though the individual is not considered a resident of the United States); or	
 
Ÿ 	 	the rules of the Foreign Investment in Real Property Tax Act, or FIRPTA, treat the gain as effectively connected with a U.S. trade or business.	
 
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The FIRPTA rules may apply to a sale, exchange or other disposition of our Class A common stock if we are, or were within the shorter of the five-year period preceding the disposition and the non-U.S. holder’s holding period, a “U.S. real property holding corporation, or USRPHC. In general, we would be a USRPHC if interests in U.S. real estate comprised at least half of the value of our business assets. We do not believe that we are a USRPHC and we do not anticipate becoming one in the future. Even if we become a USRPHC, 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 subject to the FIRPTA rules only if a non-U.S. holder actually owns or constructively holds more than 5% of our outstanding common stock.
If any gain from the sale, exchange or other disposition of Class A common stock, (1) is effectively connected with a U.S. trade or business conducted by a non-U.S. holder and (2) if an income tax treaty between the United States and the non-U.S. holder’s country of residence applies, is attributable to a permanent establishment (or, in the case of an individual, a fixed base) maintained by such non-U.S. holder in the United States, then the gain generally will be subject to U.S. federal income tax at the same graduated rates applicable to U.S. persons, net of certain deductions and credits. If the non-U.S. holder is a corporation, under certain circumstances, that portion of its earnings and profits that is effectively connected with its U.S. trade or business, subject to certain adjustments, generally would be subject to a “branch profits tax.” The branch profits tax rate is 30%, although an applicable income tax treaty between the United States and the non-U.S. holder’s country of residence might provide for a lower rate.
U.S. federal estate tax
The estates of nonresident alien individuals generally are subject to U.S. federal estate tax on property with a U.S. situs. Because we are a U.S. corporation, our common stock will be U.S. situs property and therefore will be included in the taxable estate of a nonresident alien decedent, unless an applicable tax treaty between the United States and the decedent’s country of residence provides otherwise.
Backup withholding and information reporting
The Code and the Treasury regulations require those who make specified payments to report the payments to the IRS. Among the specified payments are dividends and proceeds paid by brokers to their customers. The required information returns enable the IRS to determine whether the recipient properly included the payments in income. This reporting regime is reinforced by “backup withholding” rules. These rules require the payors to withhold tax from payments subject to information reporting if the recipient fails to cooperate with the reporting regime by failing to provide his taxpayer identification number to the payor, furnishing an incorrect identification number, failing to report interest or dividends on his U.S. tax returns, or failing to otherwise establish an exemption to these rules. The backup withholding tax rate is currently 28%. The backup withholding rules do not apply to payments to corporations, whether domestic or foreign, provided that they establish such exemption.
Payments to non-U.S. holders of dividends on common stock generally will not be subject to backup withholding, and payments of proceeds made to non-U.S. holders by a broker upon a sale of common stock will not be subject to information reporting or backup withholding, in each case so long as the non-U.S. holder certifies its nonresident status (and we or our paying agent do not have actual knowledge or reason to know the holder is a U.S. person or that the conditions
 
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of any other exemption are not, in fact, satisfied) or otherwise establishes an exemption. The certification procedures to claim treaty benefits described under “Distributions” above will generally satisfy the certification requirements necessary to avoid the backup withholding tax. We must report annually to the IRS any dividends paid to each non-U.S. holder and the tax withheld, if any, with respect to these dividends. Copies of these reports may be made available to tax authorities in the country where the non-U.S. holder resides.
Backup withholding is not an additional tax. Any amounts withheld from a payment to a holder of common stock under the backup withholding rules can be credited against any U.S. federal income tax liability of the holder and may entitle the holder to a refund from the IRS, provided that the required information is furnished to the IRS in a timely manner.
Foreign account tax compliance act
FATCA will impose a U.S. federal withholding tax of 30% on certain types of U.S. source “withholdable payments” (including dividends and the gross proceeds from the sale or other disposition of U.S. stock) to foreign financial institutions and other non-U.S. entities that fail to comply with certain certification and information reporting requirements regarding U.S. account holders or owners of such institution or entity. The obligation to withhold under FATCA is currently expected to apply to, among other items, (i) dividends on our Class A common stock that are paid after June 30, 2014 and (ii) gross proceeds from the disposition of our Class A common stock paid after December 31, 2016. 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 Class A common stock.
THE PRECEDING DISCUSSION OF U.S. FEDERAL TAX CONSIDERATIONS IS FOR GENERAL INFORMATION ONLY. IT IS NOT TAX ADVICE. EACH PROSPECTIVE INVESTOR SHOULD CONSULT ITS OWN TAX ADVISOR REGARDING THE PARTICULAR U.S. FEDERAL, STATE, LOCAL AND NON-U.S. TAX CONSEQUENCES OF PURCHASING, HOLDING AND DISPOSING OF OUR CLASS A COMMON STOCK, INCLUDING THE CONSEQUENCES OF ANY PROPOSED CHANGE IN APPLICABLE LAWS.
 
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 Underwriting
We and the selling stockholders are offering the shares of Class A common stock described in this prospectus through a number of underwriters. J.P. Morgan Securities LLC, Citigroup Global Markets Inc. and Barclays Capital Inc. are acting as joint book-running managers of the offering and as representatives of the underwriters. We and the selling stockholders have entered into an underwriting agreement with the underwriters. Subject to the terms and conditions of the underwriting agreement, we and the selling stockholders have severally agreed to sell to the underwriters, and each underwriter has severally agreed to purchase, at the public offering price less the underwriting discounts and commissions set forth on the cover page of this prospectus, the number of shares of Class A common stock listed next to its name in the following table:

Name	  	Number of shares	
 	
J.P. Morgan Securities LLC	  		
Citigroup Global Markets Inc.	  		
Barclays Capital Inc.	  		
Allen & Company LLC	  		
Stifel, Nicolaus & Company, Incorporated	  		
Robert W. Baird & Co. Incorporated	  		
MCS Capital Markets LLC	  		
Piper Jaffray & Co.	  		
Raymond James & Associates, Inc.	  		
	  	 	
Total	  		
 	
The underwriters are committed to purchase all the shares of Class A common stock offered by us and the selling stockholders if they purchase any shares. The underwriting agreement also provides that if an underwriter defaults, the purchase commitments of non-defaulting underwriters may also be increased or the offering may be terminated.
The underwriters propose to offer the shares of Class A common stock directly to the public at the initial public offering price set forth on the cover page of this prospectus and to certain dealers at that price less a concession not in excess of $             per share. After the initial public offering of the shares, the offering price and other selling terms may be changed by the underwriters. Sales of shares made outside of the United States may be made by affiliates of the underwriters. The representatives have advised us that the underwriters do not intend to confirm discretionary sales in excess of 5% of the common shares offered in this offering.
The underwriters have an option to buy up to                 additional shares of Class A common stock from us to cover sales of shares by the underwriters which exceed the number of shares specified in the table above. The underwriters have 30 days from the date of this prospectus to exercise this option to purchase additional shares. If any shares are purchased with this option, the underwriters will purchase shares in approximately the same proportion as shown in the table above. If any additional shares of Class A common stock are purchased, the underwriters will offer the additional shares on the same terms as those on which the shares are being offered.
The underwriting discounts and commissions are equal to the public offering price per share of Class A common stock less the amount paid by the underwriters to us and the selling stockholders per share of Class A common stock. The underwriting discounts and commissions are $                 per share.
 
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The following tables show the per share and total underwriting discounts and commissions to be paid to the underwriters assuming both no exercise and full exercise of the underwriters’ option to purchase additional shares.

    	 	Paid by us	 	 	Paid by selling stockholders	 	 	Total	 	
 	 	Without over-
allotment
exercise	 	 	With over-
allotment
exercise	 	 	Without over-
allotment
exercise	 	 	With over-
allotment exercise	 	 	Without over-
allotment
exercise	 	 	With over-
allotment
exercise	 	

Per Share	 	$	            	  	 	$	            	  	 	$	            	  	 	$	            	  	 	$	            	  	 	$	            	  	
							
Total	 	$	 	  	 	$	 	  	 	$	 	  	 	$	 	  	 	$	 	  	 	$	 	  	
 	 	
We estimate that the total expenses of this offering, including registration, filing and listing fees, printing fees and legal and accounting expenses, but excluding the underwriting discounts and commissions, will be approximately $            . We have agreed to reimburse the underwriters for certain expenses, including up to an aggregate of $         in connection with the clearance of this offering with the Financial Industry Regulatory Authority, or FINRA, as set forth in the underwriting agreement.
A prospectus in electronic format may be made available on the web sites maintained by one or more underwriters, or selling group members, if any, participating in the offering. The underwriters may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the representatives to underwriters and selling group members that may make Internet distributions on the same basis as other allocations.
We, the selling stockholders, all of our directors and executive officers and holders of substantially all of our common stock and securities exercisable for or convertible into our common stock outstanding immediately prior to this offering have agreed not to (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, or otherwise transfer or dispose of, directly or indirectly, or file with the SEC a registration statement under the Securities Act relating to, any shares of our common stock or securities convertible into or exchangeable or exercisable for any shares of our common stock (including, without limitation, common stock or such other securities which may be deemed to be beneficially owned by such directors, executive officers and security holders in accordance with the rules and regulations of the SEC and securities which may be issued upon exercise of a stock option or warrant), or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of any shares of our common stock or any such other securities (whether any such transactions described in clause (1) or (2) above is to be settled by the delivery of shares of common stock or such other securities, in cash or otherwise) or (3) in the case of our directors, executive officers and holders of our common stock and securities exercisable for or convertible into our common stock outstanding immediately prior to this offering, make any demand for or exercise any right with respect to the registration of any shares of our common stock or any security convertible into or exercisable or exchangeable for our common stock, in each case without the prior written consent of J.P. Morgan Securities LLC for a period of 180 days after the date of this prospectus.
In our case, such restrictions shall not apply to:
 
Ÿ 	 	the shares of our Class A common stock to be sold in this offering;	
 
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Ÿ 	 	any shares of our common stock issued upon the exercise of options or warrants or the conversion of a security outstanding on the date of the underwriting agreement and described in this prospectus;	
 
Ÿ 	 	the grant of options or the issuance of shares of common stock by us to our employees, officers, directors, advisors or consultants pursuant to employee benefit plans in effect on the date of the underwriting agreement and as described in this prospectus; or	
 
Ÿ 	 	the filing by us of a registration statement with the SEC on Form S-8 in respect of any shares issued under or the grant of any award pursuant to an employee benefit plan described herein.	
In the case of our directors, executive officers and holders of our common stock, and subject to certain conditions, such restrictions shall not apply to:
 
Ÿ 	 	the sale of shares of our Class A common stock to the underwriters;	
 
Ÿ 	 	sales of shares of our Class A common stock or other securities acquired in open market transactions after the completion of this offering, provided, that no filing under Section 16 of the Exchange Act or other public announcement is required or voluntarily made in connection with subsequent sales of the acquired securities;	
 
Ÿ 	 	transfers of shares of our common stock or any securities convertible into or exercisable or exchangeable for common stock (1) to the spouse, domestic partner, parent, child or grandchild of the director, executive officer or security holder, or to a trust for the benefit of such spouse, domestic partner, parent, child or grandchild, (2) by bona fide gift, will or intestacy, (3) that occurs by operation of law, (4) if the director, executive officer or security holder is a corporation, partnership or other business entity (a) to another corporation, partnership or other business entity that controls, is controlled by or is under common control with it or (b) as part of a disposition, transfer or distribution without consideration by such director, executive officer or security holder to its equity holders, or (5) if the director, executive officer or security holder is a trust, to a trustee or beneficiary of the trust, provided that, in each case, the transferee agrees to be bound by the terms of the lock-up agreement and no filing under Section 16 of the Exchange Act reporting a reduction in beneficial ownership or other public announcement is required or voluntarily made;	
 
Ÿ 	 	transfers of shares of our common stock or any security convertible into common stock to us upon a vesting event of our securities or upon the exercise of options or warrants to purchase our securities, in each case on a “cashless” or “net exercise” basis or to cover tax withholding obligations of the director, executive officer or security holder in connection with such vesting or exercise, but only to the extent that such right expires during the lock up period;	
 
Ÿ 	 	the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of our common stock; provided that such plan does not provide for the transfer of common stock during the lock-up period and no public announcement or filing under the Exchange Act is required or made voluntarily by the director, executive officer, security holder or us; or	
 
Ÿ 	 	transfers of shares of our common stock or any security convertible into or exercisable or exchangeable for our common stock pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of our common stock involving a change of control of our company.	
 
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We and the selling stockholders have agreed to indemnify the underwriters and their controlling persons, and we have agreed to indemnify Piper Jaffray & Co. and its controlling persons, in its capacity as qualified independent underwriter, against certain liabilities, including liabilities under the Securities Act of 1933.
We have applied to list our Class A common stock on the NASDAQ Global Select Market under the symbol “GPRO.”
In connection with this offering, the underwriters may engage in stabilizing transactions, which involves making bids for, purchasing and selling shares of Class A common stock in the open market for the purpose of preventing or retarding a decline in the market price of the Class A common stock while this offering is in progress. These stabilizing transactions may include making short sales of the Class A common stock, which involves the sale by the underwriters of a greater number of shares of Class A common stock than they are required to purchase in this offering, and purchasing shares of Class A common stock on the open market to cover positions created by short sales. Short sales may be “covered” shorts, which are short positions in an amount not greater than the underwriters’ option to purchase additional shares referred to above, or may be “naked” shorts, which are short positions in excess of that amount. The underwriters may close out any covered short position either by exercising their option to purchase additional shares, in whole or in part, or by purchasing shares in the open market. In making this determination, the underwriters will consider, among other things, the price of shares available for purchase in the open market compared to the price at which the underwriters may purchase shares through the over-allotment option. 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 Class A common stock in the open market that could adversely affect investors who purchase in this offering. To the extent that the underwriters create a naked short position, they will purchase shares in the open market to cover the position.
The underwriters have advised us that, pursuant to Regulation M of the Securities Act, they may also engage in other activities that stabilize, maintain or otherwise affect the price of the Class A common stock, including the imposition of penalty bids. This means that if the representatives of the underwriters purchase Class A common stock in the open market in stabilizing transactions or to cover short sales, the representatives can require the underwriters that sold those shares as part of this offering to repay the underwriting discount received by them.
These activities may have the effect of raising or maintaining the market price of the Class A common stock or preventing or retarding a decline in the market price of the Class A common stock, and, as a result, the price of the Class A common stock may be higher than the price that otherwise might exist in the open market. If the underwriters commence these activities, they may discontinue them at any time. The underwriters may carry out these transactions on the                 , in the over-the-counter market or otherwise.
Prior to this offering, there has been no public market for our Class A common stock. The initial public offering price will be determined by negotiations between us and the representatives of the underwriters. In determining the initial public offering price, we and the representatives of the underwriters expect to consider a number of factors including:
 
Ÿ 	 	the information set forth in this prospectus and otherwise available to the representatives;	
 
Ÿ 	 	our prospects and the history and prospects for the industry in which we compete;	
 
Ÿ 	 	an assessment of our management;	
 
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Ÿ 	 	our prospects for future earnings;	
 
Ÿ 	 	the general condition of the securities markets at the time of this offering;	
 
Ÿ 	 	the recent market prices of, and demand for, publicly traded common stock of generally comparable companies; and	
 
Ÿ 	 	other factors deemed relevant by the underwriters and us.	
Neither we, the selling stockholders, nor the underwriters can assure investors that an active trading market will develop for our Class A common stock, or that the shares will trade in the public market at or above the initial public offering price.
Relationships with underwriters
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, investment research, principal investment, hedging, financing, and brokerage activities. Certain of the underwriters and their affiliates have provided in the past to us and our affiliates and may provide from time to time in the future certain commercial banking, financial advisory, investment banking and other services for us and such affiliates in the ordinary course of their business, for which they have received and may continue to receive customary fees and commissions. Specifically, affiliates of J.P. Morgan Securities LLC, Citigroup Global Markets Inc. and Barclays Capital Inc. serve as lenders and an affiliate of J.P. Morgan Securities LLC serves as administrative agent under our credit facility. We expect to use more than 5% of the net proceeds from the sale of our Class A common stock to fully repay our term loan under our facility. See “Use of proceeds.” Accordingly, this offering is being made in compliance with the requirements of Rule 5121 of FINRA’s conduct rules. See “Conflicts of interest” for a more detailed discussion of potential conflicts of interest. In addition, from time to time, certain of the underwriters and their affiliates may effect transactions for their own account or the account of customers, and hold on behalf of themselves or their customers, long or short positions in our debt or equity securities or loans.
Directed share program
At our request, the underwriters have reserved for sale, at the initial public offering price, up to     % of the Class A common stock offered hereby for sale to certain business associates of ours. None of our directors or executive officers will participate in the directed share program. We will offer these shares to the extent permitted under applicable regulations in the United States through a directed share program. The number of shares of our Class A common stock available for sale to the general public will be reduced by the number of directed shares purchased by participants in the program. Any directed shares not purchased will be offered by the underwriters to the general public on the same terms as the other shares of our Class A common stock offered hereby. We have agreed to indemnify the underwriters against certain liabilities and expenses, including liabilities under the Securities Act of 1933, as amended, in connection with the sale of shares through a directed share program.
LOYAL3 Platform
At our request, the underwriters have reserved up to 1.5% of the Class A common stock offered hereby to be offered through the LOYAL3 platform at the initial public offering price. Purchases
 
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through the LOYAL3 platform will be in dollar amounts and may include fractional shares. The LOYAL3 platform is designed to facilitate participation of individual purchasers in initial public offerings in amounts starting at $100. Any purchase of our Class A common stock in this offering through the LOYAL3 platform will be at the same initial public offering price, and at the same time, as any other purchases in this offering, including purchases by institutions and other large investors. Individual investors, including employees, partners and consumers, in the United States who are interested in purchasing Class A common stock in this offering through the LOYAL3 platform may go to LOYAL3’s website for information about how to become a customer of LOYAL3, which is required to purchase Class A common stock through the LOYAL3 platform. The LOYAL3 platform is available fee-free to investors. Sales of our Class A common stock by investors using the LOYAL3 platform will be completed through a batch or combined order process typically only once per day. The LOYAL3 platform and information on the LOYAL3 website do not form a part of this prospectus. The LOYAL3 platform is administered by LOYAL3 Securities, Inc., a U.S.-registered broker-dealer, that is unaffiliated with GoPro.
Selling restrictions outside the United States
Other than in the United States, no action has been taken by us or the underwriters that would permit a public offering of the securities offered by this prospectus in any jurisdiction where action for that purpose is required. The shares of Class A common stock offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.
This document is only being distributed to and is only directed at (i) persons who are outside the United Kingdom or (ii) to investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, referred to as the Order, or (iii) high net worth entities, and other persons to whom it may lawfully be communicated, falling with Article 49(2)(a) to (d) of the Order, all such persons together being referred to as relevant persons. The shares of Class A common stock are only available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire such securities will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents.
Notice to prospective investors in the European Economic Area
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive, each referred to as a Relevant Member State, from and including the date, or Relevant Implementation Date, on which the European Union Prospectus Directive, or EU Prospectus Directive, was implemented in that Relevant Member State, an offer of shares of common stock described in this prospectus may not be made to the public in that Relevant Member State prior to the publication of a prospectus in relation to the shares which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that
 
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Relevant Member State, all in accordance with the EU Prospectus Directive, except that, with effect from and including the Relevant Implementation Date, an offer of securities described in this prospectus may be made to the public in that Relevant Member State at any time:
 
Ÿ 	 	to any legal entity which is a qualified investor as defined under the EU Prospectus Directive;	
 
Ÿ 	 	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 EU Prospectus Directive), as permitted under the EU Prospectus Directive, subject to obtaining the prior consent of J.P. Morgan Securities LLC for any such offer; or	
 
Ÿ 	 	in any other circumstances falling within Article 3(2) of the EU Prospectus Directive, provided that no such offer of securities described in this prospectus shall result in a requirement for the publication by us of a prospectus pursuant to Article 3 of the EU Prospectus Directive.	
For the purposes of this provision, the expression an “offer of securities to the public” in relation to any securities 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 the shares of common stock to be offered so as to enable an investor to decide to purchase or subscribe for the shares, as the same may be varied in that Member State by any measure implementing the EU Prospectus Directive in that Member State. The expression “EU Prospectus Directive” means Directive 2003/71/EC (and any amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in each Relevant Member State, and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.
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, or the 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 prospectus 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 prospectus nor any other offering or marketing material relating to the offering, the Company, 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 FINMA, 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 shares.
Notice to prospective investors in 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
 
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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.
Notice to prospective investors in 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, or the 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 6 months after that corporation or that trust has acquired the shares under Section 275 except: (1) 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; (2) where no consideration is given for the transfer; or (3) by operation of law.
Notice to prospective investors in 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.
 
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 Conflicts of interest
We expect at least 5% of the net proceeds from the sale of our Class A common stock will be used to fully repay our term loan under our credit facility, which had an outstanding balance of $114.0 and $111.0 million as of December 31, 2013 and March 31, 2014, respectively, owed by us to the lenders under our credit facility, including affiliates of J.P. Morgan Securities LLC, Citigroup Global Markets Inc. and Barclays Capital Inc. See “Use of proceeds” and “Management’s discussion and analysis of financial condition and results of operations—Liquidity and capital resources” for additional information regarding our credit facility. Accordingly, this offering is being made in compliance with the requirements of Rule 5121 of FINRA’s conduct rules. This rule provides generally that if at least 5% of the net proceeds from the sale of securities, not including underwriting compensation, is used to reduce or retire the balance of a loan or credit facility extended by the underwriters or their affiliates, a “qualified independent underwriter” meeting certain standards set forth by FINRA must participate in the preparation of this prospectus and exercise the usual standards of due diligence with respect thereto. Piper Jaffray & Co. is assuming the responsibilities of acting as the qualified independent underwriter in connection with this offering and in conducting due diligence. None of J.P. Morgan Securities LLC, Citigroup Global Markets Inc. or Barclays Capital Inc. will confirm sales of the securities to any account over which they exercise discretionary authority without the prior written approval of the customer.
 Legal matters
Fenwick & West LLP, Mountain View, California will pass upon the validity of the issuance of the shares of Class A common stock offered by this prospectus. Fenwick & West LLP beneficially owns 26,015 shares of our redeemable convertible preferred stock that will convert to Class B common stock in connection with the closing of this offering, representing approximately 0.02% of our outstanding shares of common stock as of December 31, 2013. Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto, California, will act as counsel to the underwriters.
 Experts
The consolidated financial statements of GoPro, Inc. as of December 31, 2013 and 2012, and for each of the three years in the period ended December 31, 2013, included in this prospectus have been so included in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
 Where you can find additional information
We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the Class A common stock. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement, some items of which are 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 Class A common stock, we refer you to the registration statement, including the exhibits and the consolidated
 
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financial statements and notes filed as a part of the registration statement. Statements contained in this prospectus concerning the contents of any contract or any other document are 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 in this prospectus relating to a contract or document filed as an exhibit is qualified in all respects by the filed exhibit. The exhibits to the registration statement should be reviewed for the complete contents of these contracts and documents. A copy of the registration statement, including the exhibits and the financial statements and notes filed as a part of the registration statement, may be inspected without charge at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549, and copies of all or any part of the registration statement may be obtained from the SEC upon the payment of fees prescribed by it. You may call the SEC at 1-800-SEC-0330 for more information on the operation of the public reference facilities. The SEC maintains a website at http://www.sec.gov that contains reports, proxy and information statements and other information regarding companies that file electronically with it.
As a result of this offering, we will become subject to the information and reporting requirements of the Exchange Act 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.
 
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GoPro, Inc.
 Index to consolidated financial statements

 	 	Page(s)	 	
		
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 and Stockholders’ Equity (Deficit)	 	 	F-5	  	
		
Consolidated Statements of Cash Flows	 	 	F-6	  	
		
Notes to Consolidated Financial Statements	 	 	F-7	  	
 
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 Report of independent registered public accounting firm
To the Board of Directors and Stockholders of GoPro, Inc.:
In our opinion, the accompanying Consolidated Balance Sheets and the related Consolidated Statements of Operations, Statements of Redeemable Convertible Preferred Stock and Stockholders’ Equity (Deficit) and Statement of Cash Flows present fairly, in all material respects, the financial position of GoPro, Inc. and its subsidiaries at December 31, 2013 and December 31, 2012, 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. 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 of these statements 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. An audit 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, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
/s/ PRICEWATERHOUSECOOPERS LLP
San Jose, California
March 14, 2014
 
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GoPro, Inc.
 Consolidated balance sheets

   	  	December 31,	 	 	March 31,
2014	 	 	Pro forma
March 31,
2014
(note 2)	 	
(in thousands, except share and per share amounts)	  	2012	 	 	2013	 	 			 			
 	 	
 	  	 	 	 	 	 	 	(unaudited)	 	
					
Assets	  				 				 				 				
Current assets:	  				 				 				 				
Cash	  	$	36,485	  	 	$	101,410	  	 	$	111,215	  	 				
Accounts receivable, net of allowance for doubtful accounts of $262, $520 and $382 at December 31, 2012, 2013 and March 31, 2014 (unaudited), respectively	  	 	80,197	  	 	 	122,669	  	 	 	47,310	  	 				
Inventories, net	  	 	60,412	  	 	 	111,994	  	 	 	90,186	  	 				
Prepaid expenses and other current assets	  	 	21,724	  	 	 	21,967	  	 	 	24,589	  	 				
	  	 	 	 	
Total current assets	  	 	198,818	  	 	 	358,040	  	 	 	273,300	  	 				
Property and equipment, net	  	 	22,440	  	 	 	32,111	  	 	 	34,065	  	 				
Intangible assets and goodwill	  	 	8,449	  	 	 	17,365	  	 	 	17,080	  	 				
Other long-term assets	  	 	16,958	  	 	 	32,155	  	 	 	30,755	  	 				
	  	 	 	 	
Total assets	  	$	246,665	  	 	$	439,671	  	 	$	355,200	  	 				

Liabilities, Redeemable Convertible Preferred Stock and Stockholders’ Equity (Deficit)	  				 				 				 				
Current liabilities:	  				 				 				 				
Accounts payable	  	$	53,746	  	 	$	126,423	  	 	$	55,673	  	 				
Accrued liabilities	  	 	48,714	  	 	 	86,391	  	 	 	70,083	  	 				
Deferred revenue	  	 	7,380	  	 	 	7,781	  	 	 	8,689	  	 				
Income taxes payable	  	 	3,578	  	 	 	19,702	  	 	 	8,556	  	 				
Notes payable and current portion of long-term debt	  	 	15,782	  	 	 	60,297	  	 	 	63,300	  	 				
	  	 	 	 	
Total current liabilities	  	 	129,200	  	 	 	300,594	  	 	 	206,301	  	 				
Long-term debt, less current portion	  	 	113,613	  	 	 	53,315	  	 	 	47,366	  	 				
Other long-term liabilities	  	 	6,455	  	 	 	13,930	  	 	 	13,929	  	 				
	  	 	 	 	
Total liabilities	  	 	249,268	  	 	 	367,839	  	 	 	267,596	  	 				
	  	 	 	 	
Commitments and contingencies (Note 12)	  				 				 				 				
Redeemable convertible preferred stock—$0.0001 par value; 36,000,000 shares authorized: 30,523,036 shares issued and outstanding as of December 31, 2012, 2013 and March 31, 2014 (unaudited), respectively; no shares issued or outstanding pro forma (unaudited); liquidation preference of $77,326 as of December 31, 2012, 2013 and March 31, 2014 (unaudited), respectively	  	 	77,138	  	 	 	77,198	  	 	 	77,213	  	 	 	—	  	
Stockholders’ equity (deficit)	  				 				 				 				
Common stock—$0.0001 par value; 150,000,000 shares authorized:	  				 				 				 				
80,714,412, 81,420,040 and 81,899,442 shares issued and outstanding as of December 31, 2012, 2013 and March 31, 2014 (unaudited), respectively, and 112,422,478 pro forma (unaudited) shares issued and outstanding	  	 	8	  	 	 	8	  	 	 	8	  	 	 	11	  	
Additional paid-in capital	  	 	471	  	 	 	14,510	  	 	 	19,218	  	 	 	96,428	  	
Accumulated deficit	  	 	(80,220	) 	 	 	(19,884	) 	 	 	(8,835	) 	 	 	(8,835	) 	
	  	 	 	 	
Total stockholders’ equity (deficit)	  	 	(79,741	) 	 	 	(5,366	) 	 	 	10,391	  	 	$	87,604	  	
	  	 	 	 	
Total liabilities, redeemable convertible preferred stock and stockholders’ equity (deficit)	  	$	246,665	  	 	$	439,671	  	 	$	355,200	  	 				
 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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Table of Contents
GoPro, Inc.
 Consolidated statements of operations

   	 	Year ended December 31,	 	 	Three months ended
March 31,	 	
(in thousands, except per share amounts)	 	2011	 	 	2012	 	 	2013	 	 	2013	 	 	2014	 	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	(unaudited)	 	
Revenue	 	$	234,238	  	 	$	526,016	  	 	$	985,737	  	 	$	255,057	  	 	$	235,716	  	
Cost of revenue	 	 	111,683	  	 	 	298,530	  	 	 	623,953	  	 	 	165,628	  	 	 	139,202	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Gross profit	 	 	122,555	  	 	 	227,486	  	 	 	361,784	  	 	 	89,429	  	 	 	96,514	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating expenses:	 				 				 				 				 				
Research and development	 	 	8,644	  	 	 	36,115	  	 	 	73,737	  	 	 	12,012	  	 	 	28,739	  	
Sales and marketing	 	 	64,375	  	 	 	116,855	  	 	 	157,771	  	 	 	35,673	  	 	 	41,341	  	
General and administrative	 	 	10,757	  	 	 	20,899	  	 	 	31,573	  	 	 	6,988	  	 	 	9,878	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total operating expenses	 	 	83,776	  	 	 	173,869	  	 	 	263,081	  	 	 	54,673	  	 	 	79,958	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating income	 	 	38,779	  	 	 	53,617	  	 	 	98,703	  	 	 	34,756	  	 	 	16,556	  	
Other income (expense), net	 	 	12	  	 	 	(407	) 	 	 	(7,374	) 	 	 	(1,694	) 	 	 	(1,625	) 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Income before income taxes	 	 	38,791	  	 	 	53,210	  	 	 	91,329	  	 	 	33,062	  	 	 	14,931	  	
Income tax expense	 	 	14,179	  	 	 	20,948	  	 	 	30,751	  	 	 	10,027	  	 	 	3,882	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income	 	$	24,612	  	 	$	32,262	  	 	$	60,578	  	 	$	23,035	  	 	$	11,049	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Less: common stock distributed earnings	 	 	(5,071	) 	 	 	(84,828	) 	 	 	—	  	 	 	—	  	 	 	—	  	
Less: preferred stock distributed earnings, including accumulated accretion	 	 	(5,815	) 	 	 	(26,927	) 	 	 	—	  	 	 	—	  	 	 	—	  	
Less: unvested early exercised options and restricted stock distributed earnings	 	 	—	  	 	 	(454	) 	 	 	—	  	 	 	—	  	 	 	—	  	
Less: undistributed earnings allocable to:
holders of preferred stock and unvested early exercised options and restricted stock	 	 	—	  	 	 	—	  	 	 	(16,727	) 	 	 	(6,379	) 	 	 	(3,040	) 	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Undistributed net income (loss) attributable to common stockholders—basic	 	$	13,726	  	 	$	(79,947	) 	 	$	43,851	  	 	$	16,656	  	 	$	8,009	  	
Add: adjustments to net income for dilutive securities allocable to:
holders of preferred stock and unvested early exercised options and restricted stock	 	 	—	  	 	 	—	  	 	 	2,309	  	 	 	872	  	 	 	443	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Undistributed net income (loss) attributable to common stockholders—diluted	 	$	13,726	  	 	$	(79,947	) 	 	$	46,160	  	 	$	17,528	  	 	$	8,452	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Distributed earnings to common stockholders	 	$	5,071	  	 	$	84,828	  	 	 	—	  	 	 	—	  	 	 	—	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Weighted-average shares used to compute net income per share attributable to common stockholders:	 				 				 				 				 				
Basic	 	 	73,481	  	 	 	74,226	  	 	 	81,018	  	 	 	80,768	  	 	 	81,582	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Diluted	 	 	78,551	  	 	 	74,226	  	 	 	98,941	  	 	 	98,457	  	 	 	100,783	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income per share attributable to common stockholders:	 				 				 				 				 				
Basic	 	$	0.26	  	 	$	0.07	  	 	$	0.54	  	 	$	0.21	  	 	$	0.10	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Diluted	 	$	0.24	  	 	$	0.07	  	 	$	0.47	  	 	$	0.18	  	 	$	0.08	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Pro forma net income per share attributable to common stockholders (unaudited):	 				 				 				 				 				
Basic	 				 				 	$	0.54	  	 				 	$	0.10	  	
	 				 				 	 	 	 	 				 	 	 	 	
Diluted	 				 				 	$	0.47	  	 				 	$	0.08	  	
	 				 				 	 	 	 	 				 	 	 	 	
Pro forma weighted-average shares used to compute net income per share attributable to common stockholders (unaudited):	 				 				 				 				 				
Basic	 				 				 	 	111,541	  	 				 	 	112,105	  	
	 				 				 	 	 	 	 				 	 	 	 	
Diluted	 				 				 	 	129,464	  	 				 	 	131,306	  	
	 				 				 	 	 	 	 				 	 	 	 	
Supplemental pro forma net income per share attributable to common stockholders (unaudited):	 				 				 				 				 				
Basic	 				 				 				 				 				
	 				 				 	 	 	 	 				 	 	 	 	
Diluted	 				 				 				 				 				
	 				 				 	 	 	 	 				 	 	 	 	
Supplemental pro forma weighted-average shares used to compute net income per share attributable to common stockholders (unaudited):	 				 				 				 				 				
Basic	 				 				 				 				 				
	 				 				 	 	 	 	 				 	 	 	 	
Diluted	 				 				 				 				 				
 	 	 	 	 	 	 	 	 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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GoPro, Inc.
 Consolidated statements of redeemable convertible preferred stock and stockholders’ equity (deficit)

   	 	Redeemable
convertible
preferred stock	 	 	Common stock	 	 	Additional
paid-in
capital	 	 	Retained
earnings
(accumulated
deficit)	 	 	Total
stockholders’
equity
(deficit)	 	
(in thousands)	 	Shares	 	 	Amount	 	 	Shares	 	 	Amount	 	 			 			 			
 	 	
Balances at December 31, 2010	 	 	—	  	 	 	—	  	 	 	73,160	  	 	 	263	  	 	 	674	  	 	 	11,465	  	 	 	12,402	  	
Reclassification of retained earnings due to termination of S corporation election	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	9,108	  	 	 	(9,108	) 	 	 	—	  	
Issuance of preferred stock, net of issuance costs	 	 	7,894	  	 	 	19,663	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	
Preferred stock dividend to common stockholders	 	 	26,840	  	 	 	67,995	  	 	 	—	  	 	 	—	  	 	 	(10,030	) 	 	 	(57,965	) 	 	 	(67,995	) 	
Preferred stock dividend accretion	 	 	—	  	 	 	3,432	  	 	 	—	  	 	 	—	  	 	 	(3,432	) 	 	 	—	  	 	 	(3,432	) 	
Accretion of preferred stock issuance costs	 	 	—	  	 	 	56	  	 	 	—	  	 	 	—	  	 	 	(56	) 	 	 	—	  	 	 	(56	) 	
Exercise of stock options	 	 	—	  	 	 	—	  	 	 	646	  	 	 	11	  	 	 	—	  	 	 	—	  	 	 	11	  	
Stock-based compensation expense	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	8,975	  	 	 	—	  	 	 	8,975	  	
Stock options assumed in acquisition	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	339	  	 	 	—	  	 	 	339	  	
Stockholder contribution	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	6,120	  	 	 	—	  	 	 	6,120	  	
Cash distribution to stockholders	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	(5,071	) 	 	 	—	  	 	 	(5,071	) 	
Reincorporation in Delaware and change in par value	 	 	—	  	 	 	—	  	 	 	—	  	 	 	(267	) 	 	 	267	  	 	 	—	  	 	 	—	  	
Net income	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	24,612	  	 	 	24,612	  	
	 	 	 	 	
Balances at December 31, 2011	 	 	34,734	  	 	 	91,146	  	 	 	73,806	  	 	 	7	  	 	 	6,894	  	 	 	(30,996	) 	 	 	(24,095	) 	
Preferred stock dividend accretion	 	 	—	  	 	 	4,207	  	 	 	—	  	 	 	—	  	 	 	(4,207	) 	 	 	—	  	 	 	(4,207	) 	
Accretion of preferred stock issuance costs	 	 	—	  	 	 	67	  	 	 	—	  	 	 	—	  	 	 	(67	) 	 	 	—	  	 	 	(67	) 	
Exercise of stock options	 	 	—	  	 	 	—	  	 	 	2,565	  	 	 	—	  	 	 	1,906	  	 	 	—	  	 	 	1,906	  	
Vesting of shares related to early exercise of common stock options	 	 	—	  	 	 	—	  	 	 	132	  	 	 	—	  	 	 	201	  	 	 	—	  	 	 	201	  	
Excess tax benefit from stock-based compensation	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	4,182	  	 	 	—	  	 	 	4,182	  	
Stock-based compensation expense	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	9,156	  	 	 	—	  	 	 	9,156	  	
Conversion of preferred stock to common stock	 	 	(4,211	) 	 	 	(11,569	) 	 	 	4,211	  	 	 	1	  	 	 	11,568	  	 	 	—	  	 	 	11,569	  	
Cash distribution to stockholders	 	 	—	  	 	 	(6,713	) 	 	 	—	  	 	 	—	  	 	 	(29,162	) 	 	 	(81,486	) 	 	 	(110,648	) 	
Net income	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	32,262	  	 	 	32,262	  	
	 	 	 	 	
Balances at December 31, 2012	 	 	30,523	  	 	 	77,138	  	 	 	80,714	  	 	 	8	  	 	 	471	  	 	 	(80,220	) 	 	 	(79,741	) 	
Accretion of preferred stock issuance costs	 	 	—	  	 	 	60	  	 	 	—	  	 	 	—	  	 	 	(60	) 	 	 	—	  	 	 	(60	) 	
Exercise of stock options	 	 	—	  	 	 	—	  	 	 	346	  	 	 	—	  	 	 	769	  	 	 	—	  	 	 	769	  	
Vesting of shares related to restricted stock and early exercise of common stock options	 	 	—	  	 	 	—	  	 	 	267	  	 	 	—	  	 	 	379	  	 	 	—	  	 	 	379	  	
Stock-based compensation expense	 	 	—	  	 	 	—	  	 	 	—	  	 				 	 	10,887	  	 	 	—	  	 	 	10,887	  	
Retirement of common stock	 				 			 	 	 	(15	) 	 	 	—	  	 	 	—	  	 	 	(242	) 	 	 	(242	) 	
Issuance of common stock for acquisition	 	 	—	  	 	 	—	  	 	 	108	  	 	 	—	  	 	 	1,741	  	 	 	—	  	 	 	1,741	  	
Excess tax benefit from stock-based compensation	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	323	  	 	 	—	  	 	 	323	  	
Net income	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	60,578	  	 	 	60,578	  	
	 	 	 	 	
Balances at December 31, 2013	 	 	30,523	  	 	 	77,198	  	 	 	81,420	  	 	 	8	  	 	 	14,510	  	 	 	(19,884	) 	 	 	(5,366	) 	
Accretion of preferred stock issuance costs (unaudited)	 	 	—	  	 	 	15	  	 	 	—	  	 	 	—	  	 	 	(15	) 	 	 	—	  	 	 	(15	) 	
Exercise of stock options (unaudited)	 	 	—	  	 	 	—	  	 	 	390	  	 	 	—	  	 	 	522	  	 	 	—	  	 	 	522	  	
Vesting of shares related to restricted stock and early exercise of common stock options (unaudited)	 	 	—	  	 	 	—	  	 	 	89	  	 	 	—	  	 	 	95	  	 	 	—	  	 	 	95	  	
Stock-based compensation expense (unaudited)	 	 	—	  	 	 	—	  	 	 	—	  	 				 	 	4,037	  	 	 	—	  	 	 	4,037	  	
Excess tax benefit from stock-based compensation (unaudited)	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	69	  	 	 	—	  	 	 	69	  	
Net income (unaudited)	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	11,049	  	 	 	11,049	  	
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balances at March 31, 2014 (unaudited)	 	 	30,523	  	 	$	77,213	  	 	 	81,899	  	 	$	8	  	 	$	19,218	  	 	$	(8,835	) 	 	$	10,391	  	
 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
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Table of Contents
GoPro, Inc.
 Consolidated statements of cash flows

   	  	Years ended December 31,	 	 	Three months ended
March 31,	 	
(in thousands) 	  	2011	 	 	2012	 	 	2013	 	 	2013	 	 	2014	 	
 	 	
 	  	 	 	 	 	 	 	 	 	 	(unaudited)	 	
Operating activities:	  				 				 				 				
Net income	  	$	24,612	  	 	$	32,262	  	 	$	60,578	  	 	$	23,035	  	 	$	11,049	  	
						
Adjustments to reconcile net income to net cash provided by operating activities	  				 				 				 				 				
Depreciation and amortization	  	 	1,517	  	 	 	3,975	  	 	 	12,034	  	 	 	2,209	  	 	 	3,811	  	
Deferred taxes	  	 	(6,831	) 	 	 	(2,121	) 	 	 	(8,129	) 	 	 	(346	) 	 	 	(330	) 	
Excess tax benefit from stock-based compensation	  	 	—	  	 	 	(4,182	) 	 	 	(323	) 	 	 	—	  	 	 	(69	) 	
Stock-based compensation	  	 	8,975	  	 	 	9,156	  	 	 	10,887	  	 	 	2,095	  	 	 	4,037	  	
Provision for doubtful accounts	  	 	42	  	 	 	736	  	 	 	664	  	 	 	63	  	 	 	—	  	
Provision for inventory obsolescence	  	 	760	  	 	 	1,955	  	 	 	4,081	  	 	 	2,212	  	 	 	78	  	
Net loss on disposals of fixed assets and other	  	 	127	  	 	 	57	  	 	 	1,224	  	 	 	279	  	 	 	247	  	
Changes in operating assets and liabilities, net of effect of acquisitions:	  				 				 				 				 				
Accounts receivable	  	 	(19,565	) 	 	 	(53,508	) 	 	 	(43,117	) 	 	 	21,346	  	 	 	75,359	  	
Inventories	  	 	(12,737	) 	 	 	(43,718	) 	 	 	(55,664	) 	 	 	(26,919	) 	 	 	21,729	  	
Prepaids and other assets	  	 	(8,381	) 	 	 	(8,510	) 	 	 	(15,355	) 	 	 	(2,680	) 	 	 	1,068	  	
Accounts payable and accrued liabilities	  	 	24,916	  	 	 	67,802	  	 	 	135,197	  	 	 	11,386	  	 	 	(100,173	) 	
Deferred revenue	  	 	1,794	  	 	 	4,462	  	 	 	400	  	 	 	(1,555	) 	 	 	908	  	
	  	 	 	 	
Net cash provided by operating activities	  	 	15,229	  	 	 	8,366	  	 	 	102,477	  	 	 	31,125	  	 	 	17,714	  	

Investing activities:	  				 				 				 				 				
Purchase of property and equipment	  	 	(1,954	) 	 	 	(17,795	) 	 	 	(18,325	) 	 	 	(5,844	) 	 	 	(4,701	) 	
Net cash used in acquisitions	  	 	(7,955	) 	 	 	—	  	 	 	(2,912	) 	 	 	—	  	 	 	—	  	
	  	 	 	 	
Net cash used for investing activities	  	 	(9,909	) 	 	 	(17,795	) 	 	 	(21,237	) 	 	 	(5,844	) 	 	 	(4,701	) 	

Financing activities:	  				 				 				 				 				
Proceeds from issuance of common stock	  	 	11	  	 	 	2,762	  	 	 	527	  	 	 	88	  	 	 	522	  	
Proceeds from issuance of debt and revolving credit facility	  	 	—	  	 	 	139,389	  	 	 	30,000	  	 	 	—	  	 	 	—	  	
Proceeds from issuance of Series A preferred stock, net of issuance costs	  	 	19,663	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	
Excess tax benefit from stock-based compensation	  	 	—	  	 	 	4,182	  	 	 	323	  	 	 	—	  	 	 	69	  	
Payment of debt issuance costs and deferred public offering costs	  	 	—	  	 	 	(1,776	) 	 	 	(1,165	) 	 	 	(104	) 	 	 	(799	) 	
Repayment of debt	  	 	(380	) 	 	 	(10,380	) 	 	 	(46,000	) 	 	 	(11,500	) 	 	 	(3,000	) 	
Cash distribution to stockholders	  	 	(5,071	) 	 	 	(117,361	) 	 	 	—	  	 	 	—	  	 	 	—	  	
Stockholder contribution	  	 	6,120	  	 	 	—	  	 	 	—	  	 	 	—	  	 				
	  	 	 	 	
Net cash provided by (used for) financing activities	  	 	20,343	  	 	 	16,816	  	 	 	(16,315	) 	 	 	(11,516	) 	 	 	(3,208	) 	
	  	 	 	 	
Net increase in cash	  	 	25,663	  	 	 	7,387	  	 	 	64,925	  	 	 	13,765	  	 	 	9,805	  	
Cash:	  				 				 				 				 				
Beginning of year	  	 	3,435	  	 	 	29,098	  	 	 	36,485	  	 	 	36,485	  	 	 	101,410	  	
	  	 	 	 	
End of period	  	$	29,098	  	 	$	36,485	  	 	$	101,410	  	 	$	50,250	  	 	$	111,215	  	
	  	 	 	 	
Supplementary cash flow disclosure:	  				 				 				 				 				
Cash paid for	  				 				 				 				 				
Interest	  	$	31	  	 	$	284	  	 	$	4,904	  	 	$	1,188	  	 	$	996	  	
Income taxes	  	 	10,280	  	 	 	31,317	  	 	 	2,831	  	 	 	92	  	 	 	14,855	  	
Non-cash investing and financing activities:	  				 				 				 				 				
Accretion of preferred stock dividends	  	 	3,432	  	 	 	4,207	  	 	 	—	  	 	 	—	  	 	 	—	  	
Conversion of preferred stock to common stock	  	 	—	  	 	 	11,569	  	 	 	—	  	 	 	—	  	 	 	—	  	
Purchases of property and equipment included in accounts payable and accrued expenses	  	 	785	  	 	 	4,621	  	 	 	2,937	  	 	 	1,436	  	 	 	810	  	
Vesting of shares related to restricted stock and early exercise of common stock options	  	 	—	  	 	 	201	  	 	 	379	  	 	 	94	  	 	 	95	  	
Preferred stock dividend to common stockholders	  	 	67,995	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	
Notes payable and stock options assumed in acquisition of CineForm	  	 	1,099	  	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	
Retirement of common stock	  	 	—	  	 	 	—	  	 	 	242	  	 	 	—	  	 	 	—	  	
Deferred public offering costs not yet paid	  	 	—	  	 	 	—	  	 	 	490	  	 	 	88	  	 	 	1,323	  	
 	 	
The accompanying notes are an integral part of these consolidated financial statements.
 
F-6

Table of Contents
GoPro, Inc.
 Notes to consolidated financial statements
 
1. Business overview
GoPro, Inc. (GoPro or the Company) was incorporated as Woodman Labs, Inc. in California on February 14, 2004 as an S Corporation. The Company produces mountable and wearable cameras and accessories, which the Company refers to as capture devices. The Company’s products are sold globally through retailers, wholesale distributors and on the Company’s website. In 2012, the Company established wholly-owned subsidiaries in Hong Kong, Germany and the Cayman Islands. The Company’s corporate headquarters are located in San Mateo, California with additional operational support offices in Hong Kong and Shenzhen, China.
On February 18, 2011, the Company issued 26,839,707 shares of Series A redeemable convertible (Series A) preferred stock to all of its then existing common stockholders in exchange for the same amount of common shares and the common shares exchanged were subsequently cancelled. The preferred stock issuance was accounted for as a stock dividend. The cancellation of the common shares was accounted for as a reverse stock split; accordingly, all share and per share amounts for all periods presented in these consolidated financial statements and related notes, have been adjusted to reflect the reverse stock split. On February 24, 2011, the Company amended and restated its Articles of Incorporation to increase the authorized number of shares of common stock on a post-split basis from 120.0 million to 150.0 million and approved an additional 36.0 million shares of Series A preferred stock, both with no par value. As a result of this amendment and restatement of the Company’s Articles of Incorporation, the Company changed from an S corporation to a C corporation. On October 27, 2011, the Company re-incorporated in the state of Delaware and changed its no par value common and preferred stock to $0.0001 par value. In July 2012, the Company’s board of directors (Board) approved a 3-for-1 split of the preferred stock and common stock. All share and per share amounts for all periods presented in these consolidated financial statements have been adjusted to reflect the stock split (including the February 2011 transaction described above).
2. Basis of presentation
The Company’s fiscal year ends on December 31, and its fiscal quarters end on March 31, June 30 and September 30.
Changes in classification
The Company has reclassified certain amounts from its previously issued consolidated financial statements. The Company has revised its presentation of certain operating expenses for 2011 and 2012 and has now included $2.1 million and $3.2 million, respectively, in sales and marketing expenses that was previously classified in general and administrative expenses. In addition, the Company has revised its disclosure of advertising costs for 2011 and 2012 to include costs of sponsorships of $2.6 million and $8.2 million, respectively.
Principles of consolidation
T hese consolidated financial statements include all the accounts of the Company and its wholly-owned subsidiaries. Unless otherwise specified, references to the Company are references to the Company and its consolidated subsidiaries. All intercompany balances and transactions have been eliminated upon consolidation. 
 
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Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

Use of estimates
The preparation of financial statements in accordance with accounting principles generally accepted in the United States of America (U.S. GAAP) requires management to make estimates and assumptions that affect the amounts reported and disclosed in the Company’s consolidated financial statements and accompanying notes. The Company regularly evaluates estimates and assumptions related to its allowance for doubtful accounts, stock-based compensation, inventory valuation, warranty liabilities, sales returns, web-based sale deliveries at period-end, implied post contract support and marketing allowances, the valuation and useful life evaluation of acquired intangibles, the valuation of deferred income tax assets and uncertain tax positions. The Company bases its estimates and assumptions on historical experience and on various other factors that it believes to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. The actual results experienced by the Company may differ materially and adversely from management’s estimates. To the extent there are material differences between the estimates and the actual results, future results of operations will be affected.
Unaudited interim consolidated financial statements
The accompanying interim Consolidated Balance Sheet as of March 31, 2014, the interim Consolidated Statements of Operations and Cash Flows for the three months ended March 31, 2014 and 2013 and the interim Consolidated Statement of Redeemable Convertible Preferred Stock and Stockholders’ Equity (Deficit) for the three months ended March 31, 2014 are unaudited. The unaudited interim consolidated financial statements have been prepared on a basis consistent with the annual consolidated financial statements and, in the opinion of management, reflect all adjustments, which include only normal recurring adjustments, necessary to state fairly the Company’s financial position as of March 31, 2014 and its results of operations and cash flows for the three months ended March 31, 2014 and 2013. The financial data and the other financial information disclosed in the notes to these consolidated financial statements related to the three-month periods are also unaudited. The results of operations for the three months ended March 31, 2014 are not necessarily indicative of the results to be expected for the fiscal year ending December 31, 2014, or for any other future year or interim period.
Unaudited pro forma financial information
In connection with the closing of the Company’s initial public offering, all of the outstanding shares of Series A preferred stock will convert on a 1-for-1 basis into common stock. The unaudited pro forma financial information has been prepared assuming the conversion of the redeemable convertible preferred stock into shares of common stock.
Supplemental pro forma net income per share
Supplemental pro forma basic and diluted net income per share attributable to common stockholders have been computed to give effect to the pro forma adjustments discussed above and to the number of          additional shares that would have been required to be issued to repay the outstanding syndicated senior secured credit facility balance at March 31, 2014, assuming the issuance of such shares at the initial offering price of         , the mid-point of the price range set
 
F-8

Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

forth on the cover page of the Company’s initial public offering prospectus. The numerator in the supplemental pro forma basic and diluted net income per share calculation has been adjusted to include the pro forma adjustments discussed above and to reverse the interest expense, net of tax on this credit facility which is assumed to be repaid using a portion of the net proceeds of the Company’s initial public offering of its common stock. The supplemental pro forma net income per share does not include the proceeds to be received from the assumed initial public offering, or shares expected to be sold in the initial public offering, except for those shares necessary to be issued to repay this credit facility.
Comprehensive income
For all periods presented, comprehensive income equaled net income. Therefore, the Consolidated Statements of Comprehensive Income have been omitted from the consolidated financial statements.
3. Summary of significant accounting policies
Accounts receivable and allowance for doubtful accounts
Accounts receivables are stated at invoice value less estimated allowances for returns and doubtful accounts. The Company continually monitors customer payments and maintains a reserve for estimated losses resulting from its customers’ inability to make required payments. The Company considers factors such as historical experience, credit quality, age of the accounts receivable balances, geographic related risks and economic conditions that may affect a customer’s ability to pay. In cases where there are circumstances that may impair a specific customer’s ability to meet its financial obligations, a specific allowance is recorded against amounts due, and thereby reduces the net recognized receivable to the amount reasonably believed to be collectible. For all periods presented, the activity in the allowance for doubtful accounts was not material.
Inventories
Inventories consist of finished goods and component parts, which are purchased from contract manufacturers. Inventories are stated at the lower of average cost or market on a first-in, first-out basis. The Company’s assessment of market value requires the use of estimates regarding the net realizable value of its inventory balances, including an assessment of excess or obsolete inventories. The Company determines excess and obsolete inventories based on an estimate of the future demand for its products within a specified time horizon, generally 12 months. The estimates used for future demand are also used for near-term capacity planning and inventory purchases and are consistent with revenue forecast assumptions. If the Company’s demand forecast is greater than actual demand, the Company may be required to record an excess inventory charge, which would decrease gross profit. Any write-downs taken establish a new cost basis for the underlying inventory. For all periods presented, inventories were predominantly comprised of finished goods.
 
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Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

Point of purchase (POP) displays
The Company sponsors a program to provide retailers with POP displays in order to facilitate the marketing of the Company’s products within retail stores. The POP displays contain a video display that broadcast video images taken by GoPro cameras with product placement available on the POP display for cameras and accessories. The Company generally provides these POP displays to customers free of charge. The costs of the POP displays, less any fees charged to customers, are capitalized as a long-term asset on the accompanying Consolidated Balance Sheets, and the net cost is recognized over the expected period of the benefit provided by these assets, which is generally 24 months. POP display amortization included in sales and marketing expense were $3.6 million, $8.6 million, $13.5 million, $2.2 million and $4.5 million for 2011, 2012, 2013 and the three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited), respectively.
Property and equipment, net
Property and equipment are stated at cost and are depreciated using the straight-line method over the estimated useful life of the assets, ranging from one to seven years. Leasehold improvements are stated at cost and amortized over the shorter of the lease term or the expected useful life of the improvements. Property and equipment pending installation, configuration or qualification are classified as construction in progress.
Fair value measurements
The Company does not have any financial instruments, such as investments in debt or equity securities or derivative instruments that are required to be measured at fair value on a recurring basis. The carrying amounts of the Company’s accounts receivable, accounts payable and accrued liabilities approximate their fair values due to their short maturities. Based on borrowing rates currently available to the Company for its credit facility with similar terms and remaining maturities, and considering the Company’s credit risk, the carrying value of the credit facility approximates fair value and was determined to be a Level 2 measurement.
Leases
The Company leases its facilities under cancelable and non-cancelable operating leases. For leases that contain rent escalation or rent concession provisions, the Company records the total rent expense on a straight-line basis over the term of the lease. The Company records the difference between the rent paid and the straight-line rent as a deferred rent liability on the accompanying Consolidated Balance Sheets. Leasehold improvements are included in property and equipment, net.
Goodwill, acquired intangible assets and other long-lived assets
Goodwill represents the excess of the purchase price over the fair value of the net tangible and intangible assets acquired in a business combination. Goodwill is not amortized but the Company performs an annual qualitative assessment of its goodwill during the fourth quarter of each calendar year to determine if any events or circumstances exist, such as an adverse change in business climate or a decline in the overall industry demand, that would indicate that it would
 
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Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

more likely than not reduce the fair value of a reporting unit below its carrying amount, including goodwill. If events or circumstances do not indicate that the fair value of a reporting unit is below its carrying amount, then goodwill is not considered to be impaired and no further testing is required. If further testing is required, the Company performs a two-step process. The first step involves comparing the fair value of the Company’s reporting unit to its carrying value, including goodwill. If the carrying value of the reporting unit exceeds its fair value, the second step of the test is performed by comparing the carrying value of the goodwill in the reporting unit to its implied fair value. An impairment charge is recognized for the excess of the carrying value of goodwill over its implied fair value. For the purpose of impairment testing, the Company has determined that it has one reporting unit. There has been no impairment of goodwill for any periods presented.
The Company’s long-lived assets consist of property and equipment and acquired intangible assets. Acquired intangible assets with definite lives are amortized on a straight-line basis over the remaining estimated economic life of the underlying products and technologies. The Company reviews its definite-lived long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of a long-lived asset may not be recoverable. Recoverability of an asset group is measured by comparing its carrying amount to the expected future undiscounted cash flows that the asset group is expected to generate. If it is determined that an asset group is not recoverable, an impairment loss is recorded in the amount by which the carrying amount of the asset group exceeds its fair value. There has been no impairment of long-lived assets for any periods presented.
Warranty
The Company generally provides 12-month warranty coverage on all of its products except in the European Union where the Company provides a two-year warranty. The Company’s warranty provides for repair or replacement of the associated products during the warranty period. The Company establishes a liability for estimated product warranty costs at the time product revenue is recognized. The warranty obligation is affected by product failure rates and the related use of materials, labor costs and freight incurred in correcting any product failure. Should actual product failure rates, use of materials, or other costs differ from the Company’s estimates, additional warranty liabilities could be required, which would reduce its gross profit.
Revenue recognition
Revenue is comprised of product revenue, net of returns and sales incentives.
Revenue is derived from the sale of capture devices, as well as the related implied post contract support (PCS). The Company recognizes revenue when persuasive evidence of an arrangement exists, delivery has occurred, the sales price is fixed or determinable and collectability is reasonably assured. Evidence of an arrangement consists of an order from its distributors, resellers or online customers. The Company considers delivery to have occurred once title and risk of loss has been transferred. Customer deposits are included in accrued liabilities on the accompanying Consolidated Balance Sheets and are recognized as revenue when all the criteria for recognition of revenue are met.
 
F-11

Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

The Company’s standard terms and conditions of sale do not allow for product returns and it generally does not allow product returns other than under warranty. However, the Company grants limited rights to return product for certain large retailers and distributors. Estimates of expected future product returns are recognized at the time of sale based on analyses of historical return trends by customer class. Upon recognition, the Company reduces revenue and cost of sales for the estimated return. Return trends are influenced by product life cycle status, new product introductions, market acceptance of products, sales levels, product sell-through, the type of customer, seasonality, product quality issues, operational policies and procedures, and other factors. Return rates can fluctuate over time, but are sufficiently predictable to allow the Company to estimate expected future product returns.
For customers who purchase products directly from the Company’s website, transfer of risk of loss is determined to be upon delivery to the customer’s address. The Company defers those sales made to customers who purchase products from its website in the last four days of the reporting period for which the Company estimates delivery to occur in the following period. The Company uses estimates to determine when shipments are delivered based on third-party metrics for average transit time. Additionally, the Company provides a 30-day money back guarantee for web-based sales for which the Company reduces revenue by an estimate of potential future product returns related to the web-based sales, based on analyses of historical return trends and seasonality. Estimates for web-based sale returns and estimates to derive web sale shipment delivery dates may differ from actual results.
The Company’s camera products include multiple elements. Each element in a multiple element arrangement must be evaluated to determine whether it represents a separate unit of accounting. An element constitutes a separate unit of accounting when it has standalone value and delivery of an undelivered element is both probable and delivery is within the Company’s control.
The Company has determined its multiple element arrangements generally include two separate units of accounting: The first element is the hardware component (camera and accessories) and the embedded firmware essential to the functionality of the camera delivered at the time of sale. The second element is the implied right for the customer to receive post contract support included with the purchase of the Company’s camera products. PCS includes the right to receive, on a when and if available basis, future unspecified firmware upgrades and features as well as bug fixes, email and telephone support.
The Company accounts for each element separately and allocate fees from the arrangement based on the relative selling price of each element. Revenue allocated to an undelivered element is recognized over an estimated service period. The Company recognizes revenue for delivered elements only when all contractual obligations have been completed.
The Company uses a hierarchy to determine the allocation of revenue. The hierarchy is as follows: (i) vendor-specific objective evidence of fair value (VSOE), (ii) third-party evidence of selling price (TPE) and (iii) best estimate of the selling price (BESP).
 
i.	 	VSOE generally exists only when a company sells a deliverable separately and is the price actually charged by the company for that deliverable. The Company does not sell its deliverables separately and, as such, do not have VSOE.	
 
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Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

ii.	 	TPE can be substantiated by determining the price that other parties sell similar or substantially similar offerings. The Company does not believe that there is accessible TPE evidence for similar deliverables since there are not comparable deliverables sold by other companies.	
 
iii.	 	BESP reflects the Company’s best estimates of what the selling prices of elements would be if they were sold regularly on a stand-alone basis. The Company believes that BESP is the most appropriate methodology for determining the allocation of revenue for its multiple element arrangements.	
The Company has allocated revenue between its two elements using the relative selling price method which is based on the BESP for all deliverables. Revenue allocated to the delivered hardware and the related essential software is recognized at the time of sale provided the conditions for recognition of revenue have been met. Revenue allocated to PCS is deferred and recognized on a straight-line basis over the estimated term of the support period, which is estimated to be one year based on historical experience. At December 31, 2012, 2013 and March 31, 2014 (unaudited), deferred implied PCS revenue was $3.8 million, $6.4 million and $7.4 million, respectively.
The Company’s process for determining the BESP for its deliverables involves multiple factors that may vary depending upon the unique facts and circumstances related to each deliverable. Key factors considered by the Company in developing the BESP for PCS include evaluating the level of support provided to customers and analyzing the amount of time and cost that is allocated to the Company’s efforts to develop the undelivered elements, determining the cost of its support efforts, and then adding an appropriate level of gross profit to these costs.
Sales incentives
The Company offers sales incentives through various programs, consisting primarily of cooperative advertising and marketing development fund programs. The Company records cooperative advertising and marketing development fund programs with customers as a reduction to revenue unless it receives an identifiable benefit in exchange for credits claimed by the customer and can reasonably estimate the fair value of the identifiable benefit received, in which case the Company will record it as a marketing expense. In addition, the Company offers price protection discounts to certain customers when new capture device models are released and the customer has remaining inventory on hand of the older capture device model. The Company estimates price protection discounts, which are recorded as a reduction of revenue, by evaluating inventory currently held by the customer subject to price protection. The Company records reductions to revenue for sales incentives when the related revenue is recognized.
Cost of revenue
Cost of revenue includes actual product cost, the cost of shipping, depreciation and amortization, warehousing and processing inventory, warranty replacement costs, excess and obsolete inventory write-downs, certain allocated costs and license fees paid to third parties.
 
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Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

Shipping costs
The Company records amounts billed to customers for shipping costs as revenue in the accompanying Consolidated Statements of Operations. The Company classifies related shipping and handling costs incurred as cost of revenue in the accompanying Consolidated Statements of Operations.
Deferred revenue
Deferred revenue is comprised of customer deposits, undelivered post contract support and undelivered web sale shipments. The cost of revenue related to deferred web sales is included in inventory.
Research and development
Research and development expense includes internal and external costs. Internal costs include employee related expenses, equipment costs, depreciation expense and allocated facility costs. External research and development expenses consist of costs associated with consultants, tooling and prototype materials.
Substantially all research and development expense is related to new research and development efforts and the designing of significant improvements to existing products. Research and development expense to establish the technological feasibility of the Company’s products are expensed as incurred. To date, the period between achieving technological feasibility and the release of products for sale has been short and development costs qualifying for capitalization have been insignificant.
Advertising costs
Advertising costs consist of costs associated with print, television and ecommerce media advertisements and are expensed as incurred. A significant amount of the Company’s promotional expenses result from payments under event, resort and athlete sponsorship contracts. Accounting for sponsorship payments is based upon specific contract provisions. These sponsorship arrangements are considered to be executory contracts and, as such, the costs are recognized as performance under the contract is received. The costs associated with preparation of sponsorship activities, including the supply of GoPro products, media team support and activation fees are considered costs of producing advertising and are expensed as incurred. Prepayments made under sponsorship agreements are included in prepaid expenses or other assets depending on the period to which the prepayment applies. Advertising costs were $23.7 million, $46.9 million, $55.5 million, $13.3 million and $10.4 million for 2011, 2012 and 2013 and the three months ended March 31, 2013 (unaudited) and 2014 (unaudited), respectively.
Stock-based compensation
The Company accounts for stock-based compensation activity using the fair value method, which requires the measurement and recognition of compensation expense for all share-based payment awards based on estimated fair values. This method requires companies to estimate the fair value of stock-based compensation on the date of grant using an option pricing model. The Company uses the Black-Scholes option pricing model to measure stock-based compensation. The Black-Scholes model determines the fair value of share-based payment awards based on the fair value
 
F-14

Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

of the underlying common stock on the date of grant and is affected by assumptions regarding a number of highly complex and subjective variables. These variables include, but are not limited to, the fair value of the underlying common stock, expected volatility over the term of the awards and actual and projected employee stock option exercise behaviors. In addition, the Company is required to estimate the expected forfeiture rate and only recognize expense for those shares expected to vest. The assumptions used in calculating the fair value of the stock-based awards represent management judgment. As a result, if factors change and different assumption are used, the stock-based compensation expense could be materially different in the future. Compensation expense relating to employee stock awards is recorded on a straight-line basis in the accompanying Consolidated Statements of Operations.
Stock awards issued to non-employees are accounted for at fair value. The Company believes that the fair value of the awards is more reliably measured than the fair value of services received. The Company records compensation expense based on the then-current fair values of the stock awards at each financial reporting date. Compensation recorded during the service period is adjusted in subsequent periods for changes in the stock award’s fair value until the earlier of the date at which the non-employee’s performance is complete or a performance commitment is reached, which is generally when the stock option award vests. Compensation expense relating to non-employee stock awards is recorded on a straight-line basis in the accompanying Consolidated Statements of Operations.
The Company recognizes a benefit from stock-based compensation in additional paid-in capital if an incremental tax benefit is realized by following the ordering provisions of the tax law. In addition, the indirect effects of stock-based compensation deductions are reflected in the income tax provision for purposes of measuring the windfall at settlement of awards.
Sales taxes
Sales taxes collected from customers and remitted to respective governmental authorities are not included in revenue and are reflected as a liability on the accompanying Consolidated Balance Sheets.
Foreign currency
The Company and the Company’s wholly-owned subsidiaries use the U.S. dollar as their functional currency. Local currency transactions of the Company’s international operations are remeasured into U.S. dollars at the rates of exchange in effect at the date of the transaction. For those wholly-owned subsidiaries with assets or liabilities denominated in currencies other than the U.S. dollar, non-monetary assets are remeasured into U.S. dollars using historical rates of exchange. Monetary assets and liabilities are remeasured into U.S. dollars using exchange rates prevailing on the balance sheet date. Transaction gains and losses were not material for all periods presented and are included in other income (expense), net, in the accompanying Consolidated Statements of Operations.
Income taxes
The Company utilizes the asset and liability method of accounting for income taxes which requires the recognition of deferred tax assets and liabilities for expected future consequences of temporary differences between the financial reporting and income tax bases of assets and
 
F-15

Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

liabilities using enacted tax rates. Management makes estimates, assumptions and judgments to determine the Company’s provision for income taxes and also for deferred tax assets and liabilities, and any valuation allowances recorded against the Company’s deferred tax assets. The Company assesses the likelihood that its deferred tax assets will be recovered from future taxable income and, to the extent the Company believes that recovery is not likely, the Company must establish a valuation allowance.
The calculation of the Company’s current provision for income taxes involves the use of estimates, assumptions and judgments while taking into account current tax laws, interpretation of current tax laws and possible outcomes of future tax audits. The Company has established reserves to address potential exposures related to tax positions that could be challenged by tax authorities. Although the Company believes its estimates, assumptions and judgments to be reasonable, any changes in tax law or its interpretation of tax laws and the resolutions of potential tax audits could significantly impact the amounts provided for income taxes in the Company’s consolidated financial statements.
The calculation of the Company’s deferred tax asset balance involves the use of estimates, assumptions and judgments while taking into account estimates of the amounts and type of future taxable income. Actual future operating results and the underlying amount and type of income could differ materially from the Company’s estimates, assumptions and judgments thereby impacting the Company’s financial position and results of operations.
The Company has adopted ASC 740-10 “Accounting for Uncertainty in Income Taxes” that prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of uncertain tax positions taken or expected to be taken in the Company’s income tax return, and also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition.
The Company includes interest and penalties related to unrecognized tax benefits within income tax expense in the accompanying Consolidated Statements of Operations. The Company has not incurred any interest or penalties related to unrecognized tax benefits in any of the periods presented.
Recent accounting pronouncements
In July 2013, the Financial Accounting Standards Board issued a new accounting standard update on the financial statement presentation of unrecognized tax benefits. The new guidance provides that a liability related to an unrecognized tax benefit would be presented as a reduction of a deferred tax asset for a net operating loss carryforward, a similar tax loss or a tax credit carryforward if such settlement is required or expected in the event the uncertain tax position is disallowed. The new guidance becomes effective for the Company on January 1, 2014 and it should be applied prospectively to unrecognized tax benefits that exist at the effective date with retrospective application permitted. The Company adopted the guidance on January 1, 2014. The guidance had no material impact to the Company’s financial position or results of operations in the first quarter of 2014.
 
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GoPro, Inc.
Notes to consolidated financial statements

4. Balance sheet components
Inventories, net
Inventories, net consisted of the following:

   	  	December 31,	 	  	March 31,
2014	 	
(in thousands)	  	2012	 	  	2013	 	  			
 	 	  	 	 	 	  	 	 	 	
 	  	 	 	  	 	 	  	(unaudited)	 	
Components	  	$	3,240	  	  	$	8,000	  	  	$	3,702	  	
Finished goods	  	 	57,172	  	  	 	103,994	  	  	 	86,484	  	
	  	 	 	 	  	 	 	 	  	 	 	 	
Inventories, net	  	$	60,412	  	  	$	111,994	  	  	$	90,186	  	
 	 	  	 	 	 	  	 	 	 	
Prepaid expenses and other current assets
Prepaid expenses and other current assets consisted of the following:

   	  	December 31,	 	  	March 31,
2014	 	
(in thousands)	  	2012	 	  	2013	 	  			
 	 	  	 	 	 	  	 	 	 	
 	  	 	 	  	 	 	  	(unaudited)	 	
Prepaid income taxes	  	$	9,529	  	  	$	—	  	  	$	—	  	
Current deferred tax assets	  	 	7,226	  	  	 	15,173	  	  	 	15,079	  	
Prepaid expenses	  	 	1,947	  	  	 	2,739	  	  	 	3,270	  	
Deposits	  	 	1,193	  	  	 	2,049	  	  	 	1,400	  	
Prepaid licenses	  	 	544	  	  	 	1,091	  	  	 	1,353	  	
Other current assets	  	 	1,285	  	  	 	915	  	  	 	3,487	  	
	  	 	 	 	  	 	 	 	  	 	 	 	
	  	$	21,724	  	  	$	21,967	  	  	$	24,589	  	
 	 	  	 	 	 	  	 	 	 	
Property and equipment, net
Property and equipment, net consisted of the following;

   	  	Useful life
(in years)	 	  	December 31,	 	 	March 31,
2014	 	
(in thousands)	  			  	2012	 	 	2013	 	 			
 	 	 	 	 	 	 	 	 	 	
 	  	 	 	  	 	 	 	 	 	 	(unaudited)	 	
Leasehold improvements	  	 	3–7	  	  	$	7,595	  	 	$	20,111	  	 	$	20,345	  	
Computers, software, equipment and furniture	  	 	2–7	  	  	 	4,757	  	 	 	11,988	  	 	 	14,859	  	
Tooling	  	 	1–4	  	  	 	4,197	  	 	 	8,799	  	 	 	9,582	  	
Construction in progress	  				  	 	6,356	  	 	 	2,151	  	 	 	3,095	  	
Tradeshow equipment	  	 	2–5	  	  	 	2,308	  	 	 	2,613	  	 	 	2,781	  	
Automobiles	  	 	3–5	  	  	 	717	  	 	 	856	  	 	 	918	  	
	  				  	 	 	 	 	 	 	 	 	 	 	 	
	  				  	 	25,930	  	 	 	46,518	  	 	 	51,580	  	
Less: Accumulated depreciation	  				  	 	(3,490	) 	 	 	(14,407	) 	 	 	(17,515	) 	
	  				  	 	 	 	 	 	 	 	 	 	 	 	
	  				  	$	22,440	  	 	$	32,111	  	 	$	34,065	  	
 	 	 	 	 	 	 	 	 	 	
Depreciation expense was $0.6 million, $2.8 million, $10.9 million, $1.9 million and $3.5 million for 2011, 2012 and 2013 and the three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited), respectively.
 
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GoPro, Inc.
Notes to consolidated financial statements

Goodwill and acquired intangible assets
Goodwill at December 31, 2012, 2013 and March 31, 2014 (unaudited) was as follows:

(In thousands)	 	
Good will at December 31, 2012	  	$	4,233	  	
Acquisition	  	 	9,862	  	
	  	 	 	 	
Goodwill at December 31, 2013	  	$	14,095	  	
Adjustments (unaudited)	  	 	—	  	
	  	 	 	 	
Goodwill at March 31, 2014 (unaudited)	  	$	14,095	  	
 	  	 	 	 	
Goodwill increased by approximately $9.9 million due to the acquisition of General Things, Inc. (General Things) in the fourth quarter of 2013. There were no impairments or other additions to goodwill in 2012 or the three months ended March 31, 2014 (unaudited).
Acquired intangible assets at December 31, 2012, 2013 and March 31, 2014 (unaudited) were as follows:

   	  	December 31, 2012	 	  	Weighted
average
remaining
useful life
(in years)	 	
(in thousands)	  	Gross	 	  	Accumulated
amortization	 	 	Net	 	  			
 	 	
Developed technology	  	$	5,330	  	  	$	(1,629	) 	 	$	3,701	  	  	 	4.2	  	
Tradename	  	 	664	  	  	 	(243	) 	 	 	421	  	  	 	3.2	  	
Customer relationships	  	 	170	  	  	 	(104	) 	 	 	66	  	  	 	1.2	  	
Noncompete agreements	  	 	150	  	  	 	(137	) 	 	 	13	  	  	 	0.2	  	
Domain name	  	 	15	  	  	 	—	  	 	 	15	  	  				
	  	 	 	 	  				
	  	$	6,329	  	  	$	(2,113	) 	 	$	4,216	  	  				

																	
   	  	December 31, 2013	 	  	Weighted
average
remaining
useful life
(in years)	 	
(in thousands)	  	Gross	 	  	Accumulated
amortization	 	 	Net	 	  			
 	 	
Developed technology	  	$	5,330	  	  	$	(2,517	) 	 	$	2,813	  	  	 	3.2	  	
Tradename	  	 	664	  	  	 	(376	) 	 	 	288	  	  	 	2.2	  	
Customer relationships	  	 	170	  	  	 	(161	) 	 	 	9	  	  	 	0.2	  	
Noncompete agreements	  	 	311	  	  	 	(166	) 	 	 	145	  	  	 	1.8	  	
Domain name	  	 	15	  	  	 	—	  	 	 	15	  	  				
	  	 	 	 	  				
	  	$	6,490	  	  	$	(3,220	) 	 	$	3,270	  	  				

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GoPro, Inc.
Notes to consolidated financial statements

																	
   	  	March 31, 2014	 	  	Weighted
average
remaining
useful life
(in years)	 	
(in thousands)	  	Gross	 	  	Accumulated
amortization	 	 	Net	 	  			
 	  	 	 	 	  	 	 	 	 	 	 	 	  	 	 	 	
Developed technology	  	$	5,330	  	  	$	(2,739	) 	 	$	2,591	  	  	 	3.0	  	
Tradename	  	 	664	  	  	 	(410	) 	 	 	254	  	  	 	2.0	  	
Customer relationships	  	 	170	  	  	 	(170	) 	 	 	—	  	  	 	—	  	
Noncompete agreements	  	 	311	  	  	 	(186	) 	 	 	125	  	  	 	1.6	  	
Domain name	  	 	15	  	  	 	—	  	 	 	15	  	  				
	  	 	 	 	  	 	 	 	 	 	 	 	  				
	  	$	6,490	  	  	$	(3,505	) 	 	$	2,985	  	  				
 	  	 	 	 	  	 	 	 	 	 	 	 	  	 	 	 	
Amortization expense in fiscal years 2011, 2012, 2013 and the three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited) was $1.0 million, $1.2 million, $1.1 million, $0.3 million and $0.3 million, respectively.
The estimated future amortization expense of acquired intangible assets to be charged to cost of revenue and operating expenses as of December 31, 2013, is as follows:

(in thousands)	  	Cost of
revenue	 	  	Operating
expenses	 	  	Total	 	

Years ending December 31,	  				  				  				
2014	  	$	888	  	  	$	223	  	  	$	1,111	  	
2015	  	 	888	  	  	 	197	  	  	 	1,085	  	
2016	  	 	888	  	  	 	22	  	  	 	910	  	
2017	  	 	149	  	  	 	—	  	  	 	149	  	
	  	 	 	 	
	  	$	2,813	  	  	$	442	  	  	$	3,255	  	
 	 	
The estimated future amortization expense of acquired intangible assets to be charged to cost of revenue and operating expenses as of March 31, 2014 (unaudited), is as follows:

(in thousands)	  	Cost of
revenue	 	  	Operating
expenses	 	  	Total	 	

Years ending December 31,	  				  				  				
2014 (remaining 9 months)	  	$	666	  	  	$	160	  	  	$	826	  	
2015	  	 	888	  	  	 	197	  	  	 	1,085	  	
2016	  	 	888	  	  	 	22	  	  	 	910	  	
2017	  	 	149	  	  	 	—	  	  	 	149	  	
	  	 	 	 	
	  	$	2,591	  	  	$	379	  	  	$	2,970	  	

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GoPro, Inc.
Notes to consolidated financial statements

Other long-term assets
Other long-term assets consisted of the following:

   	  	December 31,	 	  	March 31,
2014	 	
(in thousands)	  	2012	 	  	2013	 	  			
 	 	  	 	 	 	
 	  	 	 	  	 	 	  	(unaudited)	 	
POP displays	  	$	13,106	  	  	$	22,379	  	  	$	19,025	  	
Deposits	  	 	1,920	  	  	 	2,698	  	  	 	2,752	  	
Long-term licenses	  	 	—	  	  	 	4,000	  	  	 	4,000	  	
Deferred financing charges	  	 	1,378	  	  	 	947	  	  	 	790	  	
Long-term deferred tax assets	  	 	554	  	  	 	736	  	  	 	1,160	  	
Deferred public offering costs	  	 	—	  	  	 	1,395	  	  	 	3,028	  	
	  	 	 	 	  	 	 	 	
	  	$	16,958	  	  	$	32,155	  	  	$	30,755	  	
 	 	  	 	 	 	
Deferred public offering costs consist principally of legal, accounting and other fees incurred through the balance sheet date that are directly related to this public offering and that will be charged to Stockholders’ Equity (Deficit) upon the receipt of the capital raised. As of December 31, 2013 and March 31, 2014 (unaudited), $0.5 million and $1.3 million, respectively, of deferred public offering costs are included in accrued liabilities.
Accrued liabilities
Accrued liabilities consisted of the following:

   	  	December 31,	 	  	March 31,
2014	 	
(in thousands)	  	2012	 	  	2013	 	  			
 	 	  	 	 	 	
 	  	 	 	  	 	 	  	(unaudited)	 	
Accrued payables	  	$	33,112	  	  	$	49,975	  	  	$	38,311	  	
Employee related liabilities	  	 	2,716	  	  	 	11,932	  	  	 	8,978	  	
Customer deposits	  	 	1,372	  	  	 	1,316	  	  	 	3,550	  	
Warranty liability	  	 	1,734	  	  	 	3,691	  	  	 	2,428	  	
Taxes payable	  	 	2,561	  	  	 	7,766	  	  	 	7,108	  	
Accrued sponsorship expense	  	 	504	  	  	 	2,909	  	  	 	4,124	  	
Accrued sales incentives	  	 	3,314	  	  	 	4,909	  	  	 	2,352	  	
Sales commissions	  	 	2,579	  	  	 	2,454	  	  	 	1,440	  	
Other	  	 	822	  	  	 	1,439	  	  	 	1,792	  	
	  	 	 	 	  	 	 	 	
	  	$	48,714	  	  	$	86,391	  	  	$	70,083	  	

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GoPro, Inc.
Notes to consolidated financial statements

5. Redeemable convertible preferred stock
At December 31, 2012 and 2013 and March 31, 2014 (unaudited), there were 36,000,000 shares of Series A preferred stock authorized and 30,523,036 of Series A preferred stock issued and outstanding with the following terms:
Conversion
Each share of Series A preferred stock is convertible, at the option of the holder, into shares of common stock at a rate of 1-for-1. The conversion of all outstanding Series A preferred stock will occur in connection with the closing of an initial public offering, provided the aggregate offering price equals or exceeds $50.0 million.
Voting rights
The holders of shares of the Company’s Series A preferred stock vote equally with shares of common stock on an as-if converted to common stock basis on all matters, including the election of directors.
Dividend rights
The holders of each Series A share are entitled to receive any noncumulative dividends on an equal basis with common stock, when and if declared by the Board.
Redemption rights
In the event of any liquidation, dissolution, or winding up of the Company, whether voluntary or involuntary, the Company is required to redeem shares of Series A preferred stock at the original issue price of $2.53 per share plus any noncumulative dividends declared by the Board. If the holders have not previously exercised the rights granted to them, the Series A preferred stock is redeemable within 365 days after July 1, 2017, subject to a majority vote of the then outstanding Series A preferred shares. As the redemption events described above could occur and are not solely within the Company’s control, all shares of preferred stock have been presented outside of permanent equity.
On December 19, 2012, certain Series A stockholders exercised their conversion right and converted 4,211,303 shares of Series A preferred stock to common stock to participate in a common share sale transaction between the Company’s principal stockholder and a new investor pursuant to the pre-existing tag-along right. On December 20, 2012, the Series A preferred stock was modified to eliminate an 8% cumulative dividend and to extend the redemption date to July 2017. The 8% cumulative dividend had been accreted using the effective interest method from the time of issue through February 28, 2016, until the 8% cumulative dividend was eliminated on December 20, 2012. The Company recorded preferred stock dividend accretion of $4.2 million and $3.4 million in the years ended December 31, 2012 and 2011, respectively. On December 21, 2012, a dividend of $1.05 per share was declared and paid to holders of common and preferred stock totaling $117.4 million. The dividend payment to the preferred stockholders represented a settlement of accumulated dividends to date, prepayments of future cumulative dividends and participation in
 
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GoPro, Inc.
Notes to consolidated financial statements

additional dividends paid to common stockholders as contractually provided for. The cash dividend was reflected first as a reduction to preferred stock to the extent that such dividend payments were accreted, with any cash paid in excess of this amount recorded as a reduction of retained earnings until exhausted, then as a reduction of additional paid-in-capital until exhausted, and then as accumulated deficit.
6. Common stock and stockholders’ equity (deficit)
Common stock
At December 31, 2012 and 2013 and March 31, 2014 (unaudited), the Company had 150,000,000 shares authorized for issuance. At December 31, 2012 and 2013 and March 31, 2014 (unaudited), there were 80,714,412, 81,420,040 and 81,899,442 shares issued and outstanding, respectively. In July 2012, the Company approved a 3-for-1 split of the Company’s common and preferred stock. All share and per share amounts in these consolidated financial statements have been adjusted to reflect this stock split.
In October 2011, the Company re-incorporated in the State of Delaware and converted its no par value common stock and Series A preferred stock to a par value of $0.0001. The carrying value of common stock was adjusted to state common stock at par value.
In February 2011, the Company issued 26,839,707 shares of Series A preferred stock to its existing stockholders in exchange for the same number of common shares previously held. The common shares exchanged were subsequently cancelled. The cancellation of common shares was accounted for as a 26.8% reverse stock split. All of the share and per share amounts in these consolidated financial statements have been adjusted to reflect the reverse stock split.
On February 24, 2011, the Company amended and restated its Articles of Incorporation to increase the authorized number of post-split shares of common stock from 120.0 million to 150.0 million, and change its status from an S corporation to a C corporation.
In October 2010, the Company converted a convertible promissory note of $0.2 million plus interest of $0.1 million into 7.3 million shares of common stock.
The Company had the following shares of common stock reserved for issuance upon the exercise of equity instruments:

(in thousands)	  	December 31,
2013	 	  	March 31,
2014	 	
 	 	  	 	 	 	
 	  	 	 	  	(unaudited)	 	
Stock options outstanding	  	 	26,724	  	  	 	27,799	  	
Restricted stock units outstanding	  	 	270	  	  	 	570	  	
Stock options, restricted stock and RSUs available for future grants	  	 	1,306	  	  	 	541	  	
	  	 	 	 	  	 	 	 	
	  	 	28,300	  	  	 	28,910	  	

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GoPro, Inc.
Notes to consolidated financial statements

Equity incentive plan
In August 2010, the Board approved the adoption of the 2010 Equity Incentive Plan (EIP). As amended, the EIP permits the Company to grant up to 32,420,000 shares of the Company’s common stock. The EIP provides for the grant of incentive and nonqualified stock options, restricted stock, restricted stock units (RSUs) and stock appreciation rights to employees, non-employee directors and consultants of the Company. All shares that are cancelled, forfeited or expired are returned to the plan and are available for grant in conjunction with the issuance of new stock awards.
The Board oversees the administration of the Company’s equity plans and generally determines eligibility, vesting schedules and other terms for awards granted under the plans. Stock options under the plan have a maximum contractual term of not more than ten years from the date of grant and are generally exercisable upon vesting. Vesting generally occurs over four years and becomes exercisable at the rate of 25% on the first anniversary of the date of grant and ratably on a monthly basis over the remaining 36-month period thereafter. Awards that provide for early exercise are subject to repurchase upon the termination of services prior to vesting. The exercise price of stock options must generally be at least 100% of the fair value of the Company’s common stock on the date of grant as determined by the Board.
 
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Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

Stock option activity
A summary of the Company’s stock option activity and related information is as follows:

   	 	Shares
available
for grant	 	 	Options outstanding	 	
(shares in thousands)	 			 	Shares	 	 	Weighted-
average
exercise
price	 	 	Weighted-
average
grant-
date fair
value	 	 	Total intrinsic
value of
options
exercised
(in thousands)	 	 	Weighted-
average
remaining
contractual
term
(in years)	 	 	Aggregate
intrinsic value
(in thousands)	 	
 	 	
Outstanding at December 31, 2010:	 	 	3,268	  	 	 	13,043	  	 	$	0.66	  	 				 				 				 				
Additional shares authorized	 	 	12,010	  	 	 	—	  	 	 	—	  	 				 				 				 				
Options granted	 	 	(14,100	) 	 	 	14,100	  	 	 	0.93	  	 	$	1.01	  	 				 				 				
Restricted stock and early exercised options granted subject to repurchase	 	 	(1,244	) 	 	 	—	  	 	 	—	  	 				 				 				 				
RSUs granted	 	 	(270	) 	 	 	—	  	 	 	—	  	 				 				 				 				
Exercised	 	 	—	  	 	 	(46	) 	 	 	0.24	  	 				 	$	60	  	 				 				
Forfeited/Cancelled	 	 	736	  	 	 	(736	) 	 	 	0.72	  	 				 				 				 				
	 	 	 	 	 				 				 				 				
Outstanding at December 31, 2011:	 	 	400	  	 	 	26,361	  	 	$	0.80	  	 				 				 				 				
Additional shares authorized	 	 	2,100	  	 	 	—	  	 	 	—	  	 				 				 				 				
Granted	 	 	(1,418	) 	 	 	1,418	  	 	 	5.10	  	 	$	5.02	  	 				 				 				
Exercised	 	 	—	  	 	 	(2,486	) 	 	 	1.11	  	 				 	$	30,605	  	 				 				
Forfeited/Cancelled	 	 	891	  	 	 	(891	) 	 	 	1.43	  	 				 				 				 				
	 	 	 	 	 				 				 				 				
Outstanding at December 31, 2012:	 	 	1,973	  	 	 	24,402	  	 	$	1.00	  	 				 				 	 	8.33	  	 	$	310,454	  	
Additional shares authorized	 	 	2,000	  	 				 				 				 				 				 				
Granted	 	 	(2,906	) 	 	 	2,906	  	 	 	15.14	  	 	$	8.45	  	 				 				 				
Exercised	 	 	—	  	 	 	(345	) 	 	 	2.23	  	 				 	$	4,564	  	 				 				
Forfeited/Cancelled	 	 	239	  	 	 	(239	) 	 	 	6.31	  	 				 				 				 				

Outstanding at December 31, 2013:	 	 	1,306	  	 	 	26,724	  	 	$	2.47	  	 				 				 	 	7.55	  	 	$	367,395	  	
	 	 	 	 	 				 				 				 				
Additional shares authorized (unaudited)	 	 	1,000	  	 	 	—	  	 	 	—	  	 				 				 				 				
Granted (unaudited)	 	 	(1,571	) 	 	 	1,571	  	 	 	16.26	  	 	$	8.80	  	 				 				 				
RSUs granted (unaudited)	 	 	(300	) 	 	 	—	  	 	 	—	  	 				 				 				 				
Exercised (unaudited)	 	 	—	  	 	 	(390	) 	 	 	1.33	  	 				 	$	5,849	  	 				 				
Forfeited/Cancelled (unaudited)	 	 	106	  	 	 	(106	) 	 	 	8.45	  	 				 				 				 				
	 	 	 	 	 				 				 				 				
Outstanding at March 31, 2014 (unaudited):	 	 	541	  	 	 	27,799	  	 	$	3.24	  	 				 				 	 	7.62	  	 	$	365,425	  	
	 	 	 	 	 				 				 				 				
Exercisable at December 31, 2013	 				 	 	20,605	  	 	$	0.84	  	 				 				 	 	7.26	  	 	$	316,812	  	
								
Vested and expected to vest at December 31, 2013	 				 	 	25,798	  	 	$	2.32	  	 				 				 	 	7.52	  	 	$	358,624	  	
								
Exercisable at March 31, 2014 (unaudited)	 				 	 	21,286	  	 	$	1.00	  	 				 				 	 	7.24	  	 	$	327,605	  	
Vested and expected to vest at March 31, 2014 (unaudited)	 				 	 	26,975	  	 	$	3.06	  	 				 				 	 	7.57	  	 	$	359,710	  	
 	 	
In December 2010, the Company granted a total of 2,400,000 stock options to two employees who are family members of the principal stockholder and Chief Executive Officer (CEO) of the Company. These stock options contain terms similar to other employee stock option grants.
 
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GoPro, Inc.
Notes to consolidated financial statements

The total fair value of stock options vested in the years ended December 31, 2011, 2012 and 2013 and the three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited) was $1.9 million, $3.0 million, $5.2 million, $1.0 million and $2.6 million, respectively.
The following is a further breakdown of the options outstanding at December 31, 2013:

   	  	Options outstanding	 	  	Options exercisable	 	
(options in thousands)	  	Options
outstanding	 	  	Weighted-
average
remaining
contractual
life (in years)	 	  	Weighted-
average
exercise price	 	  	Options
exercisable	 	  	Weighted-
average
exercise price	 	

Range of exercise prices	  				  				  				  				  				
$    0.18–0.66	  	 	11,451	  	  	 	6.98	  	  	$	0.62	  	  	 	10,594	  	  	$	0.62	  	
      0.76–0.76	  	 	9,757	  	  	 	7.46	  	  	 	0.76	  	  	 	8,706	  	  	 	0.76	  	
      1.52–2.96	  	 	2,119	  	  	 	8.05	  	  	 	1.91	  	  	 	1,071	  	  	 	1.83	  	
      8.30–8.30	  	 	574	  	  	 	8.80	  	  	 	8.30	  	  	 	184	  	  	 	8.30	  	
  13.72–13.72	  	 	891	  	  	 	9.15	  	  	 	13.72	  	  	 	28	  	  	 	13.72	  	
  15.40–15.40	  	 	611	  	  	 	9.44	  	  	 	15.40	  	  	 	22	  	  	 	15.40	  	
  15.59–15.59	  	 	472	  	  	 	9.64	  	  	 	15.59	  	  	 	—	  	  	 	—	  	
  16.19–16.19	  	 	849	  	  	 	9.88	  	  	 	16.19	  	  	 	—	  	  	 	—	  	
	  	 	 	 	
$  0.18–16.19	  	 	26,724	  	  	 	7.55	  	  	$	2.47	  	  	 	20,605	  	  	$	0.84	  	
 	  	 	 	 	
The following is a further breakdown of the options outstanding at March 31, 2014 (unaudited):

   	  	Options outstanding	 	  	Options exercisable	 	
(options in thousands)	  	Options
outstanding	 	  	Weighted-
average
remaining
contractual
life (in years)	 	  	Weighted-
average
exercise price	 	  	Options
exercisable	 	  	Weighted-
average
exercise price	 	

Range of exercise prices	  				  				  				  				  				
$    0.18–0.66	  	 	11,298	  	  	 	7.12	  	  	$	0.62	  	  	 	10,909	  	  	$	0.62	  	
      0.76–0.76	  	 	9,649	  	  	 	7.22	  	  	 	0.76	  	  	 	8,816	  	  	 	0.76	  	
      1.52–2.96	  	 	1,958	  	  	 	7.81	  	  	 	1.91	  	  	 	1,063	  	  	 	1.83	  	
      8.30–8.30	  	 	552	  	  	 	8.56	  	  	 	8.30	  	  	 	206	  	  	 	8.30	  	
  13.72–13.72	  	 	876	  	  	 	8.90	  	  	 	13.72	  	  	 	242	  	  	 	13.72	  	
  15.40–15.40	  	 	614	  	  	 	9.19	  	  	 	15.40	  	  	 	48	  	  	 	15.40	  	
  15.59–15.59	  	 	453	  	  	 	9.40	  	  	 	15.59	  	  	 	—	  	  	 	—	  	
  16.19–16.19	  	 	834	  	  	 	9.64	  	  	 	16.19	  	  	 	—	  	  	 	—	  	
  16.22–16.22	  	 	1,143	  	  	 	9.84	  	  	 	16.29	  	  	 	—	  	  	 	—	  	
  16.39–16.39	  	 	422	  	  	 	9.99	  	  	 	16.39	  	  	 	2	  	  	 	16.39	  	
	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
$  0.18–16.39	  	 	27,799	  	  	 	7.62	  	  	$	3.24	  	  	 	21,286	  	  	$	1.00	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Restricted stock
The Company has granted restricted stock pursuant to its EIP. Restricted stock are share awards that, upon grant, the holder receives restricted shares of the Company’s common stock, subject to
 
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GoPro, Inc.
Notes to consolidated financial statements

repurchase at the original issuance price upon termination of services prior to vesting. These repurchase terms are considered to be a forfeiture provision and do not result in mark-to-market accounting each reporting period. Restricted stock is legally issued and outstanding. However, restricted stock is only deemed outstanding for basic earnings per share computation purposes upon the lapse of the Company’s right of repurchase.
In June 2011, the Company issued 600,000 shares of restricted stock at a purchase price of $0.0033 per share to a related party for consulting services, which vested on the grant date. The intrinsic value on the date of grant was $0.5 million.
In December 2011, the Company issued 433,500 shares of restricted stock to a consultant at a purchase price of $1.52 per share in accordance with the terms of their service agreements, subject to monthly vesting over a three-year service period.
In October 2013, in connection with the acquisition of General Things, the Company issued 430,000 shares of restricted stock to the two founders, of which 322,500 are subject to monthly vesting over a three-year service period.
Early exercised stock options subject to repurchase
The Company has granted options that provide certain option holders the right to exercise unvested options for shares of restricted stock pursuant to its EIP. Restricted shares issued upon early exercise of stock options are legally issued and outstanding. However, these restricted shares are only deemed outstanding for basic earnings per share computation purposes upon the lapse of the Company’s right of repurchase. Cash received from option holders for exercise of unvested options is treated as a refundable deposit shown as a liability on the accompanying Consolidated Balance Sheets, and reclassified to Stockholders’ Equity (Deficit) as the Company’s repurchase right lapses.
In December 2011, the Company granted 210,000 stock options to a consultant at an exercise price of $1.52 per share in accordance with the terms of his service agreement, subject to monthly vesting over a two year service period. In December 2012, the stock options were exercised early and the shares were purchased.
 
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GoPro, Inc.
Notes to consolidated financial statements

A summary of the Company’s restricted stock and early-exercised stock options subject to repurchase activity is as follows:

(in thousands except for weighted average grant date fair value)	  	Shares	 	 	Weighted-
average
grant date
fair value	 	  	Aggregate
intrinsic
value	 	
 	 	
Non-vested shares at December 31, 2010	  	 	—	  	 	$	—	  	  	$	—	  	
Granted	  	 	1,244	  	 	 	1.68	  	  				
Vested	  	 	(600	) 	 	 	0.98	  	  				
	  	 	 	 	 				  				
Non-vested shares at December 31, 2011	  	 	644	  	 	 	2.44	  	  	 	711	  	
Vested	  	 	(212	) 	 				  				
	  	 	 	 	 				  				
Non-vested shares at December 31, 2012	  	 	432	  	 	 	2.44	  	  	 	5,274	  	
Granted	  	 	430	  	 	 	16.19	  	  	 	6,962	  	
Vested	  	 	(375	) 	 				  				
	  	 	 	 	 				  				
Non-vested shares at December 31, 2013	  	 	487	  	 	 	11.03	  	  	 	7,628	  	
Vested (unaudited)	  	 	(89	) 	 				  				
	  	 	 	 	 				  				
Non-vested shares at March 31, 2014 (unaudited)	  	 	398	  	 	 	12.03	  	  	 	6,342	  	
 	 	
The weighted average remaining vesting term for the restricted stock and unvested early-exercised stock options subject to repurchase as of December 30, 2013 and March 31, 2014 (unaudited) was 1.4 years and 1.6 years, respectively. The total fair value of restricted stock and early exercised stock options subject to repurchase vested in the year ended December 31, 2012 and 2013 and the three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited) were $2.9 million, $6.1 million, $1.0 million and $1.5 million, respectively.
Sharing of proceeds from sale of securities
During the development stage of the Company, the founder and CEO entered into a verbal agreement with a sales employee to share 10% of any proceeds from the sale of equity securities held by the founder and CEO. As a result of the issuance of preferred stock to common stockholders in February 2011, and subsequent sale of these preferred shares by the founder and CEO to third parties, an obligation under this verbal agreement arose. In order to satisfy this obligation and any future obligations that may have arisen out of this verbal agreement, the Company entered into a written agreement and provided the following forms of compensation to the employee:
 
Ÿ 	 	In March 2011, the Company paid the employee $6.1 million in cash, which was recorded as compensation expense within sales and marketing expense. Also in March 2011, the CEO reimbursed the Company for $6.1 million, which is recorded as a stockholder contribution to additional paid-in capital;	
 
Ÿ 	 	In June 2011, the Company issued the employee an option to purchase 6,584,427 shares of common stock at an exercise price of $0.763 per share. The options vested immediately and have a contractual life of 10 years. $6.8 million of stock compensation expense was recorded in June 2011 within sales and marketing expense as a result of this grant. Upon exercise of this option by the employee, the founder and CEO will contribute an equal number of common shares back to the Company; and	
 
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GoPro, Inc.
Notes to consolidated financial statements

Ÿ 	 	In December 2011, the Company issued the employee 270,000 RSUs.	
Restricted stock units
The Company has granted RSUs pursuant to its EIP. The Company issued 270,000 RSUs in December 2011 as part of the sharing of proceeds from a sale of securities. There were no RSUs awarded during the years ended December 31, 2012 and 2013.
RSUs are share awards that, upon vesting, will deliver to the holder shares of the Company’s common stock. The vesting of the December 2011 RSU grant of 270,000 RSUs described above is based on the acquisition of the Company. No stock-based compensation expense has been recognized for this grant because satisfaction of the performance condition is not probable.
In January 2014, the Company issued a total of 300,000 RSUs to employees, comprised of three different grants. Two of the grants, or a total of 200,000 shares, are subject to annual vesting over four years based on continued service. The third grant of 100,000 shares will vest 50% on the four-year anniversary and 50% on the five-year anniversary of the grant date based on continued service.
The weighted average fair value per share of the RSUs awarded in the year ended December 31, 2011 and the three months ended March 31, 2014 (unaudited) was $2.23 and $16.22, respectively. The weighted average fair value per share was calculated based on the fair market value of the Company’s common stock on the grant date. As of December 31, 2013 and March 31, 2014 (unaudited), the fair value of RSUs outstanding was $4.4 million and $9.3 million, respectively.
7. Stock-based compensation
The following table summarizes stock-based compensation expense related to stock options and restricted stock for the three years ended December 31, 2011, 2012 and 2013 and the three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited), as follows:

   	  	Years ended December 31,	 	  	Three months ended
March 31,	 	
(in thousands)	  	     2011	 	  	     2012	 	  	2013	 	  	    2013	 	  	    2014	 	
 	 	
 	  	 	 	  	 	 	  	 	 	  	(unaudited)	 	
						
Stock-based compensation expense by type of award	  				  				  				  				  				
Stock options	  	$	8,518	  	  	$	8,165	  	  	$	8,468	  	  	$	1,623	  	  	$	2,894	  	
RSUs	  	 	—	  	  	 	—	  	  	 	—	  	  	 	—	  	  	 	179	  	
Restricted stock	  	 	457	  	  	 	991	  	  	 	2,419	  	  	 	472	  	  	 	964	  	
	  	 	 	 	
Total stock-based compensation expense	  	$	8,975	  	  	$	9,156	  	  	$	10,887	  	  	$	2,095	  	  	$	4,037	  	

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GoPro, Inc.
Notes to consolidated financial statements

The following table summarizes stock-based compensation expense as reported in the Company’s accompanying Consolidated Statements of Operations:

   	  	Years ended December 31,	 	 	Three months
ended March 31,	 	
(in thousands)	  	    2011	 	 	    2012	 	 	2013	 	 	    2013	 	 	    2014	 	
 	 	 	 	 	 	 	 	 	 	
 	  	 	 	 	 	 	 	 	 	 	(unaudited)	 	
Cost of revenue	  	$	122	  	 	$	333	  	 	$	690	  	 	$	220	  	 	$	168	  	
Research and development	  	 	261	  	 	 	1,452	  	 	 	3,003	  	 	 	441	  	 	 	1,401	  	
Sales and marketing	  	 	7,690	  	 	 	6,335	  	 	 	5,670	  	 	 	1,204	  	 	 	1,414	  	
General and administrative	  	 	902	  	 	 	1,036	  	 	 	1,524	  	 	 	230	  	 	 	1,054	  	
	  	 	 	 	 	 	 	 	 	 	 	 	
Total stock-based compensation expense	  	 	8,975	  	 	 	9,156	  	 	 	10,887	  	 	 	2,095	  	 	 	4,037	  	
Total tax benefit recognized	  	 	(2,897	) 	 	 	(1,091	) 	 	 	(1,104	) 	 	 	(312	) 	 	 	(342	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
Decrease in net income	  	$	6,078	  	 	$	8,065	  	 	$	9,783	  	 	$	1,783	  	 	$	3,695	  	
 	 	 	 	 	 	 	 	 	 	
Stock-based compensation expense related to manufacturing personnel that was capitalized into inventory was immaterial for all periods presented.
The amount of unearned stock-based compensation currently estimated to be expensed with respect to unvested employee share-based payment awards at December 31, 2013 and March 31, 2014 (unaudited) was $22.8 million and $32.6 million, respectively. As of each of December 31, 2013 and March 31, 2014 (unaudited), the weighted-average period over which the unearned stock-based compensation is expected to be recognized was 1.0 year. If there are any modifications or cancellations of the underlying unvested awards, the Company may be required to accelerate, increase or cancel any remaining unearned stock-based compensation expense. Future stock-based compensation expense will increase to the extent that the Company grants additional equity awards or assumes unvested equity awards in connection with acquisitions.
Stock option valuation assumptions
The fair value of the options granted was estimated as of the grant date using the Black-Scholes option pricing model assuming the weighted-average assumptions listed in the following table:

   	 	Years ended December 31,	 	 	Three months ended
March 31,	 	
 	 	2011	 	 	2012	 	 	2013	 	 	2013	 	 	2014	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	(unaudited)	 	
Expected life (years)	 	 	5.0–6.1	  	 	 	5.1–6.1	  	 	 	5.3–6.1	  	 	 	5.9–6.1	  	 	 	5.4–6.3	  	
Risk-free interest rate	 	 	1.1%–2.4%	  	 	 	0.8%–2.4%	  	 	 	0.8%–2.4%	  	 	 	1.0%–1.2%	  	 	 	1.8%–2.0%	  	
Volatility	 	 	56%–59%	  	 	 	56%–60%	  	 	 	56%–60%	  	 	 	56%	  	 	 	55%–56%	  	
Dividend yield	 	 	0%	  	 	 	0%	  	 	 	0%	  	 	 	0%	  	 	 	0%	  	
Expected forfeiture rate	 	 	5%	  	 	 	5%-7%	  	 	 	6%	  	 	 	7%	  	 	 	5%	  	
Weighted average fair value	 	 	$0.98	  	 	 	$5.08	  	 	 	$8.45	  	 	 	$7.41	  	 	 	$8.80	  	

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GoPro, Inc.
Notes to consolidated financial statements

Compensation amortization period
All stock-based compensation is amortized over the requisite service period of the awards, which is generally the same as the vesting period of the awards. The Company amortizes the fair value cost on a straight-line basis over the expected service periods.
Expected life
Expected life represents the period over which the Company anticipates stock-based awards to be outstanding. As the Company has undergone significant operational and structural changes, the historical exercise data do not provide a reasonable basis upon which to estimate expected life. As a result, the Company used the simplified method, as provided under Staff Accounting Bulletin Topic 14.D, “Share-Based Payment,” to calculate the expected term estimate based on the options’ vesting term and contractual terms. Under the simplified method, the expected life is equal to the average of the stock-based award’s weighted average vesting period and its contractual term.
Expected volatility
Expected volatility is a measure of the amount by which the stock price is expected to fluctuate. The Company estimates the expected volatility of its stock options at their grant date by taking the average historical volatility of a group of comparable publicly traded companies over a period equal to the expected life of the options.
Risk-free interest rate
The risk-free interest rate is the estimated average interest rate based on U.S. Treasury zero-coupon notes with terms consistent with the expected life of the awards.
Expected dividends
The Company concluded that cash dividends paid prior to being converted to a C corporation from an S corporation were solely for meeting stockholders’ tax liabilities as a pass-through entity. The cash dividend in 2012 was structured as a one-off event to return value to the stockholders, as discussed in Note 5, “Redeemable Convertible Preferred Stock.” The Company may from time to time contemplate capital transactions, including for example a nonrecurring dividend to create a liquidity event for its stockholders. However, the Company does not anticipate paying any recurring cash dividends in the foreseeable future. Consequently, the Company uses an expected dividend yield of 0% in stock option valuation models.
Expected forfeitures
Stock-based compensation expense recognized in the Consolidated Statements of Operations for the three years ended December 31, 2013 and three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited) are based on awards that are expected to vest less estimated forfeitures. The Company estimates the forfeiture rate of its stock-based awards based on an analysis of actual forfeitures, employee turnover and other factors. The impact from a forfeiture rate adjustment would be recognized in full in the period in which the forfeiture rate changes
 
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Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

and, if the actual number of future forfeitures differs from prior estimates, the Company may record adjustments to stock-based compensation, if necessary.
Determining the fair value of the company’s common stock
Determining the fair value of the Company’s common stock requires complex and subjective judgment and estimates. There is inherent uncertainty in making these judgments and estimates. The absence of an active market for the Company’s common stock required the Board to estimate the fair value of the common stock for purposes of setting the exercise price of the options and estimating the fair value of the common stock at each meeting at which options were granted based on factors such as the valuations of comparable companies, the status of the Company’s development and sales efforts, revenue growth, independent third-party valuations and additional objective and subjective factors relating to the Company’s business. The Company performed its analysis in accordance with applicable elements of the practice aid issued by the American Institute of Certified Public Accountants entitled Valuation of Privately Held Company Equity Securities Issued as Compensation. The fair value of the underlying common stock will be determined by the Board until such time as its common stock is listed on an established stock exchange.
Stock option modifications
During 2012, the Company modified options to purchase 250,000 shares of common stock of three employees to accelerate vesting and extend the time allowed to exercise the stock options in conjunction with termination of employment. The Company recorded a charge of $1.1 million related to the modification of these awards, of which $1.0 million was recorded to sales and marketing expense and the remaining amounts to research and development and general and administrative expenses based on the employees’ functional role within the Company. During 2013, the Company modified options to purchase 8,438 shares of common stock to accelerate vesting and extend the time allowed to exercise the stock options after termination of employment. The Company recorded a charge of $0.1 million related to the modification of this award to cost of revenue, based on the employee’s functional role within the Company.
Compensation cost recognized upon employee sale of shares to the CEO
In December 2012, eight employees sold 760,500 shares of their common stock for $13.0 million to the Company’s CEO. The stock was sold at $17.08 per share, which was greater than the determined fair value of the common stock at the time of sale. The fair value was determined by the Board, based on the Company’s development and sales efforts, revenue growth, independent third-party valuations and additional objective and subjective factors relating to the Company’s business. The Company determined that the amount paid by the Company’s CEO exceeded the estimated fair value of these shares by $2.6 million and concluded that the value transferred to employees in excess of the fair value of shares sold was additional compensation to the selling employees. As a result, the Company recorded compensation expense of $2.6 million, of which $0.3 million was recorded to research and development, $1.7 million was recorded to sales and marketing and $0.6 million was recorded to general and administrative expense in the accompanying Consolidated Statements of Operations, based on the employees’ functional roles within the Company. Of the 760,500 shares sold, the Company repurchased 240,000 shares from two employees who are family members of the Company’s CEO.
 
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Table of Contents
GoPro, Inc.
Notes to consolidated financial statements

Restricted stock and early exercised options subject to repurchase
In June 2011, the Company granted a total of 600,000 shares of restricted stock at a purchase price of $0.0033 per share to two family members of the CEO for consulting services, which vested on the grant date. These shares of restricted stock were accounted for at fair value. General and administrative expense related to these options for the year ended December 31, 2011 was $0.5 million.
In December 2011, the Company granted 433,500 shares of restricted stock and 210,000 stock options to two consultants that the Company sponsors at an exercise price of $1.52 per share in accordance with the terms of their service agreements, subject to monthly vesting over a three-year service period and a two-year service period, respectively. Sales and marketing expense related to these restricted shares for the years ended December 31, 2011, 2012 and 2013 and the three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited) was $1,000, $1.9 million, $3.5 million, $0.8 million and $0.8 million, respectively.
In October 2013, pursuant to the acquisition of General Things, the Company issued 430,000 shares of restricted stock to the two founders, of which 322,500 are subject to monthly vesting over a three-year service period. Research and development expense related to these restricted shares for the year ended December 31, 2013 and the three months ended March 31, 2014 (unaudited) was $0.3 million and $0.4 million, respectively.
The amount of unearned stock-based compensation currently estimated to be expensed with respect to unvested non-employee share-based payment awards at December 31, 2013 and March 31, 2014 (unaudited) was $7.4 million and $6.2 million, respectively. As of December 31, 2013 and March 31, 2014 (unaudited), the weighted-average period over which the unearned stock-based compensation is expected to be recognized was 1.4 years and 1.6 years, respectively.
Restricted stock units
In January 2014, the Company issued a total of 300,000 RSUs to employees, comprised of three different grants. Two of the grants, or a total of 200,000 shares, are subject to annual vesting over four years based on continued service. The third grant of 100,000 shares will vest 50% on the four-year anniversary and 50% on the five-year anniversary based on continued service. General and administrative expense related to these RSUs for the three months ended March 31, 2014 (unaudited) was $0.2 million. The amount of unearned stock-based compensation currently estimated to be expensed related to these RSUs at March 31, 2014 (unaudited) was $4.7 million. As of March 31, 2014 (unaudited), the weighted-average period over which the unearned stock-based compensation is expected to be recognized was 4.2 years.
Non-employee options
In December 2011, the Company granted options to purchase 90,000 shares of common stock to consultants at an exercise price of $1.52, which vested on the grant date. Sales and marketing expense related to these options for the year ended December 31, 2011 was $0.2 million.
In April 2013, the Company granted options to purchase 44,000 shares of common stock to two contractors at an exercise price of $15.40. In September 2013, one of the contractors was
 
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GoPro, Inc.
Notes to consolidated financial statements

terminated and the other contractor was converted to an employee on October 1, 2013. Sales and marketing expense related to these options was $0.2 million in 2013. Non-employee stock compensation expense is included in the stock-based compensation tables in this footnote.
8. Net income per share attributable to common stockholders
Basic and diluted net income per share attributable to common stockholders is presented in conformity with the two-class method required for participating securities. The Company considers its redeemable convertible preferred stock to be participating securities. Prior to December 20, 2012, the holders of the Company’s Series A preferred stock were entitled to receive cumulative dividends at the annual rate of 8% per share per annum, payable prior and in preference to any dividends on any shares of the Company’s common stock. In the event a dividend was paid on common stock, the holders of preferred stock were entitled to a proportionate share of any such dividend as if they were holders of common stock (on an as-if converted basis). All participating dividends paid on the Series A preferred stock reduced accrued past or future preferred dividends by such amount. On December 20, 2012, the Company’s Series A preferred stock was modified to eliminate the 8% cumulative dividend. The holders of the Series A preferred stock do not have a contractual obligation to share in losses. In addition, the Company considers shares issued upon the early exercise of options subject to repurchase and non-vested restricted shares to be participating securities, as the holders of these shares have a nonforfeitable right to dividends. In accordance with the two-class method, earnings allocated to these participating securities and the related number of outstanding shares of the participating securities, which include contractual participation rights in undistributed earnings, have been excluded from the computation of basic and diluted net income (loss) per share attributable to common stockholders.
Under the two-class method, net income attributable to common stockholders after deduction of preferred stock dividends is determined by allocating undistributed earnings between the common stock and the participating securities based on their respective rights to receive dividends. In computing diluted net income attributable to common stockholders, undistributed earnings are re-allocated to reflect the potential impact of dilutive securities. Basic net income per share attributable to common stockholders is computed by dividing the net income attributable to common stockholders by the weighted-average number of common shares outstanding during the period. All participating securities are excluded from basic weighted-average common shares outstanding. Diluted net income per share attributable to common stockholders is computed by dividing the net income attributable to common stockholders by the weighted-average number of common shares outstanding, including all potentially dilutive common shares, if the effect of each class of potential shares of common stock is dilutive.
 
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GoPro, Inc.
Notes to consolidated financial statements

The following table presents the calculations of basic and diluted net income per share attributable to common stockholders:

   	  	Year ended December 31,	 	 	Three months ended
March 31,	 	
(in thousands, except per share amounts)	  	2011	 	 	2012	 	 	2013	 	 	2013	 	 	2014	 	
 	 	
 	  	 	 	 	 	 	 	 	 	 	(unaudited)	 	
						
Numerator:	  				 				 				 				 				
Net income	  	$	24,612	  	 	$	32,262	  	 	$	60,578	  	 	$	23,035	  	 	$	11,049	  	
Less: common stock distributed earnings	  	 	(5,071	) 	 	 	(84,828	) 	 	 	—	  	 	 	—	  	 	 	—	  	
						
Less: preferred stock distributed earnings, including accumulated accretion	  	 	(5,815	) 	 	 	(26,927	) 	 	 	—	  	 	 	—	  	 	 	—	  	
						
Less: unvested early exercised options and restricted stock distributed earnings	  	 	—	  	 	 	(454	) 	 	 	—	  	 	 	—	  	 	 	—	  	
						
Less: undistributed earnings allocable to:	  				 				 				 				 				
holders of preferred stock	  	 	—	  	 	 	—	  	 	 	(16,521	) 	 	 	(6,295	) 	 	 	(2,996	) 	
holders of unvested early exercised options and restricted stock	  	 	—	  	 	 	—	  	 	 	(206	) 	 	 	(84	) 	 	 	(44	) 	
	  	 	 	 	
Undistributed net income (loss) attributable to common stockholders—basic	  	$	13,726	  	 	$	(79,947	) 	 	$	43,851	  	 	$	16,656	  	 	$	8,009	  	
	  	 	 	 	
Add: adjustments to net income for dilutive securities allocable to:	  				 				 				 				 				
holders of preferred stock	  	 	—	  	 	 	—	  	 	 	2,281	  	 	 	860	  	 	 	437	  	
holders of unvested early exercised options and restricted stock	  	 	—	  	 	 	—	  	 	 	28	  	 	 	12	  	 	 	6	  	
	  	 	 	 	
Undistributed net income (loss) attributable to common stockholders—diluted	  	$	13,726	  	 	$	(79,947	) 	 	$	46,160	  	 	$	17,528	  	 	$	8,452	  	
	  	 	 	 	
Distributed earnings to common stockholders	  	$	5,071	  	 	$	84,828	  	 	$	—	  	 	$	—	  	 	$	—	  	

Denominator:	  				 				 				 				 				
Weighted-average common shares—basic	  	 	73,481	  	 	 	74,226	  	 	 	81,018	  	 	 	80,768	  	 	 	81,582	  	
						
Effect of potentially dilutive securities:	  				 				 				 				 				
Stock options and RSUs	  	 	5,070	  	 	 	—	  	 	 	17,923	  	 	 	17,689	  	 	 	19,201	  	
	  	 	 	 	
Weighted-average common shares—diluted	  	 	78,551	  	 	 	74,226	  	 	 	98,941	  	 	 	98,457	  	 	 	100,783	  	

Net income per share attributable to common stockholders:	  				 				 				 				 				
Distributed earnings—basic	  	$	0.07	  	 	$	1.15	  	 	$	—	  	 	$	—	  	 	$	—	  	
Undistributed earnings—basic	  	 	0.19	  	 	 	(1.08	) 	 	 	0.54	  	 	 	0.21	  	 	 	0.10	  	
	  	 	 	 	
Basic net income per share	  	$	0.26	  	 	$	0.07	  	 	$	0.54	  	 	$	0.21	  	 	$	0.10	  	
	  	 	 	 	
Distributed earnings—diluted	  	$	0.06	  	 	$	1.15	  	 	$	—	  	 	$	—	  	 	$	—	  	
Undistributed earnings—diluted	  	 	0.18	  	 	 	(1.08	) 	 	 	0.47	  	 	 	0.18	  	 	 	0.08	  	
	  	 	 	 	
Diluted net income per share	  	$	0.24	  	 	$	0.07	  	 	$	0.47	  	 	$	0.18	  	 	$	0.08	  	

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Notes to consolidated financial statements

The following potentially dilutive shares of common stock subject to options, unvested stock awards and redeemable convertible preferred stock were not included in the calculation of diluted shares outstanding as the effect would have been anti-dilutive:

   	  	Year ended December 31,	 	  	Three months
ended March 31,	 	
(in thousands)	  	2011	 	  	2012	 	  	2013	 	  	2013	 	  	2014	 	
 	 	  	 	 	 	  	 	 	 	
 	  	 	 	  	 	 	  	 	 	  	(unaudited)	 	
Series A redeemable convertible preferred stock	  	 	28,744	  	  	 	30,523	  	  	 	30,523	  	  	 	30,523	  	  	 	30,523	  	
Stock options	  	 	7,107	  	  	 	24,402	  	  	 	1,409	  	  	 	439	  	  	 	3,634	  	
Unvested stock awards and stock options	  	 	2	  	  	 	432	  	  	 	380	  	  	 	409	  	  	 	451	  	

	  	 	35,853	  	  	 	55,357	  	  	 	32,312	  	  	 	31,371	  	  	 	34,608	  	
 	 	  	 	 	 	  	 	 	 	
Unaudited pro forma net income per share
Unaudited pro forma basic and diluted net income per share were computed to give effect to the assumed conversion of Series A preferred stock into common stock in connection with the closing of the Company’s initial public offering using the if converted method as though the conversion had occurred as of January 1, 2013 or the original date of issuance, if later.
 
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Notes to consolidated financial statements

The following table presents the calculations of unaudited pro forma basic and diluted net income per share:

   	  	Year ended
December 31,	 	 	Three months
ended
March 31,	 	
 	 	
 	  	2013	 	 	2014	 	
(in thousands, except per share amounts)	  	 	 	 	 	 	
			
Numerator:	  				 				
Net income	  	$	60,578	  	 	$	11,049	  	
Less: amount allocable to unvested early exercised options and restricted stock	  	 	(206	) 	 	 	(44	) 	
	  	 	 	 	
Undistributed net income (loss) attributable to common stockholders- basic	  	$	60,372	  	 	$	11,005	  	
Add: adjustment of net income for dilutive securities allocable to unvested early exercised options and restricted stock	  	 	28	  	 	 	6	  	
	  	 	 	 	
Undistributed net income (loss) attributable to common stockholders- diluted	  	$	60,400	  	 	$	11,011	  	

Denominator:	  				 				
Weighted-average common shares outstanding	  	 	81,018	  	 	 	81,582	  	
			
Pro forma adjustment to reflect automatic conversion of Series A redeemable convertible preferred stock	  	 	30,523	  	 	 	30,523	  	
	  	 	 	 	
Pro forma weighted-average shares used to compute net income per share attributable to common stockholders—basic:	  	 	111,541	  	 	 	112,105	  	
			
Effect of potentially dilutive securities:	  				 				
Stock options and RSUs	  	 	17,923	  	 	 	19,201	  	
	  	 	 	 	
Pro forma weighted-average shares used to compute net income per share attributable to common stockholders—diluted:	  	 	129,464	  	 	 	131,306	  	

Pro forma net income per share attributable to common stockholders:	  				 				
Distributed earnings—basic	  	$	—	  	 	$	—	  	
Undistributed earnings—basic	  	 	0.54	  	 	 	0.10	  	
	  	 	 	 	
Basic	  	$	0.54	  	 	$	0.10	  	
Distributed earnings—diluted	  	$	—	  	 	$	—	  	
Undistributed earnings—diluted	  	 	0.47	  	 	 	0.08	  	
	  	 	 	 	
Diluted	  	$	0.47	  	 	$	0.08	  	
 	 	
Supplemental unaudited pro forma net income per share
Supplemental unaudited pro forma basic and diluted net income per share were computed to give effect to the assumed conversion of Series A preferred stock into common stock immediately prior to the closing of the Company’s initial public offering, as well as the number of additional shares that would have been required to be issued to repay the outstanding syndicated senior
 
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GoPro, Inc.
Notes to consolidated financial statements

secured credit facility balance of $111.0 million at March 31, 2014 (unaudited) assuming the issuance of such shares at the assumed initial offering price of         , the midpoint of the price range set forth on the cover page of the Company’s initial public offering prospectus. The numerator in the supplemental pro forma basic and diluted net income per share calculation has been adjusted to include the pro forma adjustments discussed above and to reverse interest expense, net of tax on the credit facility, which is assumed to be repaid using a portion of the net proceeds of the Company’s initial public offering of its common stock.
The following table presents the calculations of unaudited supplemental pro forma basic and diluted net income per share:

(in thousands, except per share amounts)	  	Year ended
December 31,
2013	 	 	Three months
ended
March 31,
2014	 	
 	 	
Net income	  	$	60,578	  	 	$	11,049	  	
Less: amount allocable to unvested early exercised options and restricted stock	  	 	(206	) 	 	 	(44	) 	
Pro forma adjustment to reverse interest expense related to repayment of credit facility, net of tax	  				 				
Net income used in computing supplemental pro forma undistributed net income per share attributable to common stockholders	  				 				
			
Denominator:	  				 				
Weighted-average common shares outstanding used in computing pro forma net income attributable to common stockholders-basic	  	 	111,541	  	 	 	112,105	  	
Pro forma adjustment to include additional shares required to be issued to generate proceeds to repay credit facility	  				 				
Denominator for supplemental pro forma net income per share attributable to common stockholders-basic:	  				 				
			
Effect of potentially dilutive securities:	  				 				
Stock options and RSUs	  	 	17,923	  	 	 	19,201	  	
Denominator for supplemental pro forma net income per share attributable to common stockholders-diluted:	  				 				
			
Supplemental pro forma net income per share attributable to common stockholders:	  				 				
Distributed earnings—basic	  				 				
Undistributed earnings—basic	  				 				
Basic	  				 				
Distributed earnings—diluted	  				 				
Undistributed earnings—diluted	  				 				
Diluted	  	$	—	  	 	$	—	  	
 	 	
9. Financing arrangements
Credit facility
On December 21, 2012, the Company entered into a $170.0 million syndicated senior secured credit facility consisting of a $120.0 million three-year term loan facility and a $50.0 million four-year revolving credit facility. The Company received net proceeds of $127.6 million, net of $2.4 million of debt issuance and lender costs. The debt issuance and lender costs were allocated
 
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GoPro, Inc.
Notes to consolidated financial statements

between the term loan facility and the revolving credit facility based on the maximum lending commitment amounts. The debt issuance costs allocated to the term loan facility are reported as deferred charges and the lender costs allocated to the term loan facility are included in the carrying value of the term loan as debt discount. The deferred issuance and lender costs allocated to the term loan facility are being amortized to interest expense over the contractual term of the term loan facility using the effective interest method. Costs allocated to the revolving credit facility are deferred and amortized using the straight-line method over the four year contractual term of the revolving credit facility. Borrowings under the credit facility are collateralized by substantially all of the assets of the Company.
The term loan facility has scheduled quarterly principal repayments due on the last day of each quarter of $1.5 million per quarter in 2013, $3.0 million per quarter in 2014 and $6.0 million for the first three quarters of 2015 with the balance of $84.0 million due on December 21, 2015. The interest rate is based on the 6-month adjusted LIBOR (London Interbank Offered Rate) plus 2.5%. The initial contractual interest rate is 3.06% and will adjust every six months. The inception date effective interest rate was 3.71%. The Company may prepay the term loan at any time, without penalty. Mandatory additional principal prepayments may be required based on excess cash flows of the Company. The Company’s excess cash flows, as defined in the credit facility, for 2013 triggered a contractual principal prepayment obligation of $48.5 million, which amount has been classified as a current liability as of December 31, 2013 and March 31, 2014 (unaudited). In April 2014, the Company amended the credit facility agreement for its term loan to extend the due date for this contractual principal prepayment from April 2014 to December 2014.
As of December 31, 2013 and March 31, 2014 (unaudited), $114.0 million and $111.0 million of the term loan was outstanding, respectively. The remaining unamortized discount was $0.4 million and $0.3 million as of December 31, 2013 and March 31, 2014 (unaudited), respectively. The effective interest rate on the term loan was 3.79% on December 31, 2013 and March 31, 2014 (unaudited).
The revolving credit facility matures on December 21, 2016. Principal can be paid and re-borrowed during the term of the revolving credit facility. The interest rate is based on the 3-month adjusted LIBOR plus 2.5%. The initial interest rate was 2.81% and will adjust quarterly for any balance outstanding. Mandatory additional principal repayments may be required based on excess cash flows of the Company once the term loan facility has been fully repaid. As of December 31, 2013 and March 31, 2014 (unaudited), zero of the revolving credit facility was drawn down. As of December 31, 2013 and March 31, 2014 (unaudited), $20.0 million of the revolving credit facility was committed to a standby letter of credit. In April 2014, the $20.0 million standby letter of credit was terminated.
The credit agreement contains customary representations and warranties and customary affirmative and negative covenants applicable to the Company and its restricted subsidiaries, including, among other things, restrictions on indebtedness, liens, investments, mergers, dispositions, prepayment of other indebtedness and dividends and other distributions. The credit agreement contains an acceleration clause for certain events related to the Company’s financial creditworthiness, including a financial covenant that requires the Company to maintain specific consolidated ratios. As of December 31, 2013 and March 31, 2014 (unaudited), the Company was in compliance with all covenants.
 
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GoPro, Inc.
Notes to consolidated financial statements

Line of credit
Prior to the credit facility in December 2012, the Company had a line of credit agreement which provided for borrowings of up to $15.0 million, which was later amended to increase the maximum amount of borrowings up to $50.0 million, with interest at the bank’s prime rate. Borrowings under this line of credit were collateralized by substantially all of the assets of the Company. During 2012, the Company failed to provide a required pledge agreement upon creation of a foreign subsidiary, failed to provide audited financial statements within 120 days after year end and did not meet the quarterly net income covenant for the quarter ended September 30, 2012. All covenant defaults were waived by the bank. In December 2012, the line of credit was cancelled due to the new credit facility that was entered in December 2012.
License financing arrangement
In August 2013, the Company entered into a Stadium Builders License Agreement (License Agreement) with the Santa Clara Stadium Authority. As part of the License Agreement, the Company will have rights during the agreement term to season tickets for a National Football League team. The cost of the license was $4.0 million, of which $3.2 million was financed with the Santa Clara Stadium Authority at an 8.5% fixed interest rate over the course of the first ten years of the new stadium. Interest was to begin accruing on March 1, 2014. The financing arrangement requires ten annual payments of $0.4 million, with an option to pay off the principal at any time without any prepayment penalty. As of December 31, 2013, the Company had made a payment of $0.4 million, and recorded a long term asset of $4.0 million and a short term liability of $3.6 million on the accompanying Consolidated Balance Sheets related to this License Agreement. In January and February 2014, the Company paid down the remaining $3.6 million related to the license agreement with the Santa Clara Stadium Authority. As of March 31, 2014, there were no further financial obligations related to this License Agreement outstanding.
Loan agreement
In December 2010, the Company entered into a loan agreement with a bank which provided for borrowings up to $5.0 million and bore interest at the bank’s prime rate plus 1.75%. The loan agreement expired on December 27, 2011, with no funds borrowed.
CineForm noteholders note payable
As part of the acquisition consideration of CineForm, Inc., the Company assumed $760,000 of the outstanding balance due to CineForm Noteholders. See Note 15, “Acquisition of CineForm.” The note balance was payable in six equal quarterly installments plus accrued interest at 7%. This note was fully repaid in 2012.
 
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GoPro, Inc.
Notes to consolidated financial statements

10. Income taxes
Income before income tax consisted of the following:

   	  	Years ended December 31,	 	
(in thousands)	  	2011	 	  	2012	 	  	2013	 	

Domestic	  	$	38,791	  	  	$	38,714	  	  	$	57,251	  	
Foreign	  	 	—	  	  	 	14,496	  	  	 	34,078	  	
	  	 	 	 	
	  	$	38,791	  	  	$	53,210	  	  	$	91,329	  	
 	 	
Income tax expense consisted of the following:

   	  	Years ended December 31,	 	
(in thousands)	  	2011	 	 	2012	 	 	2013	 	

Current:	  				 				 				
Federal	  	$	16,687	  	 	$	19,984	  	 	$	28,856	  	
State	  	 	4,323	  	 	 	(493	) 	 	 	1,634	  	
Foreign	  	 	—	  	 	 	3,578	  	 	 	8,058	  	
	  	 	 	 	 	 	 	 	
Total current	  	 	21,010	  	 	 	23,069	  	 	 	38,548	  	

Deferred:	  				 				 				
Federal	  	 	(5,962	) 	 	 	(2,247	) 	 	 	(7,268	) 	
State	  	 	(869	) 	 	 	126	  	 	 	(861	) 	
Foreign	  	 	—	  	 	 	—	  	 	 	332	  	
	  	 	 	 	 	 	 	 	
Total deferred	  	 	(6,831	) 	 	 	(2,121	) 	 	 	(7,797	) 	
	  	 	 	 	 	 	 	 	
Income tax expense	  	$	14,179	  	 	$	20,948	  	 	$	30,751	  	
 	 	 	 	 	 	
Undistributed earnings of $36.9 million of the Company’s foreign subsidiaries are considered to be indefinitely reinvested and, accordingly, no provision for federal and state income taxes have been provided thereon. The Company intends to reinvest these earnings indefinitely in its foreign subsidiaries. If these earnings were distributed to the United States in the form of dividends or otherwise or if the shares of the relevant foreign subsidiaries were sold or otherwise transferred the Company would be subject to additional U.S. income taxes (subject to adjustment for foreign tax credits) and foreign withholding taxes. Determination of the amount of unrecognized deferred income tax liability related to these earnings is not practical.
 
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GoPro, Inc.
Notes to consolidated financial statements

Income tax expense reconciles to the amount computed by applying the federal statutory rate (35%) to income before income taxes as follows:

   	  	Years ended December 31,	 	
 	  	2011	 	 	2012	 	 	2013	 	
(in thousands, except percentage)	  	$	 	 	%	 	 	$	 	 	%	 	 	$	 	 	%	 	

Reconciliation to statutory rate:	  				 				 				 				 				 				
Tax at federal statutory rate	  	$	13,577	  	 	 	35.0%	  	 	$	18,623	  	 	 	35.0%	  	 	$	31,965	  	 	 	35.0%	  	
State taxes, net of federal benefit	  	 	2,229	  	 	 	5.8	  	 	 	1,384	  	 	 	2.6	  	 	 	2,344	  	 	 	2.6	  	
Impact of foreign operations	  	 	—	  	 	 	—	  	 	 	(211	) 	 	 	(0.4	) 	 	 	(113	) 	 	 	(0.1	) 	
Stock-based compensation	  	 	540	  	 	 	1.4	  	 	 	1,385	  	 	 	2.6	  	 	 	2,982	  	 	 	3.3	  	
S corporation status benefit	  	 	(1,082	) 	 	 	(2.8	) 	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	
S corporation conversion—DTA setup	  	 	(965	) 	 	 	(2.5	) 	 	 	—	  	 	 	—	  	 	 	—	  	 	 	—	  	
Tax credits	  	 	(211	) 	 	 	(0.5	) 	 	 	(415	) 	 	 	(0.8	) 	 	 	(5,637	) 	 	 	(6.2	) 	
Other	  	 	91	  	 	 	0.3	  	 	 	182	  	 	 	0.3	  	 	 	(790	) 	 	 	(0.9	) 	
	  	 	 	 	 	 	 	 	 	 	 	 	
	  	$	14,179	  	 	 	36.6%	  	 	$	20,948	  	 	 	39.4%	  	 	$	30,751	  	 	 	33.7%	  	
 	 	 	 	 	 	 	 	 	 	
Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company’s deferred tax assets and liabilities were as follows:

   	  	December 31,	 	
(in thousands)	  	2012	 	 	2013	 	

Components of deferred tax assets and liabilities	  				 				
Deferred tax assets:	  				 				
Net operating loss carryforwards	  	$	746	  	 	$	252	  	
Stock-based compensation	  	 	3,477	  	 	 	3,475	  	
Accruals and reserves	  	 	6,973	  	 	 	15,463	  	
	  	 	 	 	 	 	 	 	
Gross deferred tax assets	  	 	11,196	  	 	 	19,190	  	
Valuation allowance	  	 	(204	) 	 	 	—	  	
	  	 	 	 	 	 	 	 	
Total deferred tax assets	  	 	10,992	  	 	 	19,190	  	
			
Deferred tax liabilities:	  				 				
Depreciation and amortization	  	 	(1,998	) 	 	 	(3,063	) 	
Intangible assets	  	 	(1,214	) 	 	 	(550	) 	
	  	 	 	 	 	 	 	 	
Total deferred tax liabilities	  	 	(3,212	) 	 	 	(3,613	) 	
	  	 	 	 	 	 	 	 	
Net deferred tax assets	  	$	7,780	  	 	$	15,577	  	
 	 	 	 	 	 	
Recognition of deferred tax assets is appropriate when realization of such assets is more likely than not. Based upon the weight of available evidence, which includes the Company’s historical operating performance and the U.S. cumulative net profits in prior periods, the Company believes it is more likely than not that deferred tax assets will be realized.
 
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GoPro, Inc.
Notes to consolidated financial statements

As of December 31, 2013, the Company’s federal and state net operating loss carryforwards for income tax purposes were $0.4 million and $0.2 million, respectively. If not utilized, the federal and state losses will begin to expire in 2022 and 2014, respectively. Utilization of these federal and state tax credit carryforwards are subject to an annual utilization limitation of $1.2 million due to the ownership change limitations provided by the Internal Revenue Code of 1986, as amended, and similar state provisions.
Uncertain income tax positions
The Company has adopted ASC 740-10 “Accounting for Uncertainty in Income Taxes.” ASC 740-10 prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of uncertain tax positions taken or expected to be taken in the Company’s income tax return, and also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition.
The Company’s total amounts of gross unrecognized tax benefits as of December 31, 2013 was $9.9 million, which represented an increase in unrecognized tax benefits by $5.5 million during 2013. If recognized, $9.4 million of these unrecognized tax benefits (net of federal benefit) would be recorded as a reduction of future income tax provision for the year ending December 31, 2013.
A reconciliation of the beginning and ending amount of the unrecognized income tax benefits during the years ended December 31, 2012 and 2013 are as follows:

   	  	December 31,	 	
(in thousands)	  	2011	 	  	2012	 	  	2013	 	
 	 	
Gross balance at January 1	  	$	—	  	  	$	966	  	  	$	4,439	  	
Gross increase related to current year tax positions	  	 	171	  	  	 	3,473	  	  	 	5,280	  	
Gross increase related to prior year tax positions	  	 	795	  	  	 	—	  	  	 	179	  	
	  	 	 	 	  	 	 	 	  	 	 	 	
	  	$	966	  	  	$	4,439	  	  	$	9,898	  	
 	 	
The Company’s policy is to account for interest and penalties as income tax expense. As of the December 31, 2013, the Company had accrued no interest or penalties related to unrecognized tax benefits.
It is reasonably possible that the total amounts of unrecognized tax benefits will significantly increase within the next 12 months. However, the range of the reasonably possible change cannot be reliably estimated.
The Company files income tax returns in the U.S. federal jurisdiction, certain U.S. states and Hong Kong. The Company is subject to U.S. federal income tax examination for calendar tax years ending 2010 through 2013, from 2009 through 2013 for state tax purposes and 2013 for Hong Kong. The U.S. federal and U.S. state taxing authorities may choose to audit tax returns for tax years beyond the statute of limitation period due to significant tax attribute carryforwards from prior years, making adjustments only to carryforward attributes.
 
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GoPro, Inc.
Notes to consolidated financial statements

The Company was contacted for audit in December 2013 by the Internal Revenue Service for the 2011 tax year which included a partial year S corporation and partial year C corporation return. At this time, the Company is not able to estimate the potential impact that the examination may have on income tax expense. If the examination is resolved unfavorably, there is a possibility it may have a material negative impact on the Company’s results of operations.
11. Related parties
Beginning in fiscal year 2013, the Company entered into agreements for certain contract manufacturing and engineering services with a company affiliated with one of its investors. In 2013 and the three months ended March 31, 2014 (unaudited), the Company made payments of $3.6 million and $8.4 million, respectively, for services rendered. As of December 31, 2013 and March 31, 2014 (unaudited), the Company had accounts payable associated with this vendor of $3.9 million and $2.6 million, respectively.
In the second quarter of fiscal year 2013, the Company settled an outstanding legal matter with one of the CEO’s family members for $0.2 million.
In the second quarter of fiscal year 2013, the Company loaned one of its executive officers $150,000 pursuant to a demand payment loan that did not bear interest, which was fully repaid in March 2014.
In the third quarter of fiscal year 2013, the Company entered into an agreement with a company affiliated with the son of one of the members of the Board to acquire certain naming rights to a sprint kart race track. As consideration for these naming rights, the Company will pay a total of $0.5 million in installments beginning in October 2013 over the naming rights period. In addition to the fee, the Company will also provide the company with 100 GoPro capture devices at no cost each year during the term of the agreement, which is three years. As of March 31, 2014 (unaudited), the Company has paid $0.2 million related to this agreement.
In December 2013, the Company entered into a separation agreement with the Company’s former Chief Financial Officer, pursuant to which the Company paid him cash severance of $0.3 million.
In fiscal year 2013 and the first quarter of fiscal year 2014, the Company incurred and expensed chartered aircraft fees for the use of the CEO’s private plane, for which $0.2 million was accrued as of March 31, 2014 (unaudited).
Other related party transactions involving the Company’s CEO are discussed in Note 6, “Common stock and stockholders’ equity (deficit)” and Note 7, “Stock-based compensation.”
 
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GoPro, Inc.
Notes to consolidated financial statements

12. Commitments, contingencies and guarantees
The following table summarizes the Company’s contractual commitments as of December 31, 2013:

(in thousands)	  	Total	 	  	1 year
(fiscal
2014)	 	  	2-3 years
(fiscal
2015
and
2016)	 	  	4-5 years
(fiscal
2017 and
2018)	 	  	More than
5 years
(beyond
fiscal
2018)	 	
 	 	
Term loan principal and interest(1)	  	$	118,606	  	  	$	63,652	  	  	$	54,954	  	  	$	—	  	  	$	—	  	
Operating leases(2)	  	 	32,243	  	  	 	7,681	  	  	 	13,368	  	  	 	10,614	  	  	 	580	  	
Sponsorship commitments(3)	  	 	34,423	  	  	 	18,526	  	  	 	15,596	  	  	 	301	  	  	 	—	  	
License financing arrangement(4)	  	 	3,600	  	  	 	3,600	  	  	 	—	  	  	 	—	  	  	 	—	  	
Other contractual commitments(5)	  	 	4,365	  	  	 	1,896	  	  	 	2,469	  	  	 	—	  	  	 	—	  	
Capital equipment purchase commitments(6)	  	 	3,607	  	  	 	3,607	  	  	 	—	  	  	 	—	  	  	 	—	  	
	  	 	 	 	
Total contractual cash obligations	  	$	196,844	  	  	$	98,962	  	  	$	86,387	  	  	$	10,915	  	  	$	580	  	

(1)	 	See Note 9, “Financing arrangements.” Interest payments were calculated using the applicable rate as of December 31, 2013.	
 
(2)	 	The Company leases its facilities under long-term operating leases, which expire at various dates through May 2019. The lease agreements frequently include leasehold improvement incentives, escalating lease payments, renewal provisions and other provisions which require the Company to pay taxes, insurance, maintenance costs or defined rent increases.	
 
(3)	 	The Company sponsors sporting events and athletes as part of its marketing efforts. In many cases, the Company enters into multi-year agreements with event organizers and athletes.	
 
(4)	 	In August 2013, the Company entered into a license agreement with the Santa Clara Stadium Authority which gave it rights during the agreement term to season tickets for a National Football League team. The cost of the license was $4.0 million, of which $3.6 million remains to be paid as of December 31, 2013 and was recorded as a short-term liability on the accompanying Consolidated Balance Sheet .	
 
(5)	 	In 2013, the Company purchased software licenses and engaged outside consultants to assist with upgrading or implementing its financial and IT systems, which require payments over multiple years.	
 
(6)	 	The Company enters into contracts to acquire equipment for tooling and molds as part of its manufacturing operations. In addition, the Company incurs purchase commitments related to the manufacturing of its POP displays by third parties. The Company has revised the previously disclosed amount for capital equipment purchase commitments as of December 31, 2013 to correct this amount.	
 
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GoPro, Inc.
Notes to consolidated financial statements

The following table summarizes the Company’s contractual commitments as of March 31, 2014 (unaudited):

(in thousands)	  	Total	 	  	1 year
(remaining
9 months
fiscal
2014)	 	  	2-3 years
(fiscal
2015
and
2016)	 	  	4-5 years
(fiscal
2017 and
2018)	 	  	More than
5 years
(beyond
fiscal
2018)	 	
 	 	
Term loan principal and interest(1)	  	$	115,523	  	  	$	60,569	  	  	$	54,954	  	  	$	—	  	  	$	—	  	
Operating leases(2)	  	 	31,150	  	  	 	6,436	  	  	 	13,520	  	  	 	10,614	  	  	 	580	  	
Sponsorship commitments(3)	  	 	22,129	  	  	 	9,967	  	  	 	11,861	  	  	 	301	  	  	 	—	  	
Other contractual commitments(4)	  	 	5,465	  	  	 	1,760	  	  	 	3,705	  	  	 	—	  	  	 	—	  	
Capital equipment purchase commitments(5)	  	 	8,339	  	  	 	8,339	  	  	 	—	  	  	 	—	  	  	 	—	  	
	  	 	 	 	
Total contractual cash obligations	  	$	182,606	  	  	$	87,071	  	  	$	84,040	  	  	$	10,915	  	  	$	580	  	

(1)	 	See Note 9, “Financing arrangements.” Interest payments were calculated using the applicable rate as of March 31, 2014 (unaudited).	
 
(2)	 	The Company leases its facilities under long-term operating leases, which expire at various dates through May 2019. The lease agreements frequently include leasehold improvement incentives, escalating lease payments, renewal provisions and other provisions which require the Company to pay taxes, insurance, maintenance costs or defined rent increases.	
 
(3)	 	The Company sponsors sporting events and athletes as part of its marketing efforts. In many cases, the Company enters into multi-year agreements with event organizers and athletes.	
 
(4)	 	The Company purchases software licenses and engages outside consultants to assist with upgrading or implementing its financial and IT systems, which require payments over multiple years.	
 
(5)	 	The Company enters into contracts to acquire equipment for tooling and molds as part of its manufacturing operations. In addition, the Company incurs purchase commitments related to the manufacturing of its POP displays by third parties.	
Rent expense for the years ended December 31, 2011, 2012 and 2013 and for the three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited) was $0.4 million, $1.9 million, $3.9 million, $0.7 million and $1.3 million, respectively.
Legal proceedings
From time to time, the Company is involved in legal proceedings in the ordinary course of business. The Company believes that the outcome of any existing litigation, either individually or in the aggregate, will not have a material impact on the results of operations, financial condition or cash flows of the Company.
Indemnifications
In the normal course of business, the Company enters into agreements that contain a variety of representations and warranties and provide for general indemnification. The Company’s exposure under these agreements is unknown because it involves claims that may be made against the Company in the future, but have not yet been made. To date, the Company has not paid any claims or been required to defend any action related to its indemnification obligations. However, the Company may record charges in the future as a result of these indemnification obligations.
 
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GoPro, Inc.
Notes to consolidated financial statements

Product warranty
As of December 31, 2013, $3.7 million of the warranty liability was recorded as an element of accrued liabilities and $0.2 million was recorded as an element of other long-term liabilities. As of March 31, 2014 (unaudited), $2.4 million of the warranty liability was recorded as an element of accrued liabilities and $0.2 million was recorded as an element of other long-term liabilities.
The following table summarizes the warranty liability activity:

   	  	Years ended December 31,	 	 	Three months
ended
March 31,	 	
(in thousands)	  	2011	 	 	2012	 	 	2013	 	 	2014	 	
 	 	
 	  	 	 	 	 	 	 	 	 	 	(unaudited)	 	
Beginning balances	  	$	116	  	 	$	589	  	 	$	1,937	  	 	$	3,870	  	
Charged to cost of revenue	  	 	1,644	  	 	 	2,821	  	 	 	7,380	  	 	 	271	  	
Settlements of warranty claims	  	 	(1,171	) 	 	 	(1,473	) 	 	 	(5,447	) 	 	 	(1,590	) 	
	  	 	 	 	
Ending balances	  	$	589	  	 	$	1,937	  	 	$	3,870	  	 	$	2,551	  	
 	 	
13. Employee retirement plan
Effective January 1, 2009, the Company established a 401(k) defined contribution retirement plan (Retirement Plan) covering U.S. full-time employees. The Retirement Plan provides for voluntary employee contributions from 1% to 86% of annual compensation, subject to a maximum limit allowed by Internal Revenue Service guidelines.
In March 2014, the Company modified its Retirement Plan to include an employer matching contribution. The Company will make a matching contribution equal to the employee’s 401(k) deferral up to 4% of their 401(k) eligible compensation per pay period. The matching contribution is retroactive to January 1, 2014. As of March 31, 2014 (unaudited), the Company had expensed and accrued $0.6 million for this matching program.
14. Concentrations of risk and segment information
Segment information
The Company operates as one operating segment as it only reports financial information on an aggregate and consolidated basis to its CEO, who is the Company’s chief operating decision maker.
Customer concentration
Financial instruments, which potentially subject the Company to concentrations of credit risk, consist principally of trade receivables. The Company believes that the credit risk in its trade receivables is mitigated by the Company’s credit evaluation process, relatively short collection terms and dispersion of its customer base. The Company generally does not require collateral and losses on trade receivables have historically been within management’s expectations.
As of December 31, 2012, one distributor customer accounted for 10% of the Company’s net accounts receivable balance. As of December 31, 2012 and 2013 and March 31, 2014 (unaudited),
 
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GoPro, Inc.
Notes to consolidated financial statements

one retail customer accounted for 47%, 21% and 32% of the Company’s net accounts receivable balance, respectively. As of December 31, 2013 and March 31, 2014 (unaudited), a second retail customer accounted for 11% and 12% of the Company’s net accounts receivable balance. As of December 31, 2013, a third retail customer accounted for 14% of the Company’s net accounts receivable balance.
In 2013 and the three months ended March 31, 2014 (unaudited), the Company sold accounts receivables, without recourse, of $71.1 million and $31.3 million, respectively, from a retail customer to a third-party banking institution. Factoring fees of $0.6 million and $0.3 million in 2013 and the three months ended March 31, 2014 (unaudited) related to the sale of trade accounts receivable were included in interest expense.
Customers with revenue equal to or greater than 10% of total revenue for the years ended December 31, 2011, 2012 and 2013, and for the three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited) were as follows:

   	  	Years ended December 31,	 	  	Three months
ended
March 31,	 	
 	  	  2011	 	  	  2012	 	  	  2013	 	  	  2013	 	  	  2014	 	
 	 	
 	  	 	 	  	 	 	  	 	 	  	(unaudited)	 	
A (retailer)	  	 	15%	  	  	 	15%	  	  	 	17%	  	  	 	14%	  	  	 	13%	  	
B (distributor)	  	 	*	  	  	 	*	  	  	 	*	  	  	 	*	  	  	 	10%	  	

*	 	Less than 10% of total revenue for the period indicated	
Supplier concentration
The Company relies on third parties for the supply and manufacture of its capture devices. In instances where a supply and manufacture agreement does not exist or suppliers fail to perform their obligations, the Company may be unable to find alternative suppliers or satisfactorily deliver its products to its customers on time, if at all.
The Company also relies on third parties with whom it outsources supply chain activities related to inventory warehousing, order fulfillment, distribution and other direct sales logistics. The Company cannot be sure that these parties will perform their obligations as expected or that any cost savings, or other benefits will be derived from the efforts of these parties. If any of these parties breaches or terminates their agreement with the Company or otherwise fails to perform their obligations in a timely manner, the Company’s financial results may be adversely affected.
 
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GoPro, Inc.
Notes to consolidated financial statements

Geographic and other information
Revenue by geographic region, based on ship-to destinations, was as follows:

   	  	Year ended December 31,	 	  	Three months ended
March 31,	 	
(in thousands)	  	2011	 	  	2012	 	  	2013	 	  	2013	 	  	2014	 	
 	 	  	 	 	 	  	 	 	 	  	 	 	 	
 	  	 	 	  	 	 	  	 	 	  	(unaudited)	 	
Americas	  	$	168,450	  	  	$	314,135	  	  	$	557,285	  	  	$	133,474	  	  	$	125,166	  	
Europe, Middle East and Africa	  	 	51,328	  	  	 	157,587	  	  	 	311,674	  	  	 	87,783	  	  	 	80,107	  	
Asia and Pacific area countries	  	 	14,460	  	  	 	54,294	  	  	 	116,778	  	  	 	33,800	  	  	 	30,443	  	
	  	 	 	 	  	 	 	 	  	 	 	 	
	  	$	234,238	  	  	$	526,016	  	  	$	985,737	  	  	$	255,057	  	  	$	235,716	  	
 	 	  	 	 	 	  	 	 	 	
Revenue in the United States, which is included in the Americas geographic region, was $151.4 million, $278.7 million, $498.5 million, $115.5 million and $110.7 million for the years ended December 31, 2011, 2012 and 2013 and for the three months ended March 31, 2013 (unaudited) and March 31, 2014 (unaudited), respectively.
As of December 31, 2012 and 2013 and March 31, 2014 (unaudited) long-lived assets, which represent property and equipment, located outside the United States, primarily China, were $4.0 million, $6.0 million and $7.1 million, respectively.
The Company does not disclose revenue by product category as it does not track sales incentives and other revenue adjustments by product category to report such data.
15. Acquisitions
CineForm, Inc.
On February 25, 2011, the Company acquired all of the shares of CineForm. CineForm was a provider of professional editing compression and decompression (CODEC) software that made high definition (HD) and three dimensional (3D) editing faster and more convenient without sacrificing quality. The acquisition of CineForm enabled GoPro to utilize CineForm’s compression and other proprietary technologies to enhance the video image quality of its cameras.
The total acquisition consideration for CineForm of $9.9 million consisted of $8.0 million paid at the closing (net of $0.2 million cash acquired), a holdback of $0.9 million for indemnification of representations made by the acquiree, assumption of $0.8 million of CineForm notes payable and assumption of $0.3 million of vested employee stock options. The holdback amount and notes payable were payable in six equal quarterly installments, plus 7% interest accrued on the note payable. In addition, the Company recorded acquisition-related transaction costs of $0.3 million, which were included in general and administrative expense in the accompanying Consolidated Statements of Operations.
 
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GoPro, Inc.
Notes to consolidated financial statements

The Company has calculated the fair value of the tangible and intangible assets acquired to allocate the purchase price as of the acquisition date. The excess of purchase price over the aggregate fair values was recognized as goodwill. Based upon these calculations, the purchase price of the transaction was allocated as follows:

(in thousands)	  	Estimated
useful life
(in years)	 	  	Purchase
price	 	

Purchased intangible assets:	  				  				
Developed technology	  	 	6	  	  	$	5,330	  	
Customer relationships	  	 	3	  	  	 	170	  	
Tradename	  	 	5	  	  	 	664	  	
Noncompete agreements	  	 	2	  	  	 	150	  	
Goodwill (non-tax deductible)	  				  	 	4,233	  	
Net deferred tax liabilities	  				  	 	(488	) 	
Other assets and liabilities acquired, net of cash	  				  	 	(146	) 	
	  				  	 	 	 	
Total assets acquired	  				  	$	9,913	  	
	  				  	 	 	 	
Cash paid	  				  	$	7,955	  	
Options issued	  				  	 	339	  	
CineForm note	  				  	 	760	  	
Deferred cash (holdback)	  				  	 	859	  	
	  				  	 	 	 	
Total consideration issued in the acquisition	  				  	$	9,913	  	
 	 	  	 	 	 	
The fair values of the intangible assets were determined using the income approach with significant inputs that are not observable in the market. Key assumptions included expected future cash flows and discount rates consistent with the assessment of risk. Purchased intangible assets are amortized using a straight-line amortization method over their estimated useful lives. Among the factors that contributed to a purchase price in excess of the fair value of the net tangible and intangible assets were the synergies in products that can be leveraged by the Company and the acquisition of an assembled workforce of experienced software engineers.
The results of operations of CineForm are included in the accompanying Consolidated Statements of Operations from the date of acquisition. The pro forma financial information has not been presented as the Company’s consolidated results of operations presented herein materially reflect the full effects of the acquisition for the fiscal years since the acquisition closed on February 25, 2011.
General Things
On October 18, 2013, the Company completed the acquisition of 100% of the shares of General Things, a leading digital design and software studio based in San Francisco, California for aggregate acquisition consideration of $17.0 million, comprised of $10.0 million of cash and $7.0 million related to 430,000 shares of the Company’s common stock. The cash consideration includes retention bonuses of $1.7 million and the shares of the Company’s common stock includes 322,500 unvested stock awards. The acquisition is expected to advance the Company’s business back-end and consumer-facing web development.
 
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GoPro, Inc.
Notes to consolidated financial statements

Of the aggregate acquisition consideration, approximately $10.1 million was determined to be the accounting purchase price attributable to the portion of cash and common stock for which there is no remaining requisite service period. The Company expects to record $6.9 million as compensation expense over the requisite service periods following the acquisition.
The Company also recorded acquisition-related transaction costs of $0.3 million, which were included in general and administrative expenses during the year ended December 31, 2013.
The Company has calculated the fair value of the tangible and intangible assets acquired to allocate the purchase price as of the acquisition date. The excess of purchase price over the aggregate fair values was recognized as goodwill. Based upon these calculations, the purchase price of the transaction was allocated as follows:

(in thousands)	  	Estimated
useful life
(in years)	 	  	Purchase
price	 	
			
Purchased intangible asset:	  				  				
Noncompete agreements	  	 	2	  	  	$	161	  	
Goodwill (non-tax deductible)	  				  	 	9,862	  	
Other assets and liabilities acquired, net of cash	  				  	 	84	  	
	  				  	 	 	 	
Total assets acquired	  				  	$	10,107	  	
 	 	
The fair value of the intangible asset was determined using the income approach with significant inputs that are not observable in the market. Key assumptions included expected future cash flows and discount rates consistent with the assessment of risk. The purchased intangible asset will be amortized using a straight-line amortization method over its estimated useful lives. Among the factors that contributed to a purchase price in excess of the fair value of the net tangible and intangible assets were the synergies in products that can be leveraged by the Company and the acquisition of an assembled workforce of experienced software engineers.
The results of operations of General Things are included in the accompanying Consolidated Statements of Operations from the date of acquisition. Pro forma results of operations for the General Things acquisition have not been presented because they are not material to the Company’s consolidated results of operations.
16. Subsequent events
The Company has performed an evaluation of subsequent events through March 14, 2014, the date that the audited annual consolidated financial statements were issued.
In January 2014, the Company granted to its employees stock options to purchase 1,142,750 shares of the Company’s common stock at a weighted average exercise price of $16.22 per share. In addition, the Company issued 300,000 RSUs.
In January 2014, the Company amended one of its sponsorship agreements, which would have expired in 2015, to expire in 2014. This reduced the Company’s sponsorship commitments by $12.8 million.
 
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GoPro, Inc.
Notes to consolidated financial statements

On February 5, 2014, the Company changed its name from Woodman Labs, Inc. to GoPro, Inc.
In January and February 2014, the Company paid down the remaining $3.6 million related to the license agreement with the Santa Clara Stadium Authority.
17. Subsequent events (unaudited)
The Company has performed an evaluation of subsequent events through May 9, 2014, the date that the unaudited interim consolidated financial statements were issued.
In April 2014, the Company amended the credit agreement for its syndicated senior secured credit facility to extend the due date for the $48.5 million contractual principal prepayment from April 2014 to December 2014. In addition, the $20.0 million standby letter of credit on the Company’s revolving credit facility was terminated.
In May 2014, the Company granted to its employees stock options to purchase 247,622 shares of the Company’s common stock at a weighted average exercise price of $16.39 per share.
 
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We have passionate ideas about what’s possible in life. Our passions lead us to pursue experiences and realities that expand our world and inspire those around us. GoPro’s focus is to help you capture and share life’s most passionate experiences and to celebrate them with others. Like how a day on the mountain with friends is better than one spent alone, the sharing of our collective experiences makes our lives more meaningful, more fun. Versatile capture devices are what we make. Enabling you to capture and share your life is what we do. This is your life...GoPro. Nicholas Woodman Founder and CEO

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Gopro® Be a HERO.

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Part II
Information not required in prospectus
Item 13. Other expenses of issuance and distribution
The following table sets forth the costs and expenses to be paid by the Registrant in connection with the sale of the shares of Class A common stock being registered hereby. All amounts are estimates except for the SEC registration fee, the FINRA filing fee and NASDAQ listing fee.

SEC registration fee	  	$	12,880	  	
FINRA filing fee	  	 	60,500	  	
NASDAQ listing fee	  	 	*	  	
Printing and engraving	  	 	*	  	
Legal fees and expenses	  	 	*	  	
Accounting fees and expenses	  	 	*	  	
Road show expenses	  	 	*	  	
Blue sky fees and expenses	  	 	*	  	
Transfer agent and registrar fees and expenses	  	 	*	  	
Miscellaneous	  	 	*	  	
Total	  	$	*	  	

*	 	To be filed by amendment.	
Item 14. Indemnification of directors and officers
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended, the Securities Act.
As permitted by the Delaware General Corporation Law, the Registrant’s restated certificate of incorporation contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except liability for the following:
 
Ÿ 	 	any breach of the director’s duty of loyalty to the Registrant or its stockholders;	
 
Ÿ 	 	acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;	
 
Ÿ 	 	under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases); and	
 
Ÿ 	 	any transaction from which the director derived an improper personal benefit.	
As permitted by the Delaware General Corporation Law, the Registrant’s amended and restated bylaws provide that:
 
Ÿ 	 	the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions;	
 
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Ÿ 	 	the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law;	
 
Ÿ 	 	the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; and	
 
Ÿ 	 	the rights conferred in the amended and restated bylaws are not exclusive.	
Prior to the closing of this offering, the Registrant intends to enter into indemnification agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s restated certificate of incorporation and amended and restated bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director, executive officer or employee of the Registrant regarding which indemnification is sought. Reference is also made to Section          of the Underwriting Agreement, which provides for the indemnification of executive officers, directors and controlling persons of the Registrant against certain liabilities. The indemnification provisions in the Registrant’s restated certificate of incorporation, amended and restated bylaws and the indemnification agreements entered into or to be entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.
The Registrant has directors’ and officers’ liability insurance for securities matters.
Certain of the Registrant’s directors (Michael Marks and Edward Gilhuly) are also indemnified by their respective employers with respect to their service on the Registrant’s board of directors.
Reference is made to the following documents filed as exhibits to this Registration Statement regarding relevant indemnification provisions described above and elsewhere herein:

Exhibit document	  	Number	 	
 	 	
Form of Underwriting Agreement	  	 	1.01	  	
Form of Restated Certificate of Incorporation of the Registrant	  	 	3.02	  	
Form of Amended and Restated Bylaws of the Registrant	  	 	3.04	  	
Investors’ Rights Agreement, dated as of February 25, 2011, by and among the Registrant and certain investors of the Registrant, as amended March 10, 2011	  	 	4.02	  	
Form of Indemnification Agreement	  	 	10.01	  	
 	 	
Item 15. Recent sales of unregistered securities
Since January 1, 2011, the Registrant has issued and sold the following securities:
(1) Since January 1, 2011, the Registrant has granted stock options under its 2010 Equity Incentive Plan to purchase 18,774,064 shares of its Class B common stock (net of expirations, forfeitures and cancellations) to a total of 740 employees, directors, consultants and other service providers, with exercise prices ranging from $0.1833 to $16.39 per share. Of these, options to purchase 1,380,392 shares of Class B common stock have been exercised to date for aggregate consideration of $2,213,958, at exercise prices ranging from $0.1833 to $15.40 per share.
 
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(2) From June 29, 2011 to December 31, 2011, the Registrant has granted restricted stock awards under its 2010 Equity Incentive Plan of 1,033,500 shares of its Class B common stock to a total of three employees, directors, consultants and other service providers for aggregate consideration of $659,475.00, with purchase prices ranging from $0.0033 to $1.5167 per share.
(3) In February and March 2011, the Registrant entered into a Series A Preferred Stock Purchase Agreement pursuant to which it issued and sold to accredited investors an aggregate of 7,894,632 shares of Series A preferred stock, at a purchase price of $2.533367 per share, for aggregate consideration of $19,999,998. In connection with the closing of this offering, these shares of Series A preferred stock will convert into 7,894,632 shares of Class B common stock.
(4) In June and December 2011, the Registrant granted stock options under its 2010 Equity Incentive Plan to purchase 6,584,427 shares of its Class B common stock at an exercise price of $0.7633 per share and 270,000 restricted stock units, to Neil Dana.
(5) On October 18, 2013, the Registrant granted 430,000 shares of its Class B common stock to two individuals in connection with the acquisition of General Things, Inc.
(6) On January 29, 2014, the Registrant granted an aggregate of 300,000 restricted stock units to two employees under its 2010 Equity Incentive Plan.
The offers, sales and issuances of the securities described in paragraphs (1), (2), (4) and (6) above were deemed to be exempt from registration under the Securities Act in reliance upon Section 4(2) of the Securities Act or Rule 701 promulgated under the Securities Act as transactions pursuant to benefit plans and contracts relating to compensation as provided under Rule 701. The recipients of such securities were the Registrant’s employees, directors or bona fide consultants and received the securities under its stock option plan. Appropriate legends were affixed to the securities issued in these transactions. Each of the recipients of securities in these transactions had adequate access, through employment, business or other relationships, to information about us.
The offers, sales and issuances of the securities described in paragraphs (3) and (5) above were deemed to be exempt from registration under the Securities Act in reliance upon Section 4(2) of the Securities Act or Rule 506 of Regulation D promulgated thereunder in that the issuance of securities to the accredited investors did not involve a public offering. The recipients of the securities in each of these transactions represented their intentions to acquire 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 investor under Rule 501 of Regulation D.
 
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Item 16. Exhibits and financial statement schedules
(a) Exhibits

Exhibit
number	 	  	Exhibit title	
 	 	
 	  1.01	* 	  	Form of Underwriting Agreement.	
 	  3.01	* 	  	Amended and Restated Certificate of Incorporation of the Registrant, as amended.	
 	  3.02	  	  	Form of Restated Certificate of Incorporation of the Registrant, to be effective in connection with the closing of this offering.	
 	  3.03	  	  	Bylaws of the Registrant.	
 	  3.04	  	  	Form of Amended and Restated Bylaws of the Registrant, to be effective in connection with the closing of this offering.	
 	  4.01	  	  	Form of Registrant’s Class A common stock certificate.	
 	  4.02	  	  	Investors’ Rights Agreement, dated as of February 25, 2011, by and among the Registrant and certain investors, as amended.	
 	  5.01	* 	  	Opinion of Fenwick & West LLP regarding the legality of the securities being registered.	
 	10.01	  	  	Form of Indemnity Agreement by and between the Registrant and each of its directors and executive officers.	
 	10.02	  	  	2010 Equity Incentive Plan, as amended, and form of stock option agreement and restricted stock unit agreement.	
 	10.03	* 	  	2014 Equity Incentive Plan and forms of award agreements.	
 	10.04	* 	  	2014 Employee Stock Purchase Plan.	
 	10.05	  	  	Offer Letter to Nina Richardson from the Registrant, dated February 8, 2013.	
 	10.06	  	  	Offer Letter to Paul Crandell from the Registrant, dated July 29, 2011.	
 	10.07	  	  	Offer Letter to Jack Lazar from the Registrant, dated January 17, 2014.	
 	10.08	  	  	Offer Letter to Sharon Zezima from the Registrant, dated August 23, 2013.	
 	10.09	  	  	Form of Change in Control Severance Agreement.	
 	10.10	  	  	Change in Control Severance Agreement dated January 17, 2014, by and between Jack Lazar and the Registrant.	
 	10.11	  	  	Contribution Agreement dated December 28, 2011 by and between Nicholas Woodman and the Registrant.	
 	10.12	  	  	Office Lease Agreement, dated as of November 1, 2011, by and between Locon San Mateo, LLC and the Registrant, as amended, and other leases for the Registrant’s headquarters.	
 	10.13	  	  	Credit Agreement, dated as of December 27, 2011, by and between Wells Fargo Bank, National Association and the Registrant, as amended.	
 	10.14	† 	  	Design, Manufacturing and Supply Agreement, dated as of August 18, 2011, by and between Chicony Electronics Co. Ltd. and the Registrant.	
 	10.15	  	  	Credit Agreement, dated as of December 21, 2012, by and among J.P. Morgan Securities LLC, Citibank, N.A., Barclays Bank PLC, Silicon Valley Bank and the Registrant, as amended.	
 	21.01	  	  	List of subsidiaries.	
 	23.01	* 	  	Consent of Fenwick & West LLP (included in Exhibit 5.01).	
 	23.02	  	  	Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.	
 	24.01	  	  	Power of Attorney (included on signature page).	

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*	 	To be filed by amendment.	
 
†	 	Confidential treatment requested.	
(b) Financial statement schedules.
All financial statement schedules are omitted because they are not applicable or the information is included in the Registrant’s consolidated financial statements or related notes.
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 may be permitted to directors, officers and controlling persons of the Registrant pursuant to provisions described in Item 14 above, 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) for purposes of determining any liability under the Securities Act, 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 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the Securities Act, 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.
 
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Signatures
Pursuant to the requirements of the Securities Act, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Mateo, State of California, on May 19, 2014.

GOPRO, INC.	
		
By:	 	/s/ Nicholas Woodman	
	 	Nicholas Woodman
Chief Executive Officer	
Power of attorney
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Nicholas Woodman and Jack Lazar, and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to sign any registration statement for the same offering covered by the Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or her or their substitute or substitutes, may lawfully do or cause to be done or by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:

Name	  	Title	  	Date	
				
By:  
 	 	/s/ Nicholas Woodman
Nicholas Woodman	  	Chief Executive Officer and Chairman
(Principal Executive Officer)	  	May 19, 2014	
				
By:
 	 	/s/ Jack Lazar
Jack Lazar	  	Chief Financial Officer
(Principal Financial and Accounting Officer)	  	May 19, 2014	
				
By:
 	 	/s/ Michael Marks
Michael Marks	  	Director	  	May 19, 2014	
				
By:
 	 	/s/ John Ball
John Ball	  	Director	  	May 19, 2014	
				
By:
 	 	/s/ Edward Gilhuly
Edward Gilhuly	  	Director	  	May 19, 2014	
				
By:
 	 	/s/ Kenneth Goldman
Kenneth Goldman	  	Director	  	May 19, 2014	

Table of Contents
Exhibit index

Exhibit
number	 	  	Exhibit title	
 	 	
 	1.01	* 	  	Form of Underwriting Agreement.	
 	3.01	* 	  	Amended and Restated Certificate of Incorporation of the Registrant, as amended.	
 	3.02	  	  	Form of Restated Certificate of Incorporation of the Registrant, to be effective in connection with the closing of this offering.	
 	3.03	  	  	Bylaws of the Registrant.	
 	3.04	  	  	Form of Amended and Restated Bylaws of the Registrant, to be effective in connection with the closing of this offering.	
 	4.01	  	  	Form of Registrant’s Class A common stock certificate.	
 	4.02	  	  	Investors’ Rights Agreement, dated as of February 25, 2011, by and among the Registrant and certain investors, as amended.	
 	5.01	* 	  	Opinion of Fenwick & West LLP regarding the legality of the securities being registered.	
 	10.01	  	  	Form of Indemnity Agreement by and between the Registrant and each of its directors and executive officers.	
 	10.02	  	  	2010 Equity Incentive Plan, as amended, and form of stock option agreement and restricted stock unit agreement.	
 	10.03	* 	  	2014 Equity Incentive Plan and forms of award agreements.	
 	10.04	* 	  	2014 Employee Stock Purchase Plan.	
 	10.05	  	  	Offer Letter to Nina Richardson from the Registrant, dated February 8, 2013.	
 	10.06	  	  	Offer Letter to Paul Crandell from the Registrant, dated July 29, 2011.	
 	10.07	  	  	Offer Letter to Jack Lazar from the Registrant, dated January 17, 2014.	
 	10.08	  	  	Offer Letter to Sharon Zezima from the Registrant, dated August 23, 2013.	
 	10.09	  	  	Form of Change in Control Severance Agreement.	
 	10.10	  	  	Change in Control Severance Agreement dated January 17, 2014 by and between Jack Lazar and the Registrant.	
 	10.11	  	  	Contribution Agreement dated December 28, 2011 by and between Nicholas Woodman and the Registrant.	
 	10.12	  	  	Office Lease Agreement, dated as of November 1, 2011, by and between Locon San Mateo, LLC and the Registrant, as amended, and other leases for the Registrant’s headquarters.	
 	10.13	  	  	Credit Agreement, dated as of December 27, 2011, by and between Wells Fargo Bank, National Association and the Registrant, as amended.	
 	10.14	† 	  	Design, Manufacturing and Supply Agreement, dated as of August 18, 2011, by and between Chicony Electronics Co. Ltd. and the Registrant.	
 	10.15	  	  	Credit Agreement, dated as of December 21, 2012, by and among J.P. Morgan Securities LLC, Citibank, N.A., Barclays Bank PLC, Silicon Valley Bank and the Registrant, as amended.	
 	21.01	  	  	List of subsidiaries.	
 	23.01	* 	  	Consent of Fenwick & West LLP (included in Exhibit 5.01).	
 	23.02	  	  	Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.	
 	24.01	  	  	Power of Attorney (included on signature page).	

*	 	To be filed by amendment.	
 
†	 	Confidential treatment requested.	

Exhibit 3.02
GOPRO, INC.
RESTATED CERTIFICATE OF INCORPORATION
GoPro, Inc., a Delaware corporation, hereby certifies as follows:
1. The name of the corporation is GoPro, Inc. The date of filing its original Certificate of Incorporation with the Secretary of State was August 24, 2011, under the name Woodman Labs, Inc.
2. The Restated Certificate of Incorporation of the corporation attached hereto as Exhibit “1” , which is incorporated herein by this reference, and which restates, integrates and further amends the provisions of the Certificate of Incorporation of this corporation, as previously amended and/or restated, has been duly adopted by the corporation’s Board of Directors and by the stockholders in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, with the approval of the corporation’s stockholders having been given by written consent without a meeting in accordance with Section 228 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, this corporation has caused this Restated Certificate of Incorporation to be signed by its duly authorized officer and the foregoing facts stated herein are true and correct.

Dated:	 		 	GoPro, Inc.	
				
	 		 	By:	 	 	
	 		 	Name:	 	Nicholas Woodman	
	 		 	Title:	 	President and Chief Executive Officer	

EXHIBIT “1”
GOPRO, INC.
RESTATED CERTIFICATE OF INCORPORATION
ARTICLE I: NAME
The name of the corporation is GoPro, Inc. (the “ Corporation ”).
ARTICLE II: AGENT FOR SERVICE OF PROCESS
The address of the Corporation’s registered office in the State of Delaware is 2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle, Delaware 19808. The name of the registered agent of the Corporation at that address is Corporation Service Company.
ARTICLE III: PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “ General Corporation Law ”).
ARTICLE IV: AUTHORIZED STOCK
1. Total Authorized . The total number of shares of all classes of stock that the Corporation has authority to issue is Six Hundred Fifty Five Million (655,000,000) shares, consisting of: Five Hundred Million (500,000,000) shares of Class A Common Stock, $0.00001 par value per share (“ Class A Common Stock ”), One Hundred Fifty Million (150,000,000) shares of Class B Common Stock, $0.00001 par value per share (“ Class B Common Stock ” and together with the Class A Common Stock, the “ Common Stock ”), and Five Million (5,000,000) shares of Preferred Stock, $0.00001 par value per share (the “ Preferred Stock ”). The number of authorized shares of Class A Common Stock and Class B 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 capital stock representing a majority of the voting power of all the then-outstanding shares of capital stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the General Corporation Law, and no vote of the holders of the Class A Common Stock or Class B Common Stock voting separately as a class shall be required therefor.
2. Preferred Stock .
2.1. The Board of Directors is hereby authorized, subject to any limitations prescribed by the law of the State of Delaware, by resolution or resolutions adopted from time to time, to provide for the issuance of shares of Preferred Stock in one or more series, and, by filing a Certificate of Designation pursuant to the applicable law of the State of Delaware setting forth such resolution or resolutions, to establish from time to time the number of shares to be included

in each such series, to fix the designation, powers (including voting powers), preferences and relative, participating, optional or other rights (and the qualifications, limitations or restrictions thereof) of the shares of each such series and to increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares of such series then outstanding) the number of shares of any such series. The number of authorized shares of Preferred 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 of the voting power of all the then-outstanding shares of capital stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the General Corporation Law, and, unless otherwise expressly provided in any Certificate of Designation designating any series of Preferred Stock pursuant to the foregoing provisions of this Article IV, no separate vote of the holders of Preferred Stock or any series thereof shall be required therefor.
2.2. Except as otherwise expressly provided in any Certificate of Designation designating any series of Preferred Stock pursuant to the foregoing provisions of this Article IV, (i) any new series of Preferred Stock may be designated, fixed and determined as provided herein by the Board of Directors without approval of the holders of Common Stock or the holders of Preferred Stock, or any series thereof, and (ii) any such new series may have powers, preferences and rights, including, without limitation, voting rights, dividend rights, liquidation rights, redemption rights and conversion rights, senior to, junior to or pari passu with the rights of the Common Stock, the Preferred Stock, or any future class or series of Preferred Stock or Common Stock.
3. Common Stock .
3.1. Equal Status . Except as otherwise required by law or as expressly set forth in this Section 3 of this Article IV, each share of Class A Common Stock shall have the same rights and powers as, rank equally to, share ratably with and be identical in all respects and in all matters to, each share of Class B Common Stock.
3.2. Number of Votes . Except as otherwise set forth herein or as required by law, the holders of Class A Common Stock and Class B Common Stock shall vote together as a single class on all matters submitted to a vote of the stockholders generally. Each outstanding share of Class B Common Stock shall entitle the holder thereof, as such, to ten (10) votes, and each outstanding share of Class A Common Stock shall entitle the holder thereof, as such, to one (1) vote. Unless otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Restated Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Restated Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock) or pursuant to the General Corporation Law.
3.3. Dividends and Distributions . Dividends and other distributions may be declared and paid on shares of the Common Stock from funds lawfully available therefor as and when determined by the Board of Directors and subject to applicable law and any preferential
 
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dividend, distribution or other rights of the holders of any then outstanding series of Preferred Stock. Without the affirmative vote of the holders of Class A Common Stock representing a majority of the voting power of the outstanding shares of Class A Common Stock, voting separately as a single class, and the affirmative vote of the holders of Class B Common Stock representing a majority of the voting power of the outstanding shares of Class B Common Stock, voting separately as a single class, the Corporation may not declare and pay any dividends or make other distributions with respect to any class of Common Stock unless at the same time the Corporation declares and pays a ratable dividend or makes a ratable distribution with respect to each outstanding share of Common Stock, regardless of class. For purposes of the preceding sentence, dividends or other distributions payable in (i) shares of a class of Common Stock; (ii) voting securities of the Corporation or voting securities of any entity that is a wholly owned subsidiary of the Corporation (“ Voting Securities ”); or (iii) securities (including options, warrants or other rights) convertible into, or exercisable or exchangeable for, Voting Securities (“ Exchangeable Securities ”) shall be deemed ratable if, and only if:
(a) In the case of dividends or other distributions payable in shares of a class of Common Stock, (i) only shares of Class A Common Stock are distributed with respect to Class A Common Stock; (ii) only shares of Class B Common Stock are distributed with respect to Class B Common Stock; and (iii) the number of shares of Class A Common Stock payable on each share of Class A Common Stock pursuant to such dividend or other distribution is equal to the number of shares of Class B Common Stock payable on each share of Class B Common Stock pursuant to such dividend or other distribution;
(b) In the case of dividends or other distributions payable in Voting Securities, either (x) such dividend or other distribution is identical with respect to each class of Common Stock and is approved by the affirmative vote of the holders of Class B Common Stock representing a majority of the voting power of the outstanding shares of Class B Common Stock, voting separately as a single class; or (y) (i) such Voting Securities are identical with respect to each class of Common Stock in all respects except as provided in subsections (ii), (iii) and (iv) of clause (y) of this Section 3.3(b) of this Article IV; (ii) the voting rights of such Voting Security paid to the holders of Class A Common Stock are substantially similar to those of the Class A Common Stock; (iii) the voting rights of such Voting Security paid to the holders of Class B Common Stock are substantially similar to those of the Class B Common Stock; (iv) such Voting Security paid to the holders of Class B Common Stock is convertible into the Voting Security paid to the holders of Class A Common Stock upon terms and conditions that are substantially similar to the terms and conditions applicable to the conversion of Class B Common Stock into Class A Common Stock; and (v) the number of such Voting Securities payable on each share of Class A Common Stock pursuant to such dividend or other distribution is equal to the number of such Voting Securities payable on each share of Class B Common Stock pursuant to such dividend or other distribution; and
(c) In the case of dividends or other distributions payable in Exchangeable Securities, either (x) such dividend or other distribution is identical with respect to each class of Common Stock and is approved by the affirmative vote of the holders of Class B Common Stock representing a majority of the voting power of the outstanding shares of Class B Common Stock, voting separately as a single class; or (y) (i) such Exchangeable Securities are identical with respect to each class of Common Stock in all respects except as provided in
 
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subsections (ii), (iii) and (iv) of clause (y) of this Section 3.3(c) of this Article IV; (ii) the voting rights of each Voting Security underlying the Exchangeable Security paid to the holders of Class A Common Stock are substantially similar to those of the Class A Common Stock; (iii) the voting rights of each Voting Security underlying the Exchangeable Security paid to the holders of Class B Common Stock are substantially similar to those of the Class B Common Stock; (iv) each Voting Security underlying the Exchangeable Security paid to the holders of Class B Common Stock is convertible into the Voting Security underlying the Exchangeable Security paid to the holders of Class A Common Stock upon terms and conditions that are substantially similar to the terms and conditions applicable to the conversion of Class B Common Stock into Class A Common Stock; and (v) the number of such Exchangeable Securities payable on each share of Class A Common Stock pursuant to such dividend or other distribution shall be equal to the number of such Exchangeable Securities payable on each share of Class B Common Stock pursuant to such dividend or other distribution.
3 .4. Reclassifications . Without the affirmative vote of the holders of Class A Common Stock representing a majority of the voting power of the outstanding shares of Class A Common Stock, voting separately as a single class, and the affirmative vote of the holders of Class B Common Stock representing a majority of the voting power of the outstanding shares of Class B Common Stock, voting separately as a single class, neither the shares of Class A Common Stock nor the shares of Class B Common Stock may be subdivided, combined, reclassified or otherwise changed unless the shares of the other class of Common Stock are concurrently subdivided, combined, reclassified or otherwise changed in the same proportion and in the same manner. For purposes of the preceding sentence, any reclassification or other change of Class A Common Stock or Class B Common Stock into (i) Voting Securities or (ii) Exchangeable Securities shall be deemed undertaken in the same proportion and in the same manner as shares of the other class of Common Stock if, and only if:
(a) In the case of a reclassification or other change of Class A Common Stock or Class B Common Stock into Voting Securities, either (x) such reclassification or other change is identical with respect to each class of Common Stock and is approved by the affirmative vote of the holders of Class B Common Stock representing a majority of the voting power of the outstanding shares of Class B Common Stock, voting separately as a single class; or (y) (i) such Voting Securities are identical with respect to each class of Common Stock in all respects except as provided in subsections (ii), (iii) and (iv) of clause (y) of this Section 3.4(a) of this Article IV; (ii) the voting rights of the Voting Security into which the Class A Common Stock has been reclassified or otherwise changed are substantially similar to those of the Class A Common Stock; (iii) the voting rights of the Voting Security into which the Class B Common Stock has been reclassified or otherwise changed are substantially similar to those of the Class B Common Stock; (iv) such Voting Security into which the Class B Common Stock has been reclassified or otherwise changed is convertible into the Voting Security into which the Class A Common Stock has been reclassified or otherwise changed upon terms and conditions that are substantially similar to the terms and conditions applicable to the conversion of Class B Common Stock into Class A Common Stock; and (v) the number of such Voting Securities into which the Class A Common Stock has been reclassified or otherwise changed is equal to the number of such Voting Securities into which the Class B Common Stock has been reclassified or otherwise changed; and
 
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(b) In the case of a reclassification or other change of Class A Common Stock or Class B Common Stock into Exchangeable Securities, either (x) such reclassification or other change is identical with respect to each class of Common Stock and approved by the affirmative vote of the holders of Class B Common Stock representing a majority of the voting power of the outstanding shares of Class B Common Stock; or (y) (i) such Exchangeable Securities are identical with respect to each class of Common Stock in all respects except as provided in subsections (ii), (iii) and (iv) of clause (y) of this Section 3.4(b) of this Article IV; (ii) the voting rights of each Voting Security underlying the Exchangeable Security into which the Class A Common Stock has been reclassified or otherwise changed are substantially similar to those of the Class A Common Stock; (iii) the voting rights of each Voting Security underlying the Exchangeable Security into which the Class B Common Stock has been reclassified or otherwise changed are substantially similar to those of the Class B Common Stock; (iv) each Voting Security underlying the Exchangeable Security into which the Class B Common Stock has been reclassified or otherwise changed is convertible into each Voting Security underlying the Exchangeable Security into which the Class A Common Stock has been reclassified or otherwise changed upon terms and conditions that are substantially similar to the terms and conditions applicable to the conversion of Class B Common Stock into Class A Common Stock; and (v) the number of such Exchangeable Securities into which the Class A Common Stock has been reclassified or otherwise changed is equal to the number of such Exchangeable Securities into which the Class B Common Stock has been reclassified or otherwise changed.
3.5. Liquidation . Upon the dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, the holders of Common Stock shall be entitled to receive ratably all assets of the Corporation available for distribution to its stockholders, subject to any preferential or other rights of the holders of any series of Preferred Stock then outstanding.
3.6. Merger . The affirmative vote of the holders of Class A Common Stock representing a majority of the voting power of the outstanding shares of Class A Common Stock, voting separately as a single class, and the affirmative vote of the holders of Class B Common Stock representing a majority of the voting power of the outstanding shares of Class B Common Stock, voting separately as a single class, shall be required to approve any merger or consolidation of the Corporation (whether or not the Corporation is the surviving entity) requiring a vote of the Corporation’s stockholders under applicable law unless, upon the consummation of such merger or consolidation, holders of each class of Common Stock will receive (or be entitled to receive) the same per share consideration in the merger. Without limiting the circumstances in which the holders of each class of Common Stock may be deemed to have received equal per share consideration upon the consummation of a merger or consolidation of the Corporation (whether or not the Corporation is the surviving entity), for purposes of the preceding sentence, holders of each class of Common Stock will be deemed to have received the same per share consideration of (i) voting securities of the Corporation or any other entity (“ Merger Voting Securities ”) or (ii) securities convertible into, or exchangeable for, Merger Voting Securities (“ Merger Exchangeable Securities ”) if:
(a) With respect to Merger Voting Securities, (i) the Merger Voting Securities to be received by holders of Class A Common Stock and Class B Common Stock are
 
6

identical with respect to each class of Common Stock in all respects except as provided in subsections (ii), (iii) and (iv) of this Section 3.6(a) of this Article IV; (ii) the voting rights of the Merger Voting Security to be received by the holders of Class A Common Stock are substantially similar to those of the Class A Common Stock; (iii) the voting rights of the Merger Voting Security to be received by the holders of Class B Common Stock are substantially similar to those of the Class B Common Stock; (iv) the Merger Voting Security to be received by the holders of Class B Common Stock is convertible into the Merger Voting Security to be received by the holders of Class A Common Stock upon terms and conditions that are substantially similar to the terms and conditions applicable to the conversion of Class B Common Stock into Class A Common Stock; and (v) the number of Merger Voting Securities to be received for each share of Class A Common Stock is equal to the number of Merger Voting Securities to be received for each share of Class B Common Stock; and
(b) With respect to Merger Exchangeable Securities, (i) the Merger Exchangeable Securities to be received by holders of Class A Common Stock and Class B Common Stock are identical with respect to each class of Common Stock in all respects except as provided in subsections (ii), (iii) and (iv) of this Section 3.6(b) of this Article IV; (ii) the voting rights of each Merger Voting Security underlying the Merger Exchangeable Security to be received by the holders of Class A Common Stock are substantially similar to those of the Class A Common Stock; (iii) the voting rights of each Merger Voting Security underlying the Merger Exchangeable Security to be received by the holders of Class B Common Stock are substantially similar to those of the Class B Common Stock; (iv) each Merger Voting Security underlying the Merger Exchangeable Security to be received by the holders of Class B Common Stock is convertible to each Merger Voting Security underlying the Merger Exchangeable Security to be received by the holders of Class A Common Stock upon terms and conditions that are substantially similar to the terms and conditions applicable to the conversion of Class B Common Stock into Class A Common Stock; and (v) the number of Merger Exchangeable Securities to be received for each share of Class A Common Stock is equal to the number of Merger Exchangeable Securities to be received for each share of Class B Common Stock.
3.7. Determinations of “Substantially Similar” and “Same Per Share Consideration” . For purposes of Sections 3.3, 3.4, and 3.6 of this Article IV, the Board of Directors shall have the sole power and authority to make all determinations regarding whether or not a characteristic of a security is “substantially similar” to that of another security and for purposes of Section 3.6 of this Article IV, the Board of Directors shall have the sole power and authority to make all determinations regarding whether or not holders of each class of Common Stock will be entitled to receive the same per share consideration. All such determinations made by the Board of Directors shall be final, conclusive and binding.
ARTICLE V: CLASS B COMMON STOCK CONVERSION
1. Optional Conversion . Each share of Class B Common Stock shall be convertible into one (1) fully paid and nonassessable share of Class A Common Stock at the option of the holder thereof at any time upon written notice to the Corporation. Before any record holder of Class B Common Stock shall be entitled to convert any of such holder’s shares of such Class B Common Stock into shares of Class A Common Stock, such holder shall deliver an instruction, duly signed and authenticated in accordance with any procedures set forth in the
 
7

Bylaws of the Corporation or any policies of the Corporation then in effect, at the principal corporate office of the Corporation or of any transfer agent for the Class B Common Stock, and shall give written notice to the Corporation at its principal corporate office of such holder’s election to convert the same and shall state therein the name or names in which the shares of Class A Common Stock issuable on conversion thereof are to be registered on the books of the Corporation. The Corporation shall, as soon as practicable thereafter, register on the Corporation’s books ownership of the number of shares of Class A Common Stock to which such record holder of Class B Common Stock, or to which the nominee or nominees of such record holder, shall be entitled as aforesaid. Such conversion shall be deemed to have occurred immediately prior the close of business on the date such notice of the election to convert is received by the Corporation, and the person or persons entitled to receive the shares of Class A Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Class A Common Stock as of such date.
2. Automatic Conversion . Each share of Class B Common Stock shall automatically be converted into one (1) fully paid and nonassessable share of Class A Common Stock immediately prior to the close of business on the earlier of the date, if any, (i) on which the outstanding shares of Class B Common Stock represent less than ten percent (10%) of the aggregate number of shares of Common Stock then outstanding, or (ii) specified by the affirmative vote of the holders of Class B Common Stock representing not less than a majority of the voting power of the outstanding shares of Class B Common Stock, voting separately as a single class (either of the events so specified being the “ Automatic Conversion ” and the date on which such event occurs, the “ Automatic Conversion Date ”). The Corporation shall provide notice of the Automatic Conversion of shares of Class B Common Stock pursuant to this Section 2 to record holders of such shares of Class B Common Stock as soon as practicable following the Automatic Conversion; provided , however , that the Corporation may satisfy such notice requirements by providing such notice prior to the Automatic Conversion. Such notice shall be provided by any means then permitted by the General Corporation Law; provided , however , that no failure to give such notice nor any defect therein shall affect the validity of the Automatic Conversion. Upon and after the Automatic Conversion, the person registered on the Corporation’s books as the record holder of the shares of Class B Common Stock so converted immediately prior to the Automatic Conversion shall be registered on the Corporation’s books as the record holder of the shares of Class A Common Stock issued upon Automatic Conversion of such shares of Class B Common Stock, without further action on the part of the record holder thereof. Immediately upon the effectiveness of the Automatic Conversion, the rights of the holders of shares of Class B Common Stock as such shall cease, and the holders shall be treated for all purposes as having become the record holder or holders of such shares of Class A Common Stock into which such shares of Class B Common Stock were converted.
3. Conversion on Transfer . Each share of Class B Common Stock shall automatically, without further action by the Corporation or the holder thereof, be converted into one (1) fully paid and nonassessable share of Class A Common Stock, upon the occurrence of a Transfer (as defined below), other than a Permitted Transfer (as defined below), of such share of Class B Common Stock.
4. Policies and Procedures . The Corporation may, from time to time, establish such policies and procedures, not in violation of applicable law or this Restated Certificate of
 
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Incorporation or the Bylaws, relating to the conversion of shares of the Class B Common Stock into shares of Class A Common Stock as it may deem necessary or advisable. If the Corporation has reason to believe that a Transfer that is not a Permitted Transfer has occurred, the Corporation may request that the purported transferor furnish affidavits or other evidence to the Corporation as it reasonably deems necessary to determine whether a Transfer that is not a Permitted Transfer has occurred, and if such transferor does not within ten (10) days after the date of such request furnish sufficient (as determined by the Board of Directors) evidence to the Corporation (in the manner provided in the request) to enable the Corporation to determine that no such Transfer has occurred, any such shares of Class B Common Stock, to the extent not previously converted, shall be automatically converted into shares of Class A Common Stock and such conversion shall thereupon be registered on the books and records of the Corporation.
5. Definitions .
a) “ Family Member ” shall mean with respect to any natural person who is a Qualified Stockholder (as defined below), the spouse, domestic partner, parents, grandparents, lineal descendents, siblings and lineal descendants of siblings of such Qualified Stockholder. Lineal descendants shall include adopted persons, but only so long as they are adopted during minority.
b) “ Qualified Stockholder ” shall mean (a) the record holder of a share of Class B Common Stock; (b) each natural person who, prior to the Effective Time, Transferred shares of capital stock of the Corporation to a Permitted Entity that is or becomes a Qualified Stockholder; (c) each natural person who Transferred shares of, or equity awards for, Class B Common Stock (including any Option exercisable or Convertible Security exchangeable for or convertible into shares of Class B Common Stock) to a Permitted Entity that is or becomes a Qualified Stockholder; and (d) a Permitted Transferee.
c) “ Permitted Entity ” shall mean with respect to a Qualified Stockholder (a) a Permitted Trust (as defined below) solely for the benefit of (i) such Qualified Stockholder, (ii) one or more Family Members of such Qualified Stockholder and/or (iii) any other Permitted Entity of such Qualified Stockholder, or (b) any general partnership, limited partnership, limited liability company, corporation or other entity exclusively owned by (i) such Qualified Stockholder, (ii) one or more Family Members of such Qualified Stockholder and/or (iii) any other Permitted Entity of such Qualified Stockholder.
 
9

d) “ Transfer ” of a share of Class B Common Stock shall mean any sale, assignment, transfer, conveyance, hypothecation or other transfer or disposition of such share or any legal or beneficial interest in such share, whether or not for value and whether voluntary or involuntary or by operation of law, including, without limitation, a transfer of a share of Class B Common Stock to a broker or other nominee (regardless of whether there is a corresponding change in beneficial ownership), or the transfer of, or entering into a binding agreement with respect to, Voting Control (as defined below) over such share by proxy or otherwise; provided , however , that the following shall not be considered a “Transfer” within the meaning of this Section 5:
(i) the granting of a revocable proxy to officers or directors of the Corporation at the request of the Board of Directors in connection with actions to be taken at an annual or special meeting of stockholders;
(ii) entering into a voting trust, agreement or arrangement (with or without granting a proxy) solely with stockholders who are holders of Class B Common Stock that (A) is disclosed either in a Schedule 13D filed with the Securities and Exchange Commission or in writing to the Secretary of the Corporation, (B) either has a term not exceeding one (1) year or is terminable by the holder of the shares subject thereto at any time and (C) does not involve any payment of cash, securities, property or other consideration to the holder of the shares subject thereto other than the mutual promise to vote shares in a designated manner; or
(iii) the pledge of shares of Class B Common Stock by a stockholder that creates a mere security interest in such shares pursuant to a bona fide loan or indebtedness transaction for so long as such stockholder continues to exercise Voting Control over such pledged shares; provided , however , that a foreclosure on such shares or other similar action by the pledgee shall constitute a Transfer unless such foreclosure or similar action qualifies as a Permitted Transfer.
A Transfer shall also be deemed to have occurred with respect to a share of Class B Common Stock beneficially held by (i) an entity that is a Permitted Entity, if there occurs any act or circumstance that causes such entity to no longer be a Permitted Entity or (ii) an entity that is a Qualified Stockholder, if there occurs a Transfer on a cumulative basis of a majority of the voting power of the voting securities of such entity or any direct or indirect Parent of such entity, other than a Transfer to parties that are holders of voting securities of any such entity or Parent of such entity.
e) “ Parent ” of an entity shall mean any entity that directly or indirectly owns or controls a majority of the voting power of the voting securities of such entity.
f) “ Permitted Transfer ” shall mean, and be restricted to, any Transfer of a share of Class B Common Stock:
(i) by a Qualified Stockholder to (A) one or more Family Members of such Qualified Stockholder, or (B) any Permitted Entity of such Qualified Stockholder; or
(ii) by a Permitted Entity of a Qualified Stockholder to (A) such Qualified Stockholder or one or more Family Members of such Qualified Stockholder, or (B) any other Permitted Entity of such Qualified Stockholder.
g) “ Permitted Transferee ” shall mean a transferee of shares of Class B Common Stock received in a Transfer that constitutes a Permitted Transfer.
h) “ Permitted Trust ” shall mean a bona fide trust where each trustee is (i) a Qualified Stockholder, (ii) a Family Member or (iii) a professional in the business of providing trustee services, including private professional fiduciaries, trust companies and bank trust departments.
 
10

i) “ Voting Control ” shall mean, with respect to a share of Class B Common Stock, the power (whether exclusive or shared) to vote or direct the voting of such share by proxy, voting agreement or otherwise.
j) “ Convertible Securities ” shall mean securities (other than shares of Class B Common Stock) convertible into or exchangeable for Class A Common Stock or Class B Common Stock, either directly or indirectly.
k) “ Options ” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Class A Common Stock, Class B Common Stock or Convertible Securities.
6. Status of Converted Stock . In the event any shares of Class B Common Stock are converted into shares of Class A Common Stock pursuant to this Article V , the shares of Class B Common Stock so converted shall be retired and shall not be reissued by the Corporation.
7. Effect of Conversion on Payment of Dividends . Notwithstanding anything to the contrary in Sections 1, 2 or 3 of this Article V, if the date on which any share of Class B Common Stock is converted into Class A Common Stock pursuant to the provisions of Sections 1, 2 or 3 of this Article V occurs after the record date for the determination of the holders of Class B Common Stock entitled to receive any dividend or distribution to be paid on the shares of Class B Common Stock, the holder of such shares of Class B Common Stock as of such record date will be entitled to receive such dividend or distribution on such payment date; provided , that, notwithstanding any other provision of this Restated Certificate of Incorporation, to the extent that any such dividend or distribution is payable in shares of Class B Common Stock (or in the Voting Securities or Exchangeable Securities payable on shares of Class B Common Stock), such dividend or distribution shall be deemed to have been declared, and shall be payable in, shares of Class A Common Stock (or, if applicable, the Voting Securities or Exchangeable Securities payable on shares of Class A Common Stock) and no shares of Class B Common Stock (or the Voting Securities or Exchangeable Securities payable on shares of Class B Common Stock) shall be issued in payment thereof.
8. Reservation . The Corporation shall at all times reserve and keep available, out of its authorized and unissued shares of Class A Common Stock, solely for the purpose of effecting conversions of shares of Class B Common Stock into Class A Common Stock, such number of duly authorized shares of Class A Common Stock as shall from time to time be sufficient to effect the conversion of all then outstanding shares of Class B Common Stock. If at any time the number of authorized and unissued shares of Class A Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of Class B Common Stock, the Corporation shall promptly take such corporate action as may be necessary to increase its authorized but unissued shares of Class A Common Stock to such number of shares as shall be sufficient for such purpose, including, without limitation, obtaining the requisite stockholder approval of any necessary amendment to the Certificate of Incorporation. All shares of Class A Common Stock which are so issuable shall, when issued, be duly and validly issued, fully paid and non-assessable shares. The Corporation shall take all such action as may be necessary to ensure that all such shares of Class A Common Stock may be so issued without violation of any applicable law or regulation.
 
11

ARTICLE VI: AMENDMENT OF BYLAWS
The Board of Directors of the Corporation shall have the power to adopt, amend or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal of the Bylaws of the Corporation by the Board of Directors shall require the approval of a majority of the Whole Board. For purposes of this Restated Certificate of Incorporation, the term “ Whole Board ” shall mean the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships. The stockholders shall also have power to adopt, amend or repeal the Bylaws of the Corporation; provided , however , that, notwithstanding any other provision of this Restated Certificate of Incorporation (including any Certificate of Designation) or any provision of law that might otherwise permit a lesser or no vote, but in addition to any vote of the holders of any class or series of stock of the Corporation required by law or by this Restated Certificate of Incorporation (including any Certificate of Designation), the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for stockholders to adopt, amend or repeal any provision of the Bylaws of the Corporation.
ARTICLE VII: MATTERS RELATING TO THE BOARD OF DIRECTORS
1. Director Powers . The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as otherwise provided by law.
2. Number of Directors . Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, the total number of directors constituting the Whole Board shall be fixed from time to time exclusively by resolution adopted by a majority of the Whole Board.
3. Classified Board . Subject to the special rights of the holders of any series of Preferred Stock to elect directors, immediately following the Automatic Conversion Date, the directors shall be divided into three classes designated as Class I, Class II and Class III, respectively (the “ Classified Board ”). Each class shall consist, as nearly as may be possible, of one third of the Whole Board. The Board of Directors is authorized to assign members of the Board of Directors already in office to such classes of the Classified Board, which assignments shall become effective at the same time the Classified Board becomes effective. The initial term of office of the Class I directors shall expire at the Corporation’s first annual meeting of stockholders following the Automatic Conversion Date, the initial term of office of the Class II directors shall expire at the Corporation’s second annual meeting of stockholders following the Automatic Conversion Date, and the initial term of office of the Class III directors shall expire at the Corporation’s third annual meeting of stockholders following the Automatic Conversion Date. At each annual meeting of stockholders following the Automatic Conversion Date, directors elected to succeed those directors of the class whose terms then expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election.
 
12

4. Term and Removal . Each director shall hold office until the annual meeting at which such director’s term expires and until such director’s successor is elected and qualified, or until such director’s earlier death, resignation, disqualification or removal. Prior to the Automatic Conversion Date, subject to the special rights of the holders of any series of Preferred Stock to elect directors, directors may be removed with or without cause by the affirmative vote of the holders of a majority of the voting power of the then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. From and after the Automatic Conversion Date, subject to the special rights of the holders of any series of Preferred Stock, directors may be removed only for cause and only by the affirmative vote of the holders of two-thirds of the voting power of the then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
5. Vacancies and Newly Created Directorships . Subject to the special rights of the holders of any series of Preferred Stock to elect directors, any vacancy occurring in the Board of Directors for any cause, and any newly created directorship resulting from any increase in the authorized number of directors, shall be filled only by the affirmative vote of a majority of the directors then in office, even if less than a quorum, or by a sole remaining director, and not by the stockholders. Any director elected in accordance with the preceding sentence shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of such director expires or until such director’s successor shall have been duly elected and qualified. No decrease in the authorized number of directors shall shorten the term of any incumbent director.
6. Vote by Ballot . Election of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.
ARTICLE VIII: DIRECTOR LIABILITY
1. Limitation of Liability . To the fullest extent permitted by law, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Without limiting the effect of the preceding sentence, if the General Corporation Law is hereafter amended to authorize the further elimination or limitation of the liability of a director, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law, as so amended.
2. Change in Rights . Neither any amendment nor repeal of this Article VIII, nor the adoption of any provision of this Restated Certificate of Incorporation inconsistent with this Article VIII, shall eliminate, reduce or otherwise adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such amendment, repeal or adoption of such an inconsistent provision.
ARTICLE IX: MATTERS RELATING TO STOCKHOLDERS
1. No Action by Written Consent of Stockholders . Subject to the rights of any series of Preferred Stock then outstanding, no action shall be taken by the stockholders of the Corporation except at a duly called annual or special meeting of stockholders and no action shall be taken by the stockholders by written consent.
 
13

2. Special Meeting of Stockholders . Prior to the Automatic Conversion Date, special meetings of the stockholders of the Corporation may be called by holders of at least 10% of the outstanding voting power of all then-outstanding shares of stock, the Chairperson of the Board, the Chief Executive Officer, the President, or the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board. From and after the Automatic Conversion Date, special meetings of the stockholders of the Corporation may be called only by the Chairperson of the Board, the Chief Executive Officer, the President, or the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board.
3. Advance Notice of Stockholder Nominations and Business Transacted at Special Meetings . Advance notice of stockholder nominations for the election of directors of the Corporation and of business to be brought by stockholders before any meeting of stockholders of the Corporation shall be given in the manner provided in the Bylaws of the Corporation. Business transacted at special meetings of stockholders shall be confined to the purpose or purposes stated in the notice of meeting.
ARTICLE X: SEVERABILITY
If any provision of this Restated Certificate of Incorporation shall be held to be invalid, illegal, or unenforceable, then such provision shall nonetheless be enforced to the maximum extent possible consistent with such holding and the remaining provisions of this Restated Certificate of Incorporation (including without limitation, all portions of any section of this Restated Certificate of Incorporation containing any such provision held to be invalid, illegal, or unenforceable, that are not themselves invalid, illegal, or unenforceable) shall remain in full force and effect.
ARTICLE XI: AMENDMENT OF CERTIFICATE OF INCORPORATION
1. General . The Corporation reserves the right to amend or repeal any provision contained in this Restated Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and all rights conferred upon stockholders are granted subject to this reservation; provided , however , that, notwithstanding any other provision of this Restated Certificate of Incorporation (including any Certificate of Designation) or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock of the Corporation required by law or by this Restated Certificate of Incorporation (including any Certificate of Designation), and subject to Sections 1 and 2.1 of Article IV, the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of all of the then-outstanding shares of the 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 or repeal, or adopt any provision inconsistent with, this Section 1 of this Article XI, Section 2 of Article IV, or Article V, Article VI, Article VII, Article VIII, Article IX, Article X or Article XII.
2. Changes to or Inconsistent with Section 3 of Article IV . Notwithstanding any other provision of this Restated Certificate of Incorporation (including any Certificate of
 
14

Designation) or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock of the Corporation required by law or by this Restated Certificate of Incorporation (including any Certificate of Designation), the affirmative vote of the holders of Class A Common Stock representing at least seventy-five percent (75%) of the voting power of the outstanding shares of Class A Common Stock, voting separately as a single class, and the affirmative vote of the holders of Class B Common Stock representing at least seventy-five percent (75%) of the voting power of the outstanding shares of Class B Common Stock, voting separately as a single class, shall be required to amend or repeal, or to adopt any provision inconsistent with, Section 3 of Article IV or this Section 2 of this Article XI.
ARTICLE XII: CHOICE OF FORUM
Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation; (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders; (c) any action asserting a claim arising pursuant to any provision of the General Corporation Law, this Restated Certificate of Incorporation or the Bylaws; (d) any action to interpret, apply, enforce or determine the validity of this Restated Certificate of Incorporation or the Bylaws; or (e) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article XII.
 
15

Exhibit 3.03

 

 
 
WOODMAN LABS, INC.
(A Delaware Corporation)
BYLAWS
As Adopted August 24, 2011

 

BYLAWS
OF
WOODMAN LABS, INC.
(a Delaware corporation)
Table of Contents

	  	 	Page	  	
		
ARTICLE I         STOCKHOLDERS	  	 	1	  	
			
Section 1.1:	  	Annual Meetings	  	 	1	  	
			
Section 1.2:	  	Special Meetings	  	 	1	  	
			
Section 1.3:	  	Notice of Meetings	  	 	1	  	
			
Section 1.4:	  	Adjournments	  	 	1	  	
			
Section 1.5:	  	Quorum	  	 	2	  	
			
Section 1.6:	  	Organization.	  	 	2	  	
			
Section 1.7:	  	Voting; Proxies	  	 	2	  	
			
Section 1.8:	  	Fixing Date for Determination of Stockholders of Record	  	 	3	  	
			
Section 1.9:	  	List of Stockholders Entitled to Vote	  	 	3	  	
			
Section 1.10:	  	Action by Written Consent of Stockholders	  	 	3	  	
			
Section 1.11:	  	Inspectors of Elections	  	 	4	  	
		
ARTICLE II         BOARD OF DIRECTORS	  	 	6	  	
			
Section 2.1:	  	Number; Qualifications	  	 	6	  	
			
Section 2.2:	  	Election; Resignation; Removal; Vacancies	  	 	6	  	
			
Section 2.3:	  	Regular Meetings	  	 	6	  	
			
Section 2.4:	  	Special Meetings	  	 	6	  	
			
Section 2.5:	  	Remote Meetings Permitted	  	 	6	  	
			
Section 2.6:	  	Quorum; Vote Required for Action	  	 	7	  	
			
Section 2.7:	  	Organization	  	 	7	  	
			
Section 2.8:	  	Written Action by Directors	  	 	7	  	
			
Section 2.9:	  	Powers	  	 	7	  	
			
Section 2.10:	  	Compensation of Directors	  	 	7	  	
		
ARTICLE III         COMMITTEES	  	 	7	  	
			
Section 3.1:	  	Committees	  	 	7	  	
			
Section 3.2:	  	Committee Rules	  	 	8	  	
 
i

TABLE OF CONTENTS
(continued)

	  	 	Page	  	
		
ARTICLE IV    OFFICERS	  	 	8	  	
			
Section 4.1:	  	Generally	  	 	8	  	
			
Section 4.2:	  	Chief Executive Officer	  	 	8	  	
			
Section 4.3:	  	Chairperson of the Board	  	 	9	  	
			
Section 4.4:	  	President	  	 	9	  	
			
Section 4.5:	  	Vice President	  	 	9	  	
			
Section 4.6:	  	Chief Financial Officer	  	 	9	  	
			
Section 4.7:	  	Treasurer	  	 	9	  	
			
Section 4.8:	  	Secretary	  	 	9	  	
			
Section 4.9:	  	Delegation of Authority	  	 	10	  	
			
Section 4.10:	  	Removal	  	 	10	  	
		
ARTICLE V     STOCK	  	 	10	  	
			
Section 5.1:	  	Certificates	  	 	10	  	
			
Section 5.2:	  	Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates	  	 	10	  	
			
Section 5.3:	  	Other Regulations	  	 	10	  	
		
ARTICLE VI   INDEMNIFICATION	  	 	10	  	
			
Section 6.1	  	Indemnification of Officers and Directors	  	 	10	  	
			
Section 6.2:	  	Advance of Expenses	  	 	11	  	
			
Section 6.3:	  	Non-Exclusivity of Rights	  	 	11	  	
			
Section 6.4:	  	Indemnification Contracts	  	 	11	  	
			
Section 6.5:	  	Effect of Amendment	  	 	12	  	
		
ARTICLE VII   NOTICES	  	 	12	  	
			
Section 7.1:	  	Notice	  	 	12	  	
			
Section 7.2:	  	Waiver of Notice	  	 	13	  	
		
ARTICLE VIII     INTERESTED DIRECTORS	  	 	13	  	
			
Section 8.1:	  	Interested Directors; Quorum	  	 	13	  	
		
ARTICLE IX     MISCELLANEOUS	  	 	13	  	
			
Section 9.1:	  	Fiscal Year	  	 	13	  	
			
Section 9.2:	  	Seal	  	 	13	  	
 
ii

TABLE OF CONTENTS
(continued)

	  		  	 	Page	  	
			
Section 9.3:	  	Form of Records	  	 	13	  	
			
Section 9.4:	  	Reliance Upon Books and Records	  	 	14	  	
			
Section 9.5:	  	Certificate of Incorporation Governs	  	 	14	  	
			
Section 9.6:	  	Severability	  	 	14	  	
		
ARTICLE X         AMENDMENT	  	 	14	  	
			
Section 10.1:	  	Amendments	  	 	14	  	
 
iii

BYLAWS
OF
WOODMAN LABS, INC.
(a Delaware corporation)
August 24, 2011
ARTICLE I
STOCKHOLDERS
Section 1.1 : Annual Meetings . Unless directors are elected by written consent in lieu of an annual meeting as permitted by Section 211 of the Delaware General Corporation Law, an annual meeting of stockholders shall be held for the election of directors at such date and time as the Board of Directors shall each year fix. The meeting may be held either at a place, within or without the State of Delaware, or by means of remote communication as the Board of Directors in its sole discretion may determine. Any other proper business may be transacted at the annual meeting.
Section 1.2 : Special Meetings . Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, the Chairperson of the Board of Directors, the Chief Executive Officer, the President, the holders of shares of the Corporation that are entitled to cast not less than ten percent (10%) of the total number of votes entitled to be cast by all stockholders at such meeting, or by a majority of the members of the Board of Directors. Special meetings may not be called by any other person or persons.
Section 1.3 : Notice of Meetings . Notice of all meetings of stockholders shall be given in writing or by electronic transmission in the manner provided by law (including, without limitation, as set forth in Section 7.1(b) of these Bylaws) stating the date, time and place, if any, of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by applicable law or the Certificate of Incorporation of the Corporation, such notice shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting.
Section 1.4 : Adjournments . The chair 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 discussion as seems to him or her to be in order. The chair shall have the power to adjourn the meeting to another time, date and place (if any). Any meeting of stockholders may adjourn from time to time, and notice need not be given of any such adjourned meeting if the time, date and place (if any) thereof are announced at the meeting at which the adjournment is taken; provided , however , that if the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, then a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting the Corporation may transact any business that might have been transacted at the original meeting.
 
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Section 1.5 : Quorum . At each meeting of stockholders the holders of a majority of the shares of stock entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business, except if otherwise required by applicable law. If a quorum shall fail to attend any meeting, the chairperson of the meeting or the holders of a majority of the shares entitled to vote who are present, in person or by proxy, at the meeting may adjourn the meeting. Shares of the Corporation’s stock belonging to the Corporation (or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation are held, directly or indirectly, by the Corporation), shall neither be entitled to vote nor be counted for quorum purposes; provided , however , that the foregoing shall not limit the right of the Corporation or any other corporation to vote any shares of the Corporation’s stock held by it in a fiduciary capacity and to count such shares for purposes of determining a quorum.
Section 1.6 : Organization . Meetings of stockholders shall be presided over by such person as the Board of Directors may designate, or, in the absence of such a person, the Chairperson of the Board of Directors, or, in the absence of such person, the President of the Corporation, or, in the absence of such person, such person as may be chosen by the holders of a majority of the shares entitled to vote who are present, in person or by proxy, at the meeting. Such person shall be chairperson of the meeting and, subject to Section 1.11 hereof, shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seems to him or her to be in order. The Secretary of the Corporation shall act as secretary of the meeting, but in such person’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 1.7 : Voting; Proxies . Unless otherwise provided by law or the Certificate of Incorporation, and subject to the provisions of Section 1.8 of these Bylaws, each stockholder shall be entitled to one (1) vote for each share of stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders, or to take corporate action by written consent without a meeting, may authorize another person or persons to act for such stockholder by proxy. Such a proxy may be prepared, transmitted and delivered in any manner permitted by applicable law. Voting at meetings of stockholders need not be by written ballot unless such is demanded at the meeting before voting begins by a stockholder or stockholders holding shares representing at least one percent (1%) of the votes entitled to vote at such meeting, or by such stockholder’s or stockholders’ proxy; provided , however , that an election of directors shall be by written ballot if demand is so made by any stockholder at the meeting before voting begins. If a vote is to be taken by written ballot, then each such ballot shall state the name of the stockholder or proxy voting and such other information as the chairperson of the meeting deems appropriate and, if authorized by the Board of Directors, the ballot may be submitted by electronic transmission in the manner provided by law. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Unless otherwise provided by applicable law, the Certificate of Incorporation or these Bylaws, every matter other than the election of directors shall be decided by the affirmative vote of the holders of a majority of the shares of stock entitled to vote thereon that are present in person or represented by proxy at the meeting and are voted for or against the matter.
 
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Section 1.8 : Fixing Date for Determination of Stockholders of Record . In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to take corporate action by written consent without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or 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, in advance, a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. If no record date is fixed by the Board of Directors, then the record date shall be as provided by applicable law. 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 the adjourned meeting.
Section 1.9 : List of Stockholders Entitled to Vote . A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either on a reasonably accessible electronic network as permitted by law (provided that the information required to gain access to the list is provided with the notice of the meeting) or during ordinary business hours at the principal place of business of the Corporation. If the meeting is held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present at the meeting. If the meeting is held solely by means of remote communication, then the list shall 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 the list shall be provided with the notice of the meeting.
Section 1.10 : Action by Written Consent of Stockholders .
(a) Procedure . Unless otherwise provided by the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed in the manner permitted by law by the holders of outstanding stock having not less than the number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Written stockholder consents shall bear the date of signature of each stockholder who signs the consent in the manner permitted by law and shall be delivered to the Corporation as provided in subsection (b) below. No written consent shall be effective to take the action set forth therein unless, within sixty (60) days of the earliest dated consent delivered to the Corporation in the manner provided above, written consents signed by a sufficient number of stockholders to take the action set forth therein are delivered to the Corporation in the manner provided above.
 
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(b) A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this section, provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the Corporation can determine (i) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (ii) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested. Notwithstanding the foregoing limitations on delivery, consents given by telegram, cablegram or other electronic transmission may be otherwise delivered to the principal place of business of the Corporation or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner provided by resolution of the Board of Directors of the Corporation.
(c) Notice of Consent . Prompt notice of the taking of corporate action by stockholders without a meeting by less than unanimous written consent of the stockholders shall be given to those stockholders who have not consented thereto in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation as required by law. In the case of a Certificate Action (as defined below), if the Delaware General Corporation Law so requires, such notice shall be given prior to filing of the certificate in question. If the action which is consented to requires the filing of a certificate under the Delaware General Corporation Law (a “ Certificate Action ”), then if the Delaware General Corporation Law so requires, the certificate so filed shall state that written stockholder consent has been given in accordance with Section 228 of the Delaware General Corporation Law and that written notice of the taking of corporate action by stockholders without a meeting as described herein has been given as provided in such section.
Section 1.11 : Inspectors of Elections .
(a) Applicability . Unless otherwise provided in the Corporation’s Certificate of Incorporation or required by the Delaware General Corporation Law, the following provisions of this Section 1.11 shall apply only if and when the Corporation has a class of voting stock that is:
 
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(i) listed on a national securities exchange; (ii) authorized for quotation on an automated interdealer quotation system of a registered national securities association; or (iii) held of record by more than 2,000 stockholders; in all other cases, observance of the provisions of this Section 1.11 shall be optional, and at the discretion of the Corporation.
(b) Appointment . The Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting.
(c) Inspector’s Oath . Each inspector of election, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability.
(d) Duties of Inspectors . At a meeting of stockholders, the inspectors of election shall (i) ascertain the number of shares outstanding and the voting power of each share, (ii) determine the shares represented at a meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period of time a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares represented at the meeting, and their count of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors.
(e) Opening and Closing of Polls . The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced by the inspectors at the meeting. No ballot, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery upon application by a stockholder shall determine otherwise.
(f) Determinations . In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted with those proxies, any information provided in connection with proxies in accordance with Section 212(c)(2) of the Delaware General Corporation Law, ballots and the regular books and records of the Corporation, except that the inspectors may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for the limited purpose permitted herein, the inspectors at the time they make their certification of their determinations pursuant to this Section 1.11 shall specify the precise information considered by them, including the person or persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information is accurate and reliable.
 
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ARTICLE II
BOARD OF DIRECTORS
Section 2.1 : Number; Qualifications . The Board of Directors shall consist of one or more members. The initial number of directors shall be one (1), and thereafter shall be fixed from time to time by resolution of the Board of Directors. No decrease in the authorized number of directors constituting the Board of Directors shall shorten the term of any incumbent director. Directors need not be stockholders of the Corporation.
Section 2.2 : Election; Resignation; Removal; Vacancies . The Board of Directors shall initially consist of the person or persons elected by the incorporator or named in the Corporation’s initial Certificate of Incorporation. Each director shall hold office until such director’s successor is elected and qualified, or until such director’s earlier death, resignation or removal. Any director may resign at any time upon notice to the Corporation given in writing or by electronic transmission. Subject to the rights of any holders of Preferred Stock then outstanding: (i) any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors and (ii) any vacancy occurring in the Board of Directors for any cause, and any newly created directorship resulting from any increase in the authorized number of directors to be elected by all stockholders having the right to vote as a single class, may be filled by the stockholders, by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
Section 2.3 : Regular Meetings . Regular meetings of the Board of Directors may be held at such places, within or without the State of Delaware, and at such times as the Board of Directors may from time to time determine. Notice of regular meetings need not be given if the date, times and places thereof are fixed by resolution of the Board of Directors.
Section 2.4 : Special Meetings . Special meetings of the Board of Directors may be called by the Chairperson of the Board of Directors, the President or a majority of the members of the Board of Directors then in office and may be held at any time, date or place, within or without the State of Delaware, as the person or persons calling the meeting shall fix. Notice of the time, date and place of such meeting shall be given, orally, in writing or by electronic transmission (including electronic mail), by the person or persons calling the meeting to all directors at least four (4) days before the meeting if the notice is mailed, or at least twenty-four (24) hours before the meeting if such notice is given by telephone, hand delivery, telegram, telex, mailgram, facsimile, electronic mail or other means of electronic transmission. Unless otherwise indicated in the notice, any and all business may be transacted at a special meeting.
Section 2.5 : Remote Meetings Permitted . Members of the Board of Directors, or any committee of the Board, may participate in a meeting of the Board of Directors or such 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 participation in a meeting pursuant to conference telephone or other communications equipment shall constitute presence in person at such meeting.
 
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Section 2.6 : Quorum; Vote Required for Action . At all meetings of the Board of Directors a majority of the total number of authorized directors shall constitute a quorum for the transaction of business. Except as otherwise provided herein or in the Certificate of Incorporation, or required by law, the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
Section 2.7 : Organization . Meetings of the Board of Directors shall be presided over by the Chairperson of the Board of Directors, or in such person’s absence by the President, or in such person’s absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in such person’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 2.8 : Written Action by Directors . 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 such 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, respectively. 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.
Section 2.9 : Powers . The Board of Directors may, except as otherwise required by law or the Certificate of Incorporation, exercise all such powers and do all such acts and things as may be exercised or done by the Corporation.
Section 2.10 : Compensation of Directors . Directors, as such, may receive, pursuant to a resolution of the Board of Directors, fees and other compensation for their services as directors, including without limitation their services as members of committees of the Board of Directors.
ARTICLE III
COMMITTEES
Section 3.1 : Committees . 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 the committee, the member or members thereof present at any meeting of such committee who are 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 place of any such absent or disqualified member. Any such committee, to the extent provided in a resolution of the Board of Directors, 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 in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to stockholders for approval or (ii) adopting, amending or repealing any bylaw of the Corporation.
 
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Section 3.2 : Committee Rules . Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV
OFFICERS
Section 4.1 : Generally . The officers of the Corporation shall consist of a Chief Executive Officer and/or a President, one or more Vice Presidents, a Secretary, a Treasurer and such other officers, including a Chairperson of the Board of Directors and/or Chief Financial Officer, as may from time to time be appointed by the Board of Directors. All officers shall be elected by the Board of Directors; provided , however , that the Board of Directors may empower the Chief Executive Officer of the Corporation to appoint officers other than the Chairperson of the Board, the Chief Executive Officer, the President, the Chief Financial Officer or the Treasurer. Each officer shall hold office until such person’s successor is elected and qualified or until such person’s earlier resignation or removal. Any number of offices may be held by the same person. Any officer may resign at any time upon written notice to the Corporation. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board of Directors.
Section 4.2 : Chief Executive Officer . Subject to the control of the Board of Directors and such supervisory powers, if any, as may be given by the Board of Directors, the powers and duties of the Chief Executive Officer of the Corporation are:
(a) To act as the general manager and, subject to the control of the Board of Directors, to have general supervision, direction and control of the business and affairs of the Corporation;
(b) To preside at all meetings of the stockholders;
(c) To call meetings of the stockholders to be held at such times and, subject to the limitations prescribed by law or by these Bylaws, at such places as he or she shall deem proper; and
(d) To affix the signature of the Corporation to all deeds, conveyances, mortgages, guarantees, leases, obligations, bonds, certificates and other papers and instruments in writing which have been authorized by the Board of Directors or which, in the judgment of the Chief Executive Officer, should be executed on behalf of the Corporation; to sign certificates for shares of stock of the Corporation; and, subject to the direction of the Board of Directors, to have general charge of the property of the Corporation and to supervise and control all officers, agents and employees of the Corporation.
 
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The President shall be the Chief Executive Officer of the Corporation unless the Board of Directors shall designate another officer to be the Chief Executive Officer. If there is no President, and the Board of Directors has not designated any other officer to be the Chief Executive Officer, then the Chairperson of the Board of Directors shall be the Chief Executive Officer.
Section 4.3 : Chairperson of the Board . The Chairperson of the Board of Directors shall have the power to preside at all meetings of the Board of Directors and shall have such other powers and duties as provided in these Bylaws and as the Board of Directors may from time to time prescribe.
Section 4.4 : President . The President shall be the Chief Executive Officer of the Corporation unless the Board of Directors shall have designated another officer as the Chief Executive Officer of the Corporation. Subject to the provisions of these Bylaws and to the direction of the Board of Directors, and subject to the supervisory powers of the Chief Executive Officer (if the Chief Executive Officer is an officer other than the President), and subject to such supervisory powers and authority as may be given by the Board of Directors to the Chairperson of the Board of Directors, and/or to any other officer, the President shall have the responsibility for the general management the control of the business and affairs of the Corporation and the general supervision and direction of all of the officers, employees and agents of the Corporation (other than the Chief Executive Officer, if the Chief Executive Officer is an officer other than the President) and shall perform all duties and have all powers that are commonly incident to the office of President or that are delegated to the President by the Board of Directors.
Section 4.5 : Vice President . Each Vice President shall have all such powers and duties as are commonly incident to the office of Vice President, or that are delegated to him or her by the Board of Directors or the Chief Executive Officer. A Vice President may be designated by the Board to perform the duties and exercise the powers of the Chief Executive Officer in the event of the Chief Executive Officer’s absence or disability.
Section 4.6 : Chief Financial Officer . The Chief Financial Officer shall be the Treasurer of the Corporation unless the Board of Directors shall have designated another officer as the Treasurer of the Corporation. Subject to the direction of the Board of Directors and the Chief Executive Officer, the Chief Financial Officer shall perform all duties and have all powers that are commonly incident to the office of Chief Financial Officer.
Section 4.7 : Treasurer . The Treasurer shall have custody of all monies and securities of the Corporation. The Treasurer shall make such disbursements of the funds of the Corporation as are authorized and shall render from time to time an account of all such transactions. The Treasurer shall also perform such other duties and have such other powers as are commonly incident to the office of Treasurer, or as the Board of Directors or the Chief Executive Officer may from time to time prescribe.
Section 4.8 : Secretary . The Secretary shall issue or cause to be issued all authorized notices for, and shall keep, or cause to be kept, minutes of all meetings of the stockholders and the Board of Directors. The Secretary shall have charge of the corporate minute books and similar records and shall perform such other duties and have such other powers as are commonly incident to the office of Secretary, or as the Board of Directors or the Chief Executive Officer may from time to time prescribe.
 
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Section 4.9 : Delegation of Authority . The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof.
Section 4.10 : Removal . Any officer of the Corporation shall serve at the pleasure of the Board of Directors and may be removed at any time, with or without cause, by the Board of Directors. Such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation.
ARTICLE V
STOCK
Section 5.1 : Certificates . Every holder of stock shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairperson 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, of the Corporation, certifying the number of shares owned by such stockholder in the Corporation. Any or all of the signatures on the certificate may be a facsimile.
Section 5.2 : Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates . The Corporation may issue a new certificate of stock in the place of any certificate previously 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 agree to indemnify the Corporation and/or 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.
Section 5.3 : Other Regulations . The issue, transfer, conversion and registration of stock certificates shall be governed by such other regulations as the Board of Directors may establish.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification of Officers and Directors . Each person who was or is made a party to, or is threatened to be made a party to, or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ Proceeding ”), by reason of the fact that such person (or a person of whom such person is the legal representative), is or was a director or officer of the Corporation or a Reincorporated Predecessor (as defined below) or is or was serving at the request of the Corporation or a Reincorporated Predecessor (as defined below) as a director or officer of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, shall be indemnified
 
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and held harmless by the Corporation to the fullest extent permitted by the Delaware General Corporation Law, against all expenses, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith, provided such person acted in good faith and in a manner which the 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 the person’s conduct was unlawful. Such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of such person’s heirs, executors and administrators. Notwithstanding the foregoing, the Corporation shall indemnify any such person seeking indemnity in connection with a Proceeding (or part thereof) initiated by such person only if such Proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. As used herein, the term “ Reincorporated Predecessor ” means a corporation that is merged with and into the Corporation in a statutory merger where (a) the Corporation is the surviving corporation of such merger; (b) the primary purpose of such merger is to change the corporate domicile of the Reincorporated Predecessor to Delaware.
Section 6.2 : Advance of Expenses . The Corporation shall pay all expenses (including attorneys’ fees) incurred by such a director or officer in defending any such Proceeding as they are incurred in advance of its final disposition; provided , however , that if the Delaware General Corporation Law then so requires, the payment of such expenses incurred by such a director or officer in advance of the final disposition of such Proceeding shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it should be determined ultimately that such director or officer is not entitled to be indemnified under this Article VI or otherwise; and provided , further , that the Corporation shall not be required to advance any expenses to a person against whom the Corporation directly brings a claim, in a Proceeding, alleging that such person has breached such person’s duty of loyalty to the Corporation, committed an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction.
Section 6.3 : Non-Exclusivity of Rights . The rights conferred on any person in this Article VI shall not be exclusive of any other right that such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaw, agreement, vote or consent of stockholders or disinterested directors, or otherwise. Additionally, nothing in this Article VI shall limit the ability of the Corporation, in its discretion, to indemnify or advance expenses to persons whom the Corporation is not obligated to indemnify or advance expenses pursuant to this Article VI.
Section 6.4 : Indemnification Contracts . The Board of Directors is authorized to cause the Corporation to enter into indemnification contracts with any director, officer, employee or agent of the Corporation, or any person 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 employee benefit plans, providing indemnification rights to such person. Such rights may be greater than those provided in this Article VI.
 
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Section 6.5 : Effect of Amendment . Any amendment, repeal or modification of any provision of this Article VI shall be prospective only, and shall not adversely affect any right or protection conferred on a person pursuant to this Article VI and existing at the time of such amendment, repeal or modification.
ARTICLE VII
NOTICES
Section 7.1 : Notice .
(a) Except as otherwise specifically provided in these Bylaws (including, without limitation, Section 7.1(b) below) or required by law, all notices required to be given pursuant to these Bylaws shall be in writing and may in every instance be effectively given by hand delivery (including use of a delivery service), by depositing such notice in the mail, postage prepaid, or by sending such notice by prepaid telegram, telex, overnight express courier, mailgram or facsimile. Any such notice shall be addressed to the person to whom notice is to be given at such person’s address as it appears on the records of the Corporation. The notice shall be deemed given (i) in the case of hand delivery, when received by the person to whom notice is to be given or by any person accepting such notice on behalf of such person, (ii) in the case of delivery by mail, upon deposit in the mail, (iii) in the case of delivery by overnight express courier, when dispatched, and (iv) in the case of delivery via telegram, telex, mailgram or facsimile, when dispatched.
(b) Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provision of the Delaware General Corporation Law, 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 of the Corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given pursuant to this Section 7.1(b) 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.
(c) 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 in writing or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
 
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Section 7.2 : Waiver of Notice . Whenever notice is required to be given under any provision of these Bylaws, a written waiver of notice, signed by the person entitled to notice, or waiver by electronic transmission by such person, whether before or after the time stated therein, 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, directors or members of a committee of directors need be specified in any waiver of notice.
ARTICLE VIII
INTERESTED DIRECTORS
Section 8.1 : Interested Directors; Quorum . No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof that authorizes the contract or transaction, or solely because his, her or their votes are counted for such purpose, if: (i) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (ii) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof, or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IX
MISCELLANEOUS
Section 9.1 : Fiscal Year . The fiscal year of the Corporation shall be determined by resolution of the Board of Directors.
Section 9.2 : Seal . The Board of Directors may provide for a corporate seal, which shall have the name of the Corporation inscribed thereon and shall otherwise be in such form as may be approved from time to time by the Board of Directors.
Section 9.3 : Form of Records . Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on or by means of, or be in the form of, diskettes, computer hard drives, servers, or
 
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any other information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to any provision of the Delaware General Corporation Law.
Section 9.4 : Reliance Upon Books and Records . A member of the Board of Directors, or a member of any committee designated by the Board of Directors shall, in the performance of such person’s duties, be fully protected in relying in good faith upon records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees of the Board of Directors, or by any other person as to matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
Section 9.5 : Certificate of Incorporation Governs . In the event of any conflict between the provisions of the Corporation’s Certificate of Incorporation and Bylaws, the provisions of the Certificate of Incorporation shall govern.
Section 9.6 : Severability . If any provision of these Bylaws shall be held to be invalid, illegal, unenforceable or in conflict with the provisions of the Corporation’s Certificate of Incorporation, then such provision shall nonetheless be enforced to the maximum extent possible consistent with such holding and the remaining provisions of these Bylaws (including without limitation, all portions of any section of these Bylaws containing any such provision held to be invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation, that are not themselves invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation) shall remain in full force and effect.
ARTICLE X
AMENDMENT
Section 10.1 : Amendments . Stockholders of the Corporation holding a majority of the Corporation’s outstanding voting stock then entitled to vote at an election of directors shall have the power to adopt, amend or repeal Bylaws. To the extent provided in the Corporation’s Certificate of Incorporation, the Board of Directors of the Corporation shall also have the power to adopt, amend or repeal Bylaws of the Corporation.
 
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CERTIFICATION OF BYLAWS
OF
WOODMAN LABS, INC.
(a Delaware corporation)
KNOW ALL BY THESE PRESENTS:
I, Kurt Amundson, certify that I am Secretary of Woodman Labs, Inc., a Delaware corporation (the “ Company ”), that I am duly authorized to make and deliver this certification, that the attached Bylaws are a true and correct copy of the Bylaws of the Company in effect as of the date of this certificate.
Dated: August 24, 2011

/s/ Kurt Amundson	
Kurt Amundson, Secretary	

Exhibit 3.04

 
GOPRO, INC.
(a Delaware corporation)
AMENDED AND RESTATED BYLAWS
As Adopted                                 , 2014

 

GOPRO, INC.
(a Delaware corporation)
AMENDED AND RESTATED BYLAWS
TABLE OF CONTENTS

 	  	Page	 	
Article I - STOCKHOLDERS	  	 	1	  	
		
Section 1.1:         Annual Meetings	  	 	1	  	
Section 1.2:         Special Meetings	  	 	1	  	
Section 1.3:         Notice of Meetings	  	 	1	  	
Section 1.4:         Adjournments	  	 	1	  	
Section 1.5:         Quorum	  	 	2	  	
Section 1.6:         Organization	  	 	2	  	
Section 1.7:         Voting; Proxies	  	 	2	  	
Section 1.8:         Fixing Date for Determination of Stockholders of Record	  	 	3	  	
Section 1.9:         List of Stockholders Entitled to Vote	  	 	3	  	
Section 1.10:       Inspectors of Elections	  	 	4	  	
Section 1.11:       Notice of Stockholder Business; Nominations	  	 	5	  	
		
Article II - BOARD OF DIRECTORS	  	 	7	  	
		
Section 2.1:         Number; Qualifications	  	 	7	  	
Section 2.2:         Election; Resignation; Removal; Vacancies	  	 	8	  	
Section 2.3:         Regular Meetings	  	 	8	  	
Section 2.4:         Special Meetings	  	 	8	  	
Section 2.5:         Remote Meetings Permitted	  	 	8	  	
Section 2.6:         Quorum; Vote Required for Action	  	 	8	  	
Section 2.7:         Organization	  	 	9	  	
Section 2.8:         Written Action by Directors	  	 	9	  	
Section 2.9:         Powers	  	 	9	  	
Section 2.10:       Compensation of Directors	  	 	9	  	
		
Article III - COMMITTEES	  	 	9	  	
		
Section 3.1:         Committees	  	 	9	  	
Section 3.2:         Committee Rules	  	 	9	  	
		
Article IV - OFFICERS	  	 	10	  	
		
Section 4.1:         Generally	  	 	10	  	
Section 4.2:         Chief Executive Officer	  	 	10	  	
Section 4.3:         Chairperson of the Board	  	 	11	  	
Section 4.4:         President	  	 	11	  	
Section 4.5:         Vice President	  	 	11	  	
Section 4.6:         Chief Financial Officer	  	 	11	  	
Section 4.7:         Treasurer	  	 	11	  	
Section 4.8:         Chief Technology Officer	  	 	11	  	
 
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Section 4.9:       Secretary	  	 	12	  	
Section 4.10:     Delegation of Authority	  	 	12	  	
Section 4.11:     Removal	  	 	12	  	
		
Article V - STOCK	  	 	12	  	
		
Section 5.l:        Certificates	  	 	12	  	
Section 5.2:       Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificate	  	 	12	  	
Section 5.3:       Other Regulations	  	 	13	  	
		
Article VI - INDEMNIFICATION	  	 	13	  	
		
Section 6.1:       Indemnification of Officers and Directors	  	 	13	  	
Section 6.2:       Advance of Expenses	  	 	13	  	
Section 6.3:       Non-Exclusivity of Rights	  	 	14	  	
Section 6.4:       Indemnification Contracts	  	 	14	  	
Section 6.5:       Right of Indemnitee to Bring Suit	  	 	14	  	
Section 6.6:       Nature of Rights	  	 	14	  	
		
Article VII - NOTICES	  	 	15	  	
		
Section 7.l:        Notice	  	 	15	  	
Section 7.2:       Waiver of Notice	  	 	16	  	
		
Article VIII - INTERESTED DIRECTORS	  	 	16	  	
		
Section 8.1:       Interested Directors	  	 	16	  	
Section 8.2:       Quorum	  	 	16	  	
		
Article IX – MISCELLANEOUS	  	 	16	  	
		
Section 9.1:       Fiscal Year	  	 	16	  	
Section 9.2:       Seal	  	 	16	  	
Section 9.3:       Form of Records	  	 	17	  	
Section 9.4:       Reliance Upon Books and Records	  	 	17	  	
Section 9.5:       Certificate of Incorporation Governs	  	 	17	  	
Section 9.6:       Severability	  	 	17	  	
		
Article X - AMENDMENT	  	 	17	  	
 
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GOPRO, INC.
(a Delaware corporation)
AMENDED AND RESTATED BYLAWS
As Adopted                             , 2014
ARTICLE I: STOCKHOLDERS
Section 1.1 : Annual Meetings . An annual meeting of stockholders shall be held for the election of directors at such date and time as the Board of Directors of the Corporation (the “ Board ”) shall each year fix. The meeting may be held either at a place, within or without the State of Delaware as permitted by the Delaware General Corporation Law (the “ DGCL ”), or by means of remote communication as the Board in its sole discretion may determine. Any proper business may be transacted at the annual meeting. The Board may postpone, reschedule or cancel any previously scheduled annual meeting of stockholders.
Section 1.2 : Special Meetings . Special meetings of stockholders for any purpose or purposes shall be called in the manner set forth in the Restated Certificate of Incorporation of the Corporation (as the same may be amended and/or restated from time to time, the “ Certificate of Incorporation ”). The special meeting may be held either at a place, within or without the State of Delaware, or by means of remote communication as the Board in its sole discretion may determine. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of the meeting. The Board may postpone, reschedule or cancel any previously scheduled special meeting of stockholders.
Section 1.3 : Notice of Meetings . Notice of all meetings of stockholders shall be given in writing or by electronic transmission in the manner provided by law (including, without limitation, as set forth in Section 7.1.1 of these Bylaws) stating the date, time and place, if any, of the meeting, the means of remote communications by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting and the record date for determining the stockholders entitled to vote at the meeting. In the case of a special meeting, such notice shall also set forth the purpose or purposes for which the meeting is called. Unless otherwise required by applicable law or the Certificate of Incorporation, notice of any meeting of stockholders shall be given not less than ten (10), nor more than sixty (60), days before the date of the meeting to each stockholder of record entitled to vote at such meeting.
Section 1.4 : Adjournments . The chairperson of the meeting shall have the power to adjourn the meeting to another time, date and place (if any). Any meeting of stockholders, annual or special, may be adjourned from time to time, and notice need not be given of any such adjourned meeting if the time, date and 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; provided , however , that if the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting the Corporation may transact any business that might have been transacted at the original meeting.
 
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Section 1.5 : Quorum . Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at each meeting of stockholders the holders of a majority of the voting power of the shares of stock issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business; provided , however , that where a separate vote by a class or classes or series of stock is required by law or the Certificate of Incorporation, the holders of a majority in voting power of the shares of such class or classes or series of the stock issued and outstanding and entitled to vote on such matter, present in person or represented by proxy at the meeting, shall constitute a quorum entitled to take action with respect to the vote on such matter. If a quorum shall fail to attend any meeting, the chairperson of the meeting or, if directed to be voted on by the chairperson of the meeting, the holders of a majority of the shares entitled to vote who are present in person or represented by proxy at the meeting may adjourn the meeting. Shares of the Corporation’s stock belonging to the Corporation (or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation are held, directly or indirectly, by the Corporation), shall neither be entitled to vote nor be counted for quorum purposes; provided , however , that the foregoing shall not limit the right of the Corporation or any other corporation to vote any shares of the Corporation’s stock held by it in a fiduciary capacity and to count such shares for purposes of determining a quorum. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum.
Section 1.6 : Organization . Meetings of stockholders shall be presided over by such person as the Board may designate, or, in the absence of such a person, the Chairperson of the Board, or, in the absence of such person, the President of the Corporation, or, in the absence of such person, by a Vice President. Such person shall be chairperson of the meeting and, subject to Section 1.10 hereof, shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seems to him or her to be in order. The Secretary of the Corporation shall act as secretary of the meeting, but in such person’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 1.7 : Voting; Proxies . Each stockholder of record entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy. Such a proxy may be prepared, transmitted and delivered in any manner permitted by applicable law. Except as may be required in the Certificate of Incorporation, directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Unless otherwise provided by applicable law, regulation applicable to the Corporation or its securities, the rules or regulations of any stock exchange applicable to the Corporation, the Certificate of Incorporation or these Bylaws, every matter other than the election of directors shall be decided by the affirmative vote of the holders of a majority of the voting power of the shares of stock entitled to vote on such matter that are present in person or represented by proxy at the meeting and are voted for or against the matter (or if there are two or more classes or series of stock entitled to vote as separate classes, then in the case of each class or series, the holders of a majority of the voting power of the shares of stock of that class or series present in person or represented by proxy at the meeting voting for or against such matter).
 
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Section 1.8 : Fixing Date for Determination of Stockholders of Record . In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board 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, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than (10) days before the date of such meeting. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or 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 may fix a new record date for determination of stockholders entitled to vote 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 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 may fix, in advance, a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board and which shall not be more than sixty (60) days prior to such action. If no such record date is fixed by the Board, then the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
Section 1.9 : List of Stockholders Entitled to Vote . The Secretary shall prepare, at least ten (10) days before every meeting of stockholders, a complete list of 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 date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. 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, (a) on a reasonably accessible electronic network as permitted by law ( provided that the information required to gain access to the list is provided with the notice of the meeting), or (b) during ordinary business hours, at the principal place of business of the Corporation. If the meeting is held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present at the meeting. If the meeting is held solely by means of remote communication, then the list shall 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 the list shall be provided with the notice of the meeting. Except as otherwise provided by law, the 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.
 
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Section 1.10: Inspectors of Elections.
1.10.1 Applicability . Unless otherwise required by the Certificate of Incorporation or by the DGCL, the following provisions of this Section 1.10 shall apply only if and when the Corporation has a class of voting stock that is: (a) listed on a national securities exchange; (b) authorized for quotation on an interdealer quotation system of a registered national securities association; or (c) held of record by more than two thousand (2,000) stockholders. In all other cases, observance of the provisions of this Section 1.10 shall be optional, and at the discretion of the Board.
1.10.2 Appointment . The Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting.
1.10.3 Inspector’s Oath . Each inspector of election, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability.
1.10.4 Duties of Inspectors . At a meeting of stockholders, the inspectors of election shall (a) ascertain the number of shares outstanding and the voting power of each share, (b) determine the shares represented at a meeting and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and retain for a reasonable period of time a record of the disposition of any challenges made to any determination by the inspectors, and (e) certify their determination of the number of shares represented at the meeting, and their count of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors.
1.10.5 Opening and Closing of Polls . The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced by the chairperson of the meeting at the meeting. No ballot, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery upon application by a stockholder shall determine otherwise.
1.10.6 Determinations . In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted with those proxies, any information provided in connection with proxies in accordance with any information provided pursuant to Section 211(a)(2)b.(i) of the DGCL, or Sections 211(e) or 212(c)(2) of the DGCL, ballots and the regular books and records of the Corporation, except that the inspectors may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for the limited purpose permitted herein, the inspectors at the time they make their certification of their determinations pursuant to this Section 1.10 shall specify the precise information considered by them, including the person or persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information is accurate and reliable.
 
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Section 1.11: Notice of Stockholder Business; Nominations .
1.11.1 Annual Meeting of Stockholders .
(a) Nominations of persons for election to the Board and the proposal of business to be considered by the stockholders shall be made at an annual meeting of stockholders (i) pursuant to the Corporation’s notice of such meeting, (ii) by or at the direction of the Board or (iii) by any stockholder of the Corporation who was a stockholder of record at the time of giving of the notice provided for in this Section 1.11, who is entitled to vote at such meeting and who complies with the notice procedures set forth in this Section 1.11.
(b) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to Section 1.11.1(a):
(i) the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation;
(ii) such other business must otherwise be a proper matter for stockholder action;
(iii) if the stockholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Corporation with a Solicitation Notice, as that term is defined in this Section 1.11, such stockholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s voting shares required under applicable law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Corporation’s voting shares reasonably believed by such stockholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such stockholder, and must, in either case, have included in such materials the Solicitation Notice; and
(iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 1.11, the stockholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice under this Section 1.11.
To be timely, a stockholder’s notice must be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the seventy-fifth (75th) day nor earlier than the close of business on the one hundred and fifth (105th) day prior to the first anniversary of the preceding year’s annual meeting (except in the case of the 2015 annual meeting, for which such notice shall be timely if delivered in the same time period as if such meeting were a special meeting governed by Section 1.11.2); provided , however , that in the event that the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered (A) no earlier than the close of business on the one hundred and fifth (105th) day prior to currently
 
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proposed annual meeting and (B) no later than the close of business on the later of the seventy-fifth (75th) day prior to such annual meeting or the close of business on the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation. Such stockholder’s notice shall set forth:
(x) as to each person whom the stockholder proposes to nominate for election or reelection as a director all information relating to such person that would be required to be disclosed in solicitations of proxies for election of directors, or would be otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected;
(y) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting (including, if such proposal seeks to amend the Bylaws, the text of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and
(z) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, (aa) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, (bb) the class and number of shares of the Corporation that are owned beneficially and held of record by such stockholder and such beneficial owner, and (cc) whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Corporation’s voting shares required under applicable law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Corporation’s voting shares to elect such nominee or nominees (an affirmative statement of such intent being a “ Solicitation Notice ”).
(c) Notwithstanding anything in the second sentence of Section 1.11.1(b) to the contrary, in the event that the number of directors to be elected to the Board is increased and there is no Public Announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board at least seventy five (75) days prior to the first anniversary of the preceding year’s annual meeting (or, if the annual meeting is held more than thirty (30) days before or sixty (60) days after such anniversary date, at least seventy five (75) days prior to such annual meeting), a stockholder’s notice required by this Section 1.11 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary of the Corporation at the principal executive office of the Corporation no later than the close of business on the tenth (10th) day following the day on which such Public Announcement is first made by the Corporation.
1.11.2 Special Meetings of Stockholders . Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of such meeting. Nominations of persons for election to the Board may be
 
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made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of such meeting (a) by or at the direction of the Board or (b) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice of the special meeting, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 1.11. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by Section 1.11.1(b) shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation (i) no earlier than the one hundred fifth (105th) day prior to such special meeting and (ii) no later than the close of business on the later of the seventy fifth (75th) day prior to such special meeting or the tenth (10th) 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 to be elected at such meeting.
1.11.3 General .
(a) Only such persons who are nominated in accordance with the procedures set forth in this Section 1.11 shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 1.11. Except as otherwise provided by law or these Bylaws, the chairperson of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 1.11 and, if any proposed nomination or business is not in compliance herewith, to declare that such defective proposal or nomination shall be disregarded.
(b) For purposes of this Section 1.11, the term “ Public Announcement ” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or 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 Exchange Act.
(c) Notwithstanding the foregoing provisions of this Section 1.11, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 1.11 shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.
ARTICLE II: BOARD OF DIRECTORS
Section 2.1 : Number; Qualifications . The total number of directors constituting the Board (the “ Whole Board ”) shall be fixed from time to time in the manner set forth in the Certificate of Incorporation. No decrease in the authorized number of directors constituting the Board shall shorten the term of any incumbent director. Directors need not be stockholders of the Corporation.
 
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Section 2.2 : Election; Resignation; Removal; Vacancies . Election of directors need not be by written ballot. Unless otherwise provided by the Certificate of Incorporation and subject to the special rights of holders of any series of Preferred Stock to elect directors, immediately following the Automatic Conversion Date (as defined in the Certificate of Incorporation), the Board shall be divided into three classes, designated: Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the Whole Board. Each director shall hold office until the annual meeting at which such director’s term expires and until such director’s successor is elected and qualified or until such director’s earlier death, resignation, disqualification or removal. Any director may resign by delivering a resignation in writing or by electronic transmission to the Corporation at its principal office or to the Chairman of the Board, the Chief Executive Officer, the President or the Secretary. Such resignation shall be effective upon delivery unless it is specified to be effective at a later time or upon the happening of an event. Subject to the special rights of holders of any series of Preferred Stock to elect directors, directors may be removed only as provided by the Certificate of Incorporation and applicable law. All vacancies occurring in the Board and any newly created directorships resulting from any increase in the authorized number of directors shall be filled in the manner set forth in the Certificate of Incorporation.
Section 2.3 : Regular Meetings . Regular meetings of the Board may be held at such places, within or without the State of Delaware, and at such times as the Board may from time to time determine. Notice of regular meetings need not be given if the date, times and places thereof are fixed by resolution of the Board.
Section 2.4 : Special Meetings . Special meetings of the Board may be called by the Chairperson of the Board, the President or a majority of the members of the Board then in office and may be held at any time, date or place, within or without the State of Delaware, as the person or persons calling the meeting shall fix. Notice of the time, date and place of such meeting shall be given, orally, in writing or by electronic transmission (including electronic mail), by the person or persons calling the meeting to all directors at least four (4) days before the meeting if the notice is mailed, or at least twenty-four (24) hours before the meeting if such notice is given by telephone, hand delivery, telegram, telex, mailgram, facsimile, electronic mail or other means of electronic transmission. Unless otherwise indicated in the notice, any and all business may be transacted at a special meeting.
Section 2.5 : Remote Meetings Permitted . Members of the Board, or any committee of the Board, may participate in a meeting of the Board or such 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 participation in a meeting pursuant to conference telephone or other communications equipment shall constitute presence in person at such meeting.
Section 2.6 : Quorum; Vote Required for Action . At all meetings of the Board, a majority of the Whole Board shall constitute a quorum for the transaction of business. If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to
 
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another place, date or time without further notice thereof. Except as otherwise provided herein or in the Certificate of Incorporation, or required by law, the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board.
Section 2.7 : Organization . Meetings of the Board shall be presided over by the Chairperson of the Board, or in such person’s absence by the President, or in such person’s absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in such person’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 2.8 : Unanimous Action by Directors in Lieu of a Meeting . Any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or such 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 or committee, as applicable. 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.
Section 2.9 : Powers . Except as otherwise provided by the Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of the Board.
Section 2.10 : Compensation of Directors . Members of the Board, as such, may receive, pursuant to a resolution of the Board, fees and other compensation for their services as directors, including without limitation their services as members of committees of the Board.
ARTICLE III: COMMITTEES
Section 3.1 : Committees . The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board 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 the committee, the member or members thereof present at any meeting of such committee who are not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent provided in a resolution of the Board, shall have and may exercise all the powers and authority of the Board 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 in reference to the following matters: (a) approving, adopting, or recommending to the stockholders any action or matter (other than the election or removal of members of the Board) expressly required by the DGCL to be submitted to stockholders for approval or (b) adopting, amending or repealing any bylaw of the Corporation.
Section 3.2 : Committee Rules . Each committee shall keep records of its proceedings and make such reports as the Board may from time to time request. Unless the Board otherwise provides, each committee designated by the Board may make, alter and repeal rules for the
 
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conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article II of these Bylaws. Except as otherwise provided in the Certificate of Incorporation, these Bylaws or the resolution of the Board designating the committee, any committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and may delegate to any such subcommittee any or all of the powers and authority of the committee.
ARTICLE IV: OFFICERS
Section 4.1 : Generally . The officers of the Corporation shall consist of a Chief Executive Officer (who may be the Chairperson of the Board or the President), a President, a Secretary and a Treasurer and may consist of such other officers, including a Chairperson of the Board, Chief Financial Officer, Chief Technology Officer and one or more Vice Presidents, as may from time to time be appointed by the Board. All officers shall be elected by the Board; provided , however , that the Board may empower the Chief Executive Officer of the Corporation to appoint any officer other than the Chairperson of the Board, the Chief Executive Officer, the President, the Chief Financial Officer or the Treasurer. Except as otherwise provided by law, by the Certificate of Incorporation or these Bylaws, each officer shall hold office until such officer’s successor is duly elected and qualified or until such officer’s earlier resignation, death, disqualification or removal. Any number of offices may be held by the same person. Any officer may resign by delivering a resignation in writing or by electronic transmission to the Corporation at its principal office or to the Chairman of the Board, the Chief Executive Officer, the President or the Secretary. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board and the Board may, in its discretion, leave unfiled, for such period as it may determine, any offices. Each such successor shall hold office for the unexpired term of such officer’s predecessor and until a successor is duly elected and qualified or until such officer’s earlier resignation, death, disqualification or removal.
Section 4.2 : Chief Executive Officer . Subject to the control of the Board and such supervisory powers, if any, as may be given by the Board, the powers and duties of the Chief Executive Officer of the Corporation are:
(a) To act as the general manager and, subject to the control of the Board, to have general supervision, direction and control of the business and affairs of the Corporation;
(b) Subject to Article I, Section 1.6, to preside at all meetings of the stockholders;
(c) Subject to Article I, Section 1.2, to call special meetings of the stockholders to be held at such times and, subject to the limitations prescribed by law or by these Bylaws, at such places as he or she shall deem proper; and
(d) To affix the signature of the Corporation to all deeds, conveyances, mortgages, guarantees, leases, obligations, bonds, certificates and other papers and
 
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instruments in writing which have been authorized by the Board or which, in the judgment of the Chief Executive Officer, should be executed on behalf of the Corporation; to sign certificates for shares of stock of the Corporation; and, subject to the direction of the Board, to have general charge of the property of the Corporation and to supervise and control all officers, agents and employees of the Corporation.
The President shall be the Chief Executive Officer of the Corporation unless the Board shall designate another officer to be the Chief Executive Officer.
Section 4.3 : Chairperson of the Board . The Chairperson of the Board shall have the power to preside at all meetings of the Board and shall have such other powers and duties as provided in these Bylaws and as the Board may from time to time prescribe.
Section 4.4 : President . The Chief Executive Officer shall be the President of the Corporation unless the Board shall have designated one individual as the President and a different individual as the Chief Executive Officer of the Corporation. Subject to the provisions of these Bylaws and to the direction of the Board, and subject to the supervisory powers of the Chief Executive Officer (if the Chief Executive Officer is an officer other than the President), and subject to such supervisory powers and authority as may be given by the Board to the Chairperson of the Board, and/or to any other officer, the President shall have the responsibility for the general management and control of the business and affairs of the Corporation and the general supervision and direction of all of the officers, employees and agents of the Corporation (other than the Chief Executive Officer, if the Chief Executive Officer is an officer other than the President) and shall perform all duties and have all powers that are commonly incident to the office of President or that are delegated to the President by the Board.
Section 4.5 : Vice President . Each Vice President shall have all such powers and duties as are commonly incident to the office of Vice President, or that are delegated to him or her by the Board or the Chief Executive Officer. A Vice President may be designated by the Board to perform the duties and exercise the powers of the Chief Executive Officer in the event of the Chief Executive Officer’s absence or disability.
Section 4.6 : Chief Financial Officer . The Chief Financial Officer shall be the Treasurer of the Corporation unless the Board shall have designated another officer as the Treasurer of the Corporation. Subject to the direction of the Board and the Chief Executive Officer, the Chief Financial Officer shall perform all duties and have all powers that are commonly incident to the office of Chief Financial Officer.
Section 4.7 : Treasurer . The Treasurer shall have custody of all moneys and securities of the Corporation. The Treasurer shall make such disbursements of the funds of the Corporation as are authorized and shall render from time to time an account of all such transactions. The Treasurer shall also perform such other duties and have such other powers as are commonly incident to the office of Treasurer, or as the Board or the Chief Executive Officer may from time to time prescribe.
Section 4.8 : Chief Technology Officer . The Chief Technology Officer shall have responsibility for the general research and development activities of the Corporation, for
 
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supervision of the Corporation’s research and development personnel, for new product development and product improvements, for overseeing the development and direction of the Corporation’s intellectual property development and such other responsibilities as may be given to the Chief Technology Officer by the Board, subject to: (a) the provisions of these Bylaws; (b) the direction of the Board; (c) the supervisory powers of the Chief Executive Officer of the Corporation; and (d) those supervisory powers that may be given by the Board to the Chairperson or Vice Chairperson of the Board.
Section 4.9 : Secretary . The Secretary shall issue or cause to be issued all authorized notices for, and shall keep, or cause to be kept, minutes of all meetings of the stockholders and the Board. The Secretary shall have charge of the corporate minute books and similar records and shall perform such other duties and have such other powers as are commonly incident to the office of Secretary, or as the Board or the Chief Executive Officer may from time to time prescribe.
Section 4.10 : Delegation of Authority . The Board may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof.
Section 4.11 : Removal . Any officer of the Corporation shall serve at the pleasure of the Board and may be removed at any time, with or without cause, by the Board; provided that if the Board has empowered the Chief Executive Officer to appoint any officer of the Corporation, then such officer may also be removed by the Chief Executive Officer. Such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation.
ARTICLE V: STOCK
Section 5.1 : Certificates; Uncertificated Shares . The shares of capital stock of the Corporation shall be represented by certificates; provided , however , that the Board 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 (or the transfer agent or registrar, as the case may be). 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 or Vice-Chairperson of the Board, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation, 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 shall have 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 an officer, transfer agent or registrar at the date of issue.
Section 5.2 : Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates . The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate previously issued by it, alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or
 
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destroyed certificate, or such owner’s legal representative, to agree to indemnify the Corporation and/or 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.
Section 5.3 : Other Regulations . Subject to applicable law, the Certificate of Incorporation and these Bylaws, the issue, transfer, conversion and registration of shares represented by certificates and of uncertificated shares shall be governed by such other regulations as the Board may establish.
ARTICLE VI: INDEMNIFICATION
Section 6.1 : Indemnification of Officers and Directors . Each person who was or is made a party to, or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ Proceeding ”), by reason of the fact that such person (or a person of whom such person is the legal representative), is or was a director or officer of the Corporation or a Reincorporated Predecessor (as defined below) or, while a director or officer of the Corporation, is or was serving at the request of the Corporation or a Reincorporated Predecessor as a director, officer, employee, agent or trustee of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans (for purposes of this Article VI, an “ Indemnitee ”), shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the DGCL as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expenses, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith. Such indemnification shall continue as to an Indemnitee who has ceased to be a director or officer and shall inure to the benefit of such Indemnitees’ heirs, executors and administrators. Notwithstanding the foregoing, subject to Section 6.5 of this Article VI, the Corporation shall indemnify any such Indemnitee seeking indemnity in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Board or such indemnification is authorized by an agreement approved by the Board. As used herein, the term the “ Reincorporated Predecessor ” means a corporation that was merged with and into the Corporation in a statutory merger in which the Corporation was the surviving corporation of such merger and the primary purpose of such merger was to change the corporate domicile of the Reincorporated Predecessor to Delaware.
Section 6.2 : Advance of Expenses . The Corporation shall pay all expenses (including attorneys’ fees) incurred by an Indemnitee in defending any Proceeding in advance of its final disposition; provided , however , that if the DGCL then so requires, the advancement of such expenses shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such Indemnitee, to repay such amounts if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this Article VI or otherwise.
 
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Section 6.3: Non-Exclusivity of Rights . The rights conferred on any person in this Article VI shall not be exclusive of any other right that such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaw, agreement, vote or consent of stockholders or disinterested directors, or otherwise. Additionally, nothing in this Article VI shall limit the ability of the Corporation, in its discretion, to indemnify or advance expenses to persons whom the Corporation is not obligated to indemnify or advance expenses pursuant to this Article VI.
Section 6.4 : Indemnification Contracts . The Board is authorized to cause the Corporation to enter into indemnification contracts with any director, officer, employee or agent of the Corporation, or any person serving at the request of the Corporation as a director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust or other enterprise, including employee benefit plans, providing indemnification or advancement rights to such person. Such rights may be greater than those provided in this Article VI.
Section 6.5 : Right of Indemnitee to Bring Suit . The following shall apply to the extent not in conflict with any indemnification contract provided for in Section 6.4 above.
6.5.1 Right to Bring Suit . If a claim under Section 6.1 or 6.2 of this Article VI is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall be entitled to be paid, to the fullest extent permitted by law, the expense of prosecuting or defending such suit. In any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that the Indemnitee has not met any applicable standard of conduct which makes it permissible under the DGCL (or other applicable law) for the Corporation to indemnify the Indemnitee for the amount claimed.
6.5.2 Effect of Determination . Neither the absence of a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in applicable law, nor an actual determination that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, be a defense to such suit.
6.5.3 Burden of Proof . In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VI, or otherwise, shall be on the Corporation.
Section 6.6 : Nature of Rights . The rights conferred upon Indemnitees in this Article VI shall be contract rights and such rights shall continue as to an Indemnitee who has
 
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ceased to be a director, officer or trustee and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators. Any amendment, repeal or modification of any provision of this Article VI that adversely affects any right of an Indemnitee or an Indemnitee’s successors shall be prospective only, and shall not adversely affect any right or protection conferred on a person pursuant to this Article VI and existing at the time of such amendment, repeal or modification.
ARTICLE VII: NOTICES
Section 7.1 : Notice .
7.1.1 Form and Delivery . Except as otherwise specifically required in these Bylaws (including, without limitation, Section 7.1.2 below) or by law, all notices required to be given pursuant to these Bylaws shall be in writing and may, (a) in every instance in connection with any delivery to a member of the Board, be effectively given by hand delivery (including use of a delivery service), by depositing such notice in the mail, postage prepaid, or by sending such notice by overnight express courier, facsimile, electronic mail or other form of electronic transmission and (b) be effectively be delivered to a stockholder when given by hand delivery, by depositing such notice in the mail, postage prepaid or, if specifically consented to by the stockholder as described in Section 7.1.2 of this Article VII by sending such notice by facsimile, electronic mail or other form of electronic transmission. Any such notice shall be addressed to the person to whom notice is to be given at such person’s address as it appears on the records of the Corporation. The notice shall be deemed given (a) in the case of hand delivery, when received by the person to whom notice is to be given or by any person accepting such notice on behalf of such person, (b) in the case of delivery by mail, upon deposit in the mail, (c) in the case of delivery by overnight express courier, when dispatched, and (d) in the case of delivery via facsimile, electronic mail or other form of electronic transmission, at the time provided in Section 7.1.2.
7.1.2 Electronic Transmission . Without limiting the manner by which notice otherwise may be given effectively to stockholders, 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 in accordance with Section 232 of the DGCL. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked if (a) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (b) such inability becomes known to the Secretary or an Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice; provided , however , the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given pursuant to this Section 7.1.2 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 such posting and the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder.
 
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7.1.3 Affidavit of Giving Notice . 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 in writing or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
Section 7.2 : Waiver of Notice . Whenever notice is required to be given under any provision of the DGCL, the Certificate of Incorporation or these Bylaws, a written waiver of notice, signed by the person entitled to notice, or waiver by electronic transmission by such person, whether before or after the time stated therein, 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, directors or members of a committee of directors need be specified in any waiver of notice.
ARTICLE VIII: INTERESTED DIRECTORS
Section 8.1 : Interested Directors . No contract or transaction between the Corporation and one or more of its members of the Board or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are members of the board of directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof that authorizes the contract or transaction, or solely because his, her or their votes are counted for such purpose, if: (a) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (b) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board, a committee thereof, or the stockholders.
Section 8.2 : Quorum . Interested directors may be counted in determining the presence of a quorum at a meeting of the Board or of a committee which authorizes the contract or transaction.
ARTICLE IX: MISCELLANEOUS
Section 9.1 : Fiscal Year . The fiscal year of the Corporation shall be determined by resolution of the Board.
Section 9.2 : Seal . The Board may provide for a corporate seal, which may have the name of the Corporation inscribed thereon and shall otherwise be in such form as may be approved from time to time by the Board.
 
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Section 9.3 : Form of Records . Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on or by means of, or be in the form of, diskettes, CDs, or any other information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to any provision of the DGCL.
Section 9.4 : Reliance upon Books and Records . A member of the Board, or a member of any committee designated by the Board shall, in the performance of such person’s duties, be fully protected in relying in good faith upon records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees of the Board, or by any other person as to matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
Section 9.5 : Certificate of Incorporation Governs . In the event of any conflict between the provisions of the Certificate of Incorporation and Bylaws, the provisions of the Certificate of Incorporation shall govern.
Section 9.6 : Severability . If any provision of these Bylaws shall be held to be invalid, illegal, unenforceable or in conflict with the provisions of the Certificate of Incorporation, then such provision shall nonetheless be enforced to the maximum extent possible consistent with such holding and the remaining provisions of these Bylaws (including without limitation, all portions of any section of these Bylaws containing any such provision held to be invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation, that are not themselves invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation) shall remain in full force and effect.
ARTICLE X: AMENDMENT
Notwithstanding any other provision of these Bylaws, any alteration, amendment or repeal of these Bylaws, and any adoption of new Bylaws, shall require the approval of the Board or the stockholders of the Corporation as expressly provided in the Certificate of Incorporation.

 
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CERTIFICATION OF AMENDED AND RESTATED BYLAWS
OF
GOPRO, INC.
(a Delaware corporation)
I,                                      , certify that I am Secretary of GoPro, Inc., a Delaware corporation (the “ Corporation ”), that I am duly authorized to make and deliver this certification, that the attached Bylaws are a true and complete copy of the Amended and Restated Bylaws of the Corporation in effect as of the date of this certificate.
Dated:                      , 2014

 	
	
                                                          , Secretary	

Exhibit 4.01

DELAWARE _ SEAL GOPRO, INC. CORPORATE August 24, 2011 Fully paid and nonassessable shares of Class A common stock, $0.0001 par value, OF GoPro, Inc. transferable on the books of the Corporation in person or by duly authorized attorney upon surrender of this Certificate properly endorsed. This Certificate is not valid until countersigned by the Transfer Agent and registered by the Registrar. Witness the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers. Dated: This certifies that is the record holder of Incorporated under the laws of the state of delaware CUSIP 38268T 10 3 SEE REVERSE FOR CERTAIN DEFINITIONS Countersigned and Registered: American Stock transfer & trust company, LLC (New York, NY) Transfer Agent and Registrar By: Authorized signature General Counsel & Corporate Secretary President & Chief Executive Officer GP NUMBER Be a Hero GOPRO shares

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: Additional abbreviations may also be used though not in the above list. TEN COM – as tenants in common TEN ENT – as tenants by the entireties JT TEN – as joint tenants with right of survivorship and not as tenants in common COM PROP – as community property UNIF GIFT MIN ACT – Custodian (Cust) (Minor) under Uniform Gifts to Minors Act.............................................................................. (State) UNIF TRF MIN ACT – ................. Custodian (until age ..................) (Cust) ..................................... under Uniform Transfers (Minor) to Minors Act............................................................ (State) FOR VALUE RECEIVED, hereby sell(s), assign(s) and transfer(s) unto Please insert social security or other identifying number of assignee shares of the capital stock represented by within Certificate, and do hereby irrevocably constitute and appoint attorney-in-fact to transfer the said stock on the books of the within named Corporation with full power of the substitution in the premises. Dated 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 what so ever . By 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 medalion program ), pursuant to s.e.c. rule 17ad-15. GUARANTEES BY A NOTARY PUBLIC ARE NOT ACCEPTABLE. SIGNATURE GUARANTEES MUST NOT BE DATED. Signature(s) Guaranteed: (Please print or typewrite name and address, including zip code, of assignee) X X

Exhibit 4.02
WOODMAN LABS, INC.
INVESTORS’ RIGHTS AGREEMENT
This Investors’ Rights Agreement (this “ Agreement ”) is made as of February 25, 2011, by and among Woodman Labs, Inc. (d/b/a GoPro), a California corporation (the “ Company ”), and each of the investors listed on Schedule A hereto, each of which is referred to in this Agreement as an “ Investor ”).
WHEREAS, the Company, certain Selling Shareholders (as defined in the Purchase Agreement (defined below)) and the Investors are parties to the Series A Preferred Stock Purchase Agreement February 19, 2011 (the “ Purchase Agreement ”); and
WHEREAS, in order to induce the Company to enter into the Purchase Agreement and to induce the Investors to invest funds in the Company and purchase Series A Preferred Stock of the Company from the Selling Shareholders pursuant to the Purchase Agreement, the Investors and the Company hereby agree that this Agreement shall govern the rights of the Investors to cause the Company to register shares of Common Stock issuable to the Investors, to receive certain information from the Company, and to participate in future equity offerings by the Company, and shall govern certain other matters as set forth in this Agreement;
NOW, THEREFORE, the parties hereby agree as follows.
1. DEFINITIONS . For purposes of this Agreement:
“ Affiliate ” means, with respect to any specified Person, or any other Person who or which, directly or indirectly, controls, is controlled by, or is under common control with such Person including without limitation any general partner, managing partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person, and, for the avoidance of doubt, any Person which, directly or indirectly, controls, is controlled by, or is under common control with another Person and any partnership in which such Person is a partner. For purposes of this definition, the terms “ controlling ,” “ controlled by ,” or “ under common control with ” shall mean the possession, directly or indirectly, of (a) the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise, or (b) the power to elect or appoint at least fifty percent (50%) of the directors, managers, general partners, or persons exercising similar authority with respect to such Person.
“ Automatic Shelf Registration Statement ” shall have the meaning given to that term in SEC Rule 405.
“ Board ” shall mean the Board of Directors of the Company.
“ business day ” means a weekday on which banks are open for general banking business in San Francisco, California.
“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Common Stoc k ” means shares of the Company’s common stock.
“ Competitor ” means (a) any Person or Affiliate thereof that is in the business of designing, manufacturing or distributing wearable or mountable cameras, (b) any significant customer, distributor or supplier of the Company, if the Board should reasonably determine in good faith that such transfer of Restricted Securities of the Company to such significant customer, distributor or supplier would result in such significant customer, distributor or supplier receiving information that would place the Company at a material competitive disadvantage with respect to such significant customer, distributor or supplier or (c) any Affiliate of any such entity described in clause (b) of this sentence if such transfer of Restricted Securities of the Company to such Affiliate would result in any such entity described in clause (b) of this sentence receiving information that would place the Company at a material competitive disadvantage with respect to such entity. For the avoidance of doubt, no Investor, nor any Affiliate of any Investor (which Affiliate may not be any Person that is in the business of designing, manufacturing or distributing wearable or mountable cameras or is any significant customer, distributor or supplier of the Company), shall be deemed to be a Competitor for the purposes of this Agreement.
“ Damages ” means any loss, damage, or liability (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act, or other federal or state law, insofar as such loss, damage, or liability (or any action in respect thereof) arises out of or is based upon (a) any untrue statement or alleged untrue statement of a material fact contained in any registration statement of the Company, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, and any free-writing prospectus and any issuer information (as defined in Rule 433 of the Securities Act) filed or required to be filed pursuant to Rule 433(d) under the Securities Act or any other document incident to such registration prepared by or on behalf of the Company or used or referred to by the Company; (b) an 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 (c) any violation or alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law.
“ Demand Notice ” means notice sent by the Company to the Holders specifying that a demand registration has been requested as provided in Section 3.1.1.
“ Derivative Securities ” means any securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants.
“ Deemed Liquidation Event ” has the meaning set forth for such term in the articles of incorporation of the Company most recently filed with the California Secretary of State that contains such a definition, whether or not the holders of outstanding shares of Preferred Stock elect otherwise by written notice sent to the Company as provided in such definition.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
 
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“ Excluded Registration ” means (a) a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to an equity incentive, stock option, stock purchase, or similar plan; (b) a registration relating to an SEC Rule 145 transaction; (c) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (d) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.
“ Form S-1 ” means such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC.
“ Form S-3 ” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.
“ Free Writing Prospectus ” means a free-writing prospectus, as defined in Rule 405 under the Securities Act.
“ Fully Exercising Investor ” shall have the meaning set forth in Section 4.
“ GAAP ” means generally accepted accounting principles in the United States.
“ Holder ” means any holder of Registrable Securities who is a party to this Agreement.
“ Immediate Family Member ” means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, of a natural person referred to herein.
“ Initiating Holders ” means, collectively, Holders who properly initiate a registration request under this Agreement.
“ Investor Notice ” shall have the meaning set forth in Section 4.
“ IPO ” means the Company’s first underwritten public offering of its Common Stock under the Securities Act.
“ Major Investor ” means any Investor that, individually or together with such Investor’s Affiliates, holds at least one million (1,000,000) shares of Registrable Securities (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof).
“ New Securities ” means, collectively, equity securities of the Company, whether or not currently authorized, Derivative Securities and any rights, options, or warrants to purchase such equity securities, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable (in each case, directly or indirectly) for such equity securities, and, for the avoidance of doubt, any debt securities that are, or may become, convertible or exchangeable into or exercisable (in each case, directly or indirectly) for any equity securities of
 
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the Company; provided however , that “New Securities shall exclude: (a) Exempted Securities (as defined in the Restated Articles); and (b) shares of Common Stock issued in the IPO.
“ Offer Notice ” shall have the meaning set forth in Section 4.
“ Person ” means any individual, corporation, partnership, trust, limited liability company, association or other entity.
“ Preferred Stock ” means shares of the Company’s Series A Preferred Stock.
“ Pro Rata Amount ” means, for each Major Investor, that portion of the New Securities identified in an Offer Notice which equals the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by such Major Investor bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities).
“ Registrable Securities ” means (a) the Common Stock issuable or issued upon conversion of shares of the Preferred Stock held by the Investors and (b) any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right, or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the shares referenced in clause (a) above; excluding in all cases, however, any Registrable Securities sold by a Person in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 7.1, and excluding for purposes of Section 3 any shares for which registration rights have terminated pursuant to Section 6.2 of this Agreement. Notwithstanding the foregoing, the Company shall in no event be obligated to register any Preferred Stock of the Company, and Holders of Registrable Securities will not be required to convert their Preferred Stock into Common Stock in order to exercise the registration rights granted hereunder, until immediately before the closing of the offering to which the registration relates.
“ Registrable Securities then outstanding ” means the number of shares determined by adding the number of shares of outstanding Common Stock that are Registrable Securities and the number of shares of Common Stock issuable (directly or indirectly) pursuant to then exercisable and/or convertible securities that are Registrable Securities.
“ Restated Articles ” means the Company’s Amended and Restated Articles of Incorporation (as may be amended from time to time).
“ Restricted Securities ” means the securities of the Company required to bear the legend set forth in Section 3.12.5 hereof.
“ SEC ” means the Securities and Exchange Commission.
“ SEC Rule 144 ” means Rule 144 promulgated by the SEC under the Securities Act.
“ SEC Rule 145 ” means Rule 145 promulgated by the SEC under the Securities Act.
“ SEC Rule 405 ” means Rule 405 promulgated by the SEC under the Securities Act.
 
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“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“ Selling Expenses ” means all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements of the Selling Holder Counsel borne and paid by the Company as provided in Section 3.6.
“ Selling Holder Counsel ” means one counsel for the selling Holders.
“ Series A Preferred Stock ” means shares of the Company’s Series A Preferred Stock.
“ Standoff Period ” means the period commencing on the date of the final prospectus relating to an underwritten public offering of the Company’s Common Stock under the Securities Act and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (180) days in the case of an IPO and not to exceed ninety (90) days in the case of other public offerings; provided , however , that if during the last seventeen (17) days of such restricted period the Company issues an earnings release or material news, or a material event relating to the Company occurs, or prior to the expiration of the restricted period the Company announces that it will release financial results during the 16-day period beginning on the last day of such restricted period, then the Standoff Period may be extended upon the request of the managing underwriter, to the extent required by any Financial Industry National Regulatory Authority rules, until the expiration of the 18-day period beginning on the issuance of the financial results or the occurrence of the material news or material event).
“ Stock Sale ” means a sale by the Company’s shareholders, in one transaction or series of related transactions, of equity securities that represent, immediately prior to such transaction or transactions, at least seventy-five percent (75%) by voting power of the equity securities of the Company pursuant to an agreement approved by the Board of Directors and entered into by the Company.
“ Voting Agreement ” means that certain Voting Agreement dated of even date hereof by and among the Company and the Investors.
2. INFORMATION RIGHTS .
2.1 Delivery of Financial Statements .
2.1.1 Information to be Delivered . The Company shall deliver the following to each Major Investor.
(a) As soon as practicable after the end of each fiscal year of the Company (beginning with fiscal year 2010) the Company shall deliver, (a) a balance sheet as of the end of such year, (b) statements of income and of cash flows for such year, and (c) a statement of shareholders’ equity as of the end of such year, all such financial statements, all of which shall be audited and prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP).
 
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(b) As soon as practicable after the end of each of the first three (3) quarters of each fiscal year of the Company the Company shall deliver, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of shareholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (a) be subject to normal year-end audit adjustments and (b) not contain all notes thereto that may be required in accordance with GAAP).
2.1.2 Consolidation . If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to Section 2.1.1 shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries.
2.1.3 Suspension or Termination . Notwithstanding anything else in this Section 2.1 to the contrary but subject to Section 6.1, the Company may cease providing the information set forth in this Section 2.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Section 2.1 shall be reinstated at such time as the Company is no longer actively employing its reasonable efforts to cause such registration statement to become effective.
2.2 Inspection . The Company shall permit each Major Investor, at such Major Investor’s expense, and on such Major Investor’s written request, to visit and inspect the Company’s properties; examine its books of account and records; and discuss the Company’s affairs, finances, and accounts with its officers, during normal business hours of the Company as may be reasonably requested by the Major Investor; provided , however , that the Company shall not be obligated pursuant to this Section 2.2 to provide access to any information that it reasonably and in good faith considers to be confidential information (unless covered by an enforceable confidentiality agreement, in form reasonably acceptable to the Company), a trade secret or the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; provided further that it is agreed by the parties hereto that RW Camera Holdings LLC and any other Investor has executed an enforceable confidentiality agreement with the Company by executing this Agreement and Section 2.3 hereof.
2.3 Confidentiality . Each Investor agrees that such Investor will keep confidential and will not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any confidential information obtained from the Company pursuant to the terms of this Section 2 unless such confidential information (a) is known or becomes known to the public in general (other than as a result of a breach of this Section 2.3 by such Investor), (b) is or has been independently developed or conceived by the Investor without use of the Company’s confidential information, or (c) is or has been made known or disclosed to the Investor by a third party without a breach of any obligation of confidentiality such third party may have to the Company; provided , however , that an Investor may disclose confidential information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company; (ii) to any existing Affiliate, partner, member, shareholder, or wholly owned subsidiary of such Investor in the ordinary course of business, but only if such Investor informs such Person that
 
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such information is confidential and directs such Person to maintain the confidentiality of such information; or (iii) as may otherwise be required by law if the Investor promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure.
3. REGISTRATION RIGHTS .
3.1 Demand Registration .
3.1.1 Form S-1 Demand . If at any time after the earlier of (a) December 31, 2014 or (b) one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of a majority of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to any Registrable Securities then outstanding (and the Registrable Securities subject to such request have an anticipated aggregate offering price, net of Selling Expenses, of at least Fifty Million Dollars ($50,000,000), then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) use commercially reasonable efforts to as soon as practicable, and in any event within ninety (90) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 3.1.3 and Section 3.3.
3.1.2 Form S-3 Demand . If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from one or more Holders of at least a majority of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least Seven Million Dollars ($7,000,000), then the Company shall (a) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (b) use commercially reasonable efforts to as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 3.1.3 and Section 3.3.
3.1.3 Delay . Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 3.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its shareholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (a) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (b) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or
 
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(c) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than ninety (90) days after the request of the Initiating Holders is given; provided , however , that (i) the Company may not invoke this right more than once in any twelve (12) month period and (ii) the Company shall not register any securities for its own account or that of any other shareholder during such ninety (90) day period other than an Excluded Registration.
3.1.4 Limitations . The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 3.1.1: (a) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (b) after the Company has effected one (1) registration pursuant to Section 3.1.1; or (c) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.1.2. The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 3.1.2: (i) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two (2) registrations pursuant to Section 3.1.2 within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 3.1.4 until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one registration on Form S-1 or S-3, as applicable, pursuant to Section 3.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 3.1.4.
3.2 Company Registration . If 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 under the Securities Act in connection with the public offering of such securities solely for cash (other than in an Excluded Registration), the Company shall, at such time, promptly give each Holder notice of such registration. Upon the request of each Holder given within twenty (20) days after such notice is given by the Company, the Company shall, subject to the provisions of Section 3.3, cause to be registered all of the Registrable Securities that each such Holder has requested to be included in such registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 3.2 before the effective date of such registration, whether or not any Holder has elected to include Registrable Securities in such registration. The expenses (other than Selling Expenses) of such withdrawn registration shall be borne by the Company in accordance with Section 3.6.
 
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3.3 Underwriting Requirements .
3.3.1 Inclusion . If, pursuant to Section 3.1, the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 3.1, and the Company shall include such information in the Demand Notice. The underwriter(s) will be selected by the Company. 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. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3.4(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Section 3.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned or held by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders; provided , however , that the number of Registrable Securities owned or held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares.
3.3.2 Underwriter Cutback . In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Section 3.2, the Company shall not be required to include any of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of the underwriting as agreed upon between the Company and its underwriters. If the total number of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the offering. If the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Holders in proportion (as nearly as practicable to) the number of Registrable Securities owned or held by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares. Notwithstanding the foregoing, in no event shall (a) the number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering or (b) the number of Registrable Securities included in the offering be reduced below twenty-five percent (25%) of the total number of securities included in such offering, unless such offering is an IPO
 
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in which the aggregate public offering price (before deduction of underwriters’ discounts and commissions) equals or exceeds Fifty Million Dollars ($50,000,000), in which case the selling Holders may be excluded further if the underwriters make the determination described above and no other shareholder’s securities are included in such offering. For purposes of the provision in this Section 3.3.2 concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation, the partners, members, retired partners, retired members, shareholders, and Affiliates of such Holder, or the estates and Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate number of Registrable Securities owned or held by all Persons included in such “selling Holder,” as defined in this sentence.
3.3.3 Registration Not Effected . For purposes of Section 3.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 3.3.1, fewer than seventy-five percent (75%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included.
3.4 Obligations of the Company . Whenever required under this Section 3 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 commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable, and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for a period of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated in the registration statement has been completed; provided , however , that (i) such 120-day period shall be extended for a period of time equal to the period the Holder refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of any registration of Registrable Securities on Form S-3 that are intended to be offered on a continuous or delayed basis, subject to compliance with applicable SEC rules, such 120-day period shall be extended for up to sixty (60) days, if necessary, to keep the registration statement effective until all such Registrable Securities are sold;
(b) prepare and file with the SEC such amendments and supplements to such registration statement, the prospectus and, if required, any Free Writing Prospectus used in connection with such registration statement as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement;
(c) furnish to the selling Holders such numbers of copies of a prospectus, including a preliminary prospectus and any Free Writing Prospectus, as required by the Securities Act, and such other documents as the Holders may reasonably request in order to facilitate their disposition of their Registrable Securities;
 
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(d) use its commercially reasonable 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 selling Holders; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(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 underwriter(s) of such offering;
(f) use its reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;
(h) promptly make available for inspection by the selling Holders, any managing underwriter(s) participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith;
(i) notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus or Free-Writing Prospectus forming a part of such registration statement has been filed;
(j) after such registration statement becomes effective, notify each selling Holder of any request by the SEC that the Company amend or supplement such registration statement or prospectus or Free-Writing Prospectus;
(k) use its commercially reasonable efforts to obtain for the underwriters one or more “cold comfort” letters, dated the effective date of the related registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by “cold comfort” letters;
(l) use its commercially reasonable efforts to obtain for the underwriters on the date such securities are delivered to the underwriters for sale pursuant to
 
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such registration a legal opinion of the Company’s outside counsel with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature;
(m) to the extent the Company is a well-known seasoned issuer (as defined in SEC Rule 405) at the time any request for registration is submitted to the Company in accordance with Section 3.1.2, if so requested, file an Automatic Shelf Registration Statement to effect such registration; and
(n) if at any time when the Company is required to re-evaluate its well-known seasoned issuer status for purposes of an outstanding Automatic Shelf Registration Statement used to effect a request for registration in accordance with Section 3.1.2 the Company determines that it is not a well-known seasoned issuer and (i) the registration statement is required to be kept effective in accordance with this Agreement and (ii) the registration rights of the applicable Holders have not terminated, use commercially reasonable efforts to promptly amend the registration statement on a form the Company is then eligible to use or file a new registration statement on such form, and keep such registration statement effective in accordance with the requirements otherwise applicable under this Agreement.
3.5 Furnish Information . It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 3 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably required to effect the registration of such Holder’s Registrable Securities.
3.6 Expenses of Registration . All expenses (other than Selling Expenses) incurred in connection with registrations, filings, or qualifications pursuant to Section 3, including 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 the Selling Holder Counsel, not to exceed $30,000, shall be borne and paid by the Company; provided , however , that (a) the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 3.1 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 selling Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration), unless the Holders of a majority of the Registrable Securities agree to forfeit their right to one registration pursuant to Section 3.1.1 or Section 3.1.2, as the case may be, and (b) if, at the time of such withdrawal, the Holders shall have learned of a material adverse change in the condition, business, or prospects of the Company not known to the Holders at the time of their request and have withdrawn the request with reasonable promptness after learning of such information, then the Holders shall not be required to pay any of such expenses and shall not forfeit their right to one registration pursuant to Section 3.1.1 or Section 3.1.2. All Selling Expenses relating to Registrable Securities registered pursuant to this Section 3 shall be borne and paid by the Holders pro rata on the basis of the number of Registrable Securities registered on their behalf.
 
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3.7 Delay of Registration . No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 3.
3.8 Indemnification . If any Registrable Securities are included in a registration statement under this Section 3:
3.8.1 Company Indemnification . To the extent permitted by law, the Company will indemnify and hold harmless each selling Holder, and the partners, members, officers, directors, and shareholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Damages, and the Company will pay to each such Holder, underwriter, controlling Person, or other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided , however , that the indemnity agreement contained in this Section 3.8.1 shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, conditioned, or delayed nor shall the Company be liable for any Damages to the extent that they arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of any such Holder, underwriter, controlling Person, or other aforementioned Person expressly for use in connection with such registration.
3.8.2 Selling Holder Indemnification . To the extent permitted by law, each selling Holder, severally and not jointly, will indemnify and hold harmless the Company, and 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 Securities Act, legal counsel and accountants for the Company, any underwriter (as defined in the Securities Act), any other Holder selling securities in such registration statement, and any controlling Person of any such underwriter or other Holder, against any Damages, in each case only to the extent that such Damages arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of such selling Holder expressly for use in connection with such registration; and each such selling Holder will pay to the Company and each other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided , however , that (a) the indemnity agreement contained in this Section 3.8.2 shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld, conditioned or delayed, and (b) that in no event shall the aggregate amounts payable by any Holder by way of indemnity or contribution under Sections 3.8.2 and 3.8.4 exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of fraud or willful misconduct by such Holder.
3.8.3 Procedures . Promptly after receipt by an indemnified party under this Section 3.8 of notice of the commencement of any action (including any governmental
 
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action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 3.8, give the indemnifying party notice of the commencement thereof. The indemnifying party shall have the right to participate in such action and, to the extent the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to assume the defense thereof with counsel mutually satisfactory to the parties; provided , however , that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate 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 action. The failure to give notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Section 3.8, solely to the extent that such failure prejudices the indemnifying party’s ability to defend such action.
3.8.4 Contribution . To provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (a) any party otherwise entitled to indemnification hereunder makes a claim for indemnification pursuant to this Section 3.8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Section 3.8 provides for indemnification in such case, or (b) contribution under the Securities Act may be required on the part of any party hereto for which indemnification is provided under this Section 3.8, then, and in each such case, such parties will contribute to the aggregate losses, claims, damages, liabilities, or expenses to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that resulted in such loss, claim, damage, liability, or expense, as well as to reflect 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 allegedly untrue statement of a material fact, or the omission or alleged omission of 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; provided , however , that:
(i) in any such case, (A) no Holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered and sold by such Holder pursuant to such registration statement, and (B) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and
(ii) in no event shall a Holder’s liability pursuant to this Section 3.8.4, when combined with the amounts paid or payable by such Holder pursuant to Section 3.8.2, exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of fraud or willful misconduct by such Holder.
 
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3.8.5 Underwriting Agreement Controls . 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, the provisions in the underwriting agreement shall control.
3.8.6 Survival . Except to the extent otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Section 3.8 shall survive the completion of any offering of Registrable Securities in a registration under this Section 3, and otherwise shall survive the termination of this Agreement.
3.9 Reports under the Exchange Act . With a view to making available to the Holders the benefits of SEC Rule 144 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 shall:
(a) use commercially reasonable efforts to make and keep available adequate current public information, as those terms are understood and defined in SEC Rule 144, at all times after the effective date of the registration statement filed by the Company for the IPO;
(b) use commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after the Company has become subject to such reporting requirements); and
(c) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by 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 registration statement filed by the Company for the IPO), the Securities Act, and the Exchange Act (at any time after the Company 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 the Company so qualifies); and (ii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time after the Company has become subject to the reporting requirements under the Exchange Act) or pursuant to Form S-3 (at any time after the Company so qualifies to use such form).
3.10 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 Registrable Securities then outstanding, enter into any agreement with any holder or prospective holder of any securities of the Company that would allow such holder or prospective holder to include such securities in any registration if such agreement (a) would allow such holder or prospective holder to include a portion of its securities in any “piggyback” registration if such inclusion could reduce the number of Registrable Securities that selling Holders could be entitled to include in such registration under Sections 3.2 and 3.3.2 hereof or (b) would allow such holder or prospective holder to initiate a demand for registration of any of
 
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its securities at a time earlier than the Holders of Registrable Securities can demand registration under Section 3.1 hereof. In addition, the Company shall not enter into any agreement with respect to any equity securities that grants or provides holders of such securities with registration rights that have terms more favorable than the registration rights granted to Holders of the Registrable Securities in this Agreement unless (i) similar rights are granted to Holders of Registrable Securities or (ii) the granting of such rights has been approved by a majority of the then outstanding shares of Series A Preferred Stock.
3.11 “Market Stand-off” Agreement . Each Holder hereby agrees that, during the Standoff Period, such Holder will not, without the prior written consent of the Company or the managing underwriter,
(a) lend, 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 or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock, or any securities convertible into or exercisable or exchangeable (directly or indirectly) for Common Stock, held immediately before the effective date of the registration statement for such offering; or
(b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock or other securities, in cash, or otherwise.
The foregoing provisions of this Section 3.11 shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement, and shall be applicable to the Holders only if all officers, directors, and shareholders individually owning more than five percent (5%) of the Company’s outstanding Common Stock (after giving effect to conversion into Common Stock of all outstanding Preferred Stock) are similarly bound. For purposes of this Section 3.11, the term “Company” shall include any wholly-owned subsidiary of the Company into which the Company merges or consolidates. In order to enforce the foregoing covenant, the Company shall have the right to place restrictive legends on the certificates representing the shares subject to this Section and to impose stop transfer instructions with respect to the such shares until the end of such period. The underwriters in connection with such registration are intended third-party beneficiaries of this Section 3.11 and shall have the right, power, and authority to enforce the provisions hereof as though they were a party hereto. Each Holder further agrees to execute such agreements as may be reasonably requested by the underwriters in connection with such registration that are consistent with this Section 3.11 or that are necessary to give further effect thereto.
3.12 Restrictions on Transfer and Right of First Refusal .
3.12.1 Restrictions on Transfer of Investor Restricted Securities .
(a) No Holder shall transfer any Restricted Securities to any person or entity that is a Competitor of the Company.
 
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(b) Any transferee, assignee, or other recipient of Restricted Securities shall receive and hold the Restricted Securities subject to the provisions of this Section 3.12.1, and there shall be no further transfer of such stock except in accordance with this Section 3.12.1.
3.12.2 Right of First Refusal .
In addition to any other limitation on transfer created by applicable securities laws, this Agreement, or by contract, no Investor shall assign or dispose of any interest in any Restricted Securities except in compliance with the provisions below and applicable securities laws.
(a) Right of First Refusal . Before any Restricted Securities held by an Investor may be sold or otherwise transferred (including transfer by gift or operation of law), the Company or its assignee(s) shall have a right of first refusal to purchase the Restricted Securities on the terms and conditions set forth herein (the “ Right of First Refusal ”).
(b) Notice of Proposed Transfer . The Investor shall deliver to the Company a written notice (the “ Notice ”) stating: (i) the Investor’s bona fide intention to sell or otherwise transfer such Restricted Securities; (ii) the name of each proposed transferee (“ Proposed Transferee ”); (iii) the number of Restricted Securities to be transferred to each Proposed Transferee; (iv) the terms and conditions of each proposed sale or transfer and (v) the documentation required to be provided to the Company by the Investor pursuant to Section 3.12.6 below. The Investor shall offer the Restricted Securities at the same price (the “ Offered Price ”) and upon the same terms (or terms as similar as reasonably possible) to the Company or its assignee(s).
(c) Exercise of Right of First Refusal . At any time within thirty (30) days after receipt of the Notice, the Company and/or its assignee(s) may, by giving written notice to the Investor, elect to purchase all, but not less than all, of the Restricted Securities proposed to be transferred to any one or more of the Proposed Transferees, at the purchase price determined in accordance with subsection 3.12.2(d) below.
(d) Purchase Price . The purchase price (“ Purchase Price ”) for the Restricted Securities purchased by the Company or its assignee(s) under this Section 3.12.2 shall be the Offered Price. If the Offered Price includes consideration other than cash, the cash equivalent value of the non-cash consideration shall be determined by the Board in good faith.
(e) Payment . Payment of the Purchase Price shall be made, at the option of the Company or its assignee(s), in cash (by check or wire transfer), by cancellation of all or a portion of any outstanding indebtedness, or by any combination thereof within thirty (30) days after receipt of the Notice or in the manner and at the times set forth in the Notice.
(f) Investor’s Right to Transfer . If all of the Restricted Securities proposed in the Notice to be transferred to the Proposed Transferee(s) are not purchased by the Company and/or its assignee(s) as provided herein, then the Investor may sell or otherwise transfer such Restricted Securities to the Proposed Transferee(s) described in the Notice at the Offered Price or at a higher price, provided that such sale or other transfer is consummated within sixty (60) days after the date of the Notice and provided further that any such sale or other transfer is effected in accordance with any applicable securities laws. If the Restricted Securities described in the
 
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Notice are not transferred to the Proposed Transferee(s) within such period, or if the Investor proposes to change the price or other terms to make them more favorable to the Proposed Transferee(s), a new Notice shall be given to the Company, and the Company and/or its assignees shall again be offered the right of first refusal provided herein before any Restricted Securities held by the Investor may be sold or otherwise transferred. The terms of this subsection 3.12.2(f) may be waived by the Company or its assignee(s) in their sole discretion.
(g) Exception for Certain Transfers . Anything to the contrary contained herein notwithstanding, the following transfers shall be exempt from the Right of First Refusal:
(i) the transfer of any or all of the Restricted Securities during Investor’s lifetime or on Investor’s death by gift, will or intestacy to Investor’s Immediate Family or a trust for the benefit of Investor or Investor’s Immediate Family;
(ii) the transfer by an entity to an affiliated person or entity, including any affiliated member, partner, or venture capital fund;
(iii) the transfer by an Investor which is a limited or general partnership to any or all of its partners or a transfer by an Investor which is a limited liability company to any or all of its members;
(iv) the transfer for no consideration to an organization that is tax-exempt under Section 501(c)(3) of the Internal Revenue Code; and
(v) the transfer by an Investor (as defined in the Co-Sale Agreement) exercising such Investor’s Co-Sale Right (as defined in the Co-Sale Agreement).
(h) In the case of any transfer effected in accordance with subsections (f) or (g) above, the transferee, assignee or other recipient shall receive and hold the Restricted Securities subject to the provisions of this Section 3.12.2, and there shall be no further transfer of such stock except in accordance with this Section 3.12.2.
Section 3.12.3 Termination of Rights; Legend; Waiver .
The restrictions in Sections 3.12.1 and 3.12.2 shall terminate upon the earlier to occur of (i) the closing of a Deemed Liquidation Event; or (ii) the first sale of Common Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the SEC under the Securities Act. Upon termination of such restrictions, a new certificate or certificates representing the Restricted Securities not repurchased shall be issued, on request, without the legend referred to in subsection 3.12.5 below and delivered to each Investor.
The provisions of Sections 3.12.1 and 3.12.2 may be waived, with respect to any transaction subject thereto, by the Company; provided , however , that such restrictions shall continue to apply to the Restricted Securities subsequent to such transaction.
3.12.4 Agreement Binding . The Preferred Stock and the Registrable Securities shall not be sold, pledged, or otherwise transferred, and the Company shall not
 
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recognize and shall issue stop-transfer instructions to its transfer agent with respect to any such sale, pledge, or transfer, except upon the conditions specified in this Agreement, which conditions are intended to ensure compliance with the provisions of the Securities Act. A transferring Holder will cause any proposed purchaser, pledgee, or transferee of the Preferred Stock and the Registrable Securities held by such Holder to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement.
3.12.5 Legends . Each certificate or instrument representing (a) the Preferred Stock, (b) the Registrable Securities, and (c) any other securities issued in respect of the securities referenced in clauses (a) and (b), upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall (unless otherwise permitted by the provisions of Section 3.12.6) be stamped or otherwise imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD, PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
THE SECURITIES REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
The Holders consent to the Company making a notation in its records and giving instructions to any transfer agent of the Restricted Securities in order to implement the restrictions on transfer set forth in this Section 3.12.
3.12.6 Procedure . The holder of each certificate representing Restricted Securities, by acceptance thereof, agrees to comply in all respects with the provisions of this Section 3. Before any proposed sale, pledge, or transfer of any Restricted Securities, unless there is in effect a registration statement under the Securities Act covering the proposed transaction, the Holder thereof shall give notice to the Company of such Holder’s intention to effect such sale, pledge, or transfer. Each such notice shall describe the manner and circumstances of the proposed sale, pledge, or transfer in sufficient detail and, if reasonably requested by the Company, shall be accompanied at such Holder’s expense by either (a) a written opinion of legal counsel who shall, and whose legal opinion shall, be reasonably satisfactory to the Company, addressed to the Company, to the effect that the proposed transaction may be effected without registration under the Securities Act; (b) a “no action” letter from the SEC to the effect that the proposed sale, pledge, or transfer of such Restricted Securities without registration will not result in a recommendation by the staff of the SEC that action be taken with respect thereto; or (c) any other evidence reasonably satisfactory to counsel to the Company to the effect that the proposed sale, pledge, or transfer of the Restricted Securities may be effected without registration under the Securities Act, whereupon the Holder of such Restricted Securities shall be entitled to sell, pledge, or transfer such Restricted Securities in accordance with the terms of the notice given by the Holder to the Company. The Company will not require such a legal opinion or “no action” letter (i) in any transaction in compliance with SEC Rule 144 or (ii) in any transaction in which
 
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such Holder distributes Restricted Securities to an Affiliate of such Holder for no consideration; provided that each transferee agrees in writing to be subject to the terms of this Section 3.12. Each certificate or instrument evidencing the Restricted Securities transferred as above provided shall bear, except if such transfer is made pursuant to SEC Rule 144, the appropriate restrictive legend set forth in Section 3.12.5, except that such certificate shall not bear such restrictive legend if, in the opinion of counsel for such Holder and the Company, such legend is not required in order to establish compliance with any provisions of the Securities Act.
4. RIGHTS TO FUTURE STOCK ISSUANCES . Subject to the terms and conditions of this Section 4 and applicable securities laws, if the Company proposes to sell any New Securities, the Company shall offer to sell a portion of such New Securities to each Major Investor as described in this Section 4. A Major Investor shall be entitled to apportion the right of first refusal hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate. The right of first refusal in this Section 4 shall not be applicable with respect to any Major Investor, if at the time of such subsequent securities issuance, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) under the Securities Act.
4.1. Company Notice . The Company shall give notice (the “ Offer Notice ”) to each Major Investor, stating (a) its bona fide intention to sell such New Securities, (b) the number of such New Securities to be sold and (c) the price and terms, if any, upon which it proposes to sell such New Securities.
4.2 Investor Right . By written notice (the “ Investor Notice ”) to the Company within twenty (20) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to such Major Investor’s Pro Rata Amount. In addition, each Major Investor that elects to purchase or acquire all of its Pro Rata Amount (each, a “ Fully Exercising Investor ”) may, in the Investor Notice, elect to purchase or acquire, in addition to its Pro Rata Amount, a portion of the New Securities, if any, for which other Major Investors were entitled to subscribe but that are not subscribed for by such Major Investors. The amount of such overallotment that each Fully Exercising Investor shall be entitled to purchase is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares A Major Investor’s election may be conditioned on the consummation of the transaction described in the Offer Notice. The closing of any sale pursuant to this Section 4.2 shall occur on the earlier of one hundred and twenty (120) days after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 4.3.
4.3 Sale of Securities . If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 4.2, the Company may, during the ninety (90) day period following the expiration of the periods provided in Section 4.2, offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30)
 
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days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.
4.4 Alternate Procedure . Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of Sections 4.1 and 4.2, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities, and the identities of the Persons to whom the New Securities were sold. Each Major Investor shall have twenty (20) days after the date the Company’s notice is given to elect, by giving notice to the Company, to purchase up to the number of New Securities that such Major Investor would otherwise have the right to purchase pursuant to Section 4.2 above had the Company complied with the provisions of Sections 4.1 and 4.2 in connection with the issuance of such New Securities under the terms and conditions set forth in the Company’s notice pursuant to this Section 4.4. Any Major Investors electing to purchase such New Securities shall also have rights of oversubscription to purchase New Securities that were purchasable by other Major Investors pursuant to the foregoing sentence but were not so purchased, and such rights of oversubscription shall be apportioned in a manner consistent with the apportionment among Fully Exercising Investors described in Section 4.2. The closing of such sale shall occur within sixty (60) days of the date notice is given to the Major Investors.
5. ADDITIONAL COVENANTS AND AGREEMENTS .
5.1 Company Cooperation in Connection with Major Investor Capital Sale of Restricted Securities . In the event that any Major Investor, or any Affiliate or successor in interest thereto, desires to sell any or all of its Restricted Securities, other than pursuant to Sections 3.1 or 3.2 hereof, and provided that any potential acquirer of such Restricted Securities has been approved in writing by the Company (a “ Consent of Major Investor Sale ”)(which approval shall not be unreasonably withheld or delayed), the Company shall provide such Major Investor with reasonable cooperation in connection such proposed sale; provided , however , the Company shall not be required to undertake any action pursuant to this Section 5.1 that (i) would, in the reasonable determination of legal counsel to the Company, violate applicable federal or state securities laws, (ii) materially interfere with the business or operations of the Company, or (iii) subject the Company to any liability, including, but not limited to, liability under any federal or state securities laws; provided , further , that the Company may withhold any Consent of Major Investor Sale with respect to any proposed sale of Restricted Securities by any such Major Investor if the proposed purchaser is a Competitor (as defined herein) of the Company.
5.2 Insurance . If requested by holders of at least a majority of the outstanding shares of Preferred Stock (determined on an as-converted basis), the Company shall use its commercially reasonable efforts to promptly obtain Directors and Officers liability insurance from a financially sound and reputable insurer in such amount and on such terms as determined by the Board of Directors, and will use commercially reasonable efforts to cause such insurance policies to be maintained until such time as the Board of Directors determines that such insurance should be discontinued.
 
21

5.3 Employee Agreements . The Company will cause each person now or hereafter employed or engaged by it or by any subsidiary (or engaged by the Company or any subsidiary as a consultant/independent contractor) with access to confidential information and/or trade secrets, or performing services that consist of the development of technology, to enter into a customary nondisclosure and proprietary rights assignment agreement.
5.4 Employee Vesting . Unless otherwise approved by the Board of Directors with the consent of the Series A Director (as defined in the Restated Articles), all employees and consultants of the Company or its subsidiaries who purchase, receive options to purchase, or receive awards of shares of the Company’s capital stock after the date hereof shall be required to execute restricted stock or option agreements, as applicable, providing for vesting of shares over a four (4) year period, with the first twenty-five percent (25%) of such shares vesting following twelve (12) months of continued employment or service (or the date of grant in the case of a grant to an existing employee or consultant), and the remaining shares vesting in equal monthly installments over the following thirty-six (36) months.
5.5 Successor Indemnification . If the Company or any of its successors or assignees consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, then to the extent necessary, proper provision shall be made so that the successors and assignees of the Company assume the obligations of the Company with respect to indemnification of members of the Board of Directors as in effect immediately before such transaction, whether such obligations are contained in the Company’s Bylaws, the Restated Articles, indemnity agreements, or elsewhere, as the case may be.
5.6 Board Matters . Unless otherwise determined by the vote of a majority of the directors then in office including the consent of the Series A Director (as defined in the Restated Articles), the Board of Directors shall meet at least quarterly in accordance with an agreed-upon schedule. The Company shall reimburse the directors for all reasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection with attending meetings of the Board of Directors. If determined by the vote of a majority of the directors then in office, the Board of Directors shall cause to be established an audit and compensation committee. The director nominated by RW Camera Holdings LLC pursuant to the Voting Agreement shall be entitled, in such person’s discretion, to be a member of the Company’s audit committee and compensation committee. Subject to applicable law, no director shall participate in any decision of the Board of Directors in which such director has a material financial interest.
5.7 Felony Conviction . In the event that any officer or director is convicted of, or enters into a plea of guilty or no contest to, a felony involving moral turpitude, such officer or director shall, upon the vote of a majority of the disinterested members of the Board of Directors, promptly resign as a director and/or officer of the Company.
6. TERMINATION.
6.1 Generally . The covenants set forth in Section 2.1, Section 2.2, Section 4 and Section 5 shall terminate and be of no further force or effect upon the earliest to occur of: (a) immediately before the consummation of an IPO in which the aggregate public offering price
 
22

(before deduction of underwriters’ discounts and commissions) equals or exceeds Fifty Million Dollars ($50,000,000) or (b) upon the consummation of a Deemed Liquidation Event or the consummation of a Company Sale (as defined in that certain Voting Agreement by and among the Company, the Investors and certain other shareholders of the Company, dated as of the date hereof).
6.2 Registration Rights . The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Section 3.1 or Section 3.2 shall terminate upon the earliest to occur of: (a) when all of such Holder’s Registrable Securities could be sold without any restriction on volume or manner of sale in any three-month period under SEC Rule 144 or any successor; (b) upon the consummation of a Deemed Liquidation Event or the consummation of a Company Sale (as defined in that certain Voting Agreement by and among the Company, the Investors and certain other shareholders of the Company, dated as of the date hereof).; and (c) the fifth (5th) anniversary of an IPO in which the aggregate public offering price (before deduction of underwriters’ discounts and commissions) equals or exceeds Fifty Million Dollars ($50,000,000).
7. GENERAL PROVISIONS .
7.1 Successors and Assigns . The rights under this Agreement may be assigned (but only with all related obligations) by a Holder to a transferee of Registrable Securities that (a) is an Affiliate, partner, member, limited partner, retired or former partner, retired or former member, or shareholder of a Holder or such Holder’s Affiliate; (b) is a Holder’s Immediate Family Member or trust for the benefit of an individual Holder or one or more of such Holder’s Immediate Family Members; (c) after such transfer, holds at least two percent (2%) of the shares of Registrable Securities (or if the transferring Holder owns less than two percent (2%) of the Registrable Securities, then all Registrable Securities held by the transferring Holder); or (d) is an entity that is controlled by or under common control with one or more general partners or managing partners or managing members of, or shares the same management company with, any direct or indirect owner of Preferred Stock or Registrable Securities; provided , however , that (i) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee and the Registrable Securities with respect to which such rights are being transferred; and (ii) such transferee agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions of this Agreement, including the provisions of Section 3.11. For the purposes of determining the number of shares of Registrable Securities held by a transferee, the holdings of a transferee (A) that is an Affiliate, limited partner, retired or former partner, member, retired or former member, or shareholder of a Holder or such Holder’s Affiliate; (B) who is a Holder’s Immediate Family Member; or (C) that is a trust for the benefit of an individual Holder or such Holder’s Immediate Family Member shall be aggregated together and with those of the transferring Holder. The terms and conditions of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.
 
23

7.2 Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws.
7.3 Counterparts; Facsimil e . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
7.4 Titles and Subtitles . The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
7.5 Notices . All notices, requests, and other communications given, made or delivered pursuant to this Agreement shall be in writing and shall be deemed effectively given, made or delivered upon the earlier of actual receipt or: (a) personal delivery to the party to be notified; (b) when sent, if sent by facsimile during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next business day; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their addresses as set forth on Schedule A hereto, or to the principal office of the Company and to the attention of the Chief Executive Officer, in the case of the Company, or to such address or facsimile number as subsequently modified by written notice given in accordance with this Section 7.5. If notice is given to the Company, it shall be sent to 2450 Cabrillo Hwy South, Ste. 250, Half Moon Bay, CA 94019 , Attention: Chief Financial Officer; and a copy (which shall not constitute notice) shall also be sent to Fenwick & West LLP, Silicon Valley Center, 801 California Street, Mountain View, California 94041 Attn: Cynthia Clarfield Hess. If no facsimile number is listed on Schedule A for a party (or above in the case of the Company), notices and communications given or made by facsimile shall not be deemed effectively given to such party.
7.6 Amendments and Waivers . This Agreement may only be amended or terminated and the observance of any term hereof may be waived (either generally or in a particular instance, and either retroactively or prospectively) only by a written instrument executed by the Company and (a) with respect to Sections 2 and 4 and any other provision of this Agreement to the extent such provision pertains to Sections 2 or 4, the holders of a majority of the Registrable Securities then outstanding and held by the Major Investors or (b) with respect to Sections 3 and 5 and any other provision of this Agreement to the extent such provision pertains to Sections 3 or 5, the holders of a majority of the Registrable Securities then outstanding; provided that (i) the Company may in its sole discretion waive compliance with Section 3.12.6 (and the Company’s failure to object promptly in writing after notification of a proposed assignment allegedly in violation of Section 3.12.6 shall be deemed to be a waiver); and (ii) any provision hereof may be waived by any waiving party on such party’s own behalf, without the consent of any other party. Any amendment, termination, or waiver effected in accordance with this Section 7.6 shall be binding on each party hereto and all of such party’s successors and permitted assigns, regardless of whether or not any such party, successor or assignee entered into or approved such amendment, termination, or waiver. No waivers of or exceptions to any term,
 
24

condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision. Notwithstanding the foregoing, the provisions of Section 5.1 hereof shall not be amended, waived or terminated with respect to any particular Major Investor without the written consent of such particular Major Investor.
7.7 Severability . In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.
7.8 Aggregation of Stock . All shares of Registrable Securities held or acquired by Affiliates shall be aggregated together for the purpose of determining the availability of any rights under this Agreement and such affiliated persons may apportion such rights as among themselves in any manner they deem appropriate.
7.9 Entire Agreement . This Agreement (including any Schedules and Exhibits hereto) constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled and replaced with this Agreement.
7.10 Delays or Omissions . No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to 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. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.
7.11 Dispute Resolution . The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the federal or state courts located in the Northern District of California for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the federal or state courts located in the Northern District of California, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that a party is not subject to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution based upon judgment or order of such court(s), that any suit, action or proceeding arising out of or based upon this Agreement commenced in the federal or state courts located in the Northern District of California is brought in an inconvenient forum, that the venue of such suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. Should any party commence a suit, action or other proceeding arising out of or based upon this Agreement in a forum other than the federal or state courts located in the Northern District of California, or should any party otherwise seek to transfer or dismiss such suit, action or proceeding from such court(s), that party shall indemnify
 
25

and reimburse the other party for all legal costs and expenses incurred in enforcing this provision.
7.12 Attorneys’ Fees . If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the non-prevailing party shall pay all costs and expenses incurred by the prevailing party, including, without limitation, all reasonable attorneys’ fees.
7.13 Additional Investors . Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of the Company’s Series A Preferred Stock after the date hereof, any purchaser of such shares of Series A Preferred Stock may become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action or consent by the Investors shall be required for such joinder to this Agreement by such additional Investor or Lender, so long as such additional Investor or Lender has agreed in writing to be bound by all of the obligations as an “Investor” or a “Lender” hereunder, as applicable.
[R EMAINDER OF P AGE I NTENTIONALLY L EFT B LANK ; S IGNATURE P AGES F OLLOW
 
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IN WITNESS WHEREOF, the parties have executed this I NVESTORS ’ R IGHTS A GREEMENT as of the date first written above.

COMPANY :	
	
WOODMAN LABS, INC.	
		
By:	 	/s/ Nicholas D. Woodman	
Name:	 	Nicholas D. Woodman	
Title:	 	President & Chief Executive Officer	
[SIGNATURE PAGE TO INVESTOR’S RIGHTS AGREEMENT]

IN WITNESS WHEREOF, the parties have executed this I NVESTORS ’ R IGHTS A GREEMENT as of the date first written above.

INVESTOR :	
	
RW CAMERA HOLDINGS LLC	
		
By:	 	RIVERWOOD CAPITAL L.P., its manager	
By:	 	Riverwood Capital GP Ltd., its general partner	
		
By:	 	/s/ Michael Marks	
Name:	 	Michael Marks	
Title:	 	Director	
[SIGNATURE PAGE TO INVESTOR’S RIGHTS AGREEMENT]

IN WITNESS WHEREOF, the parties have executed this I NVESTORS ’ R IGHTS A GREEMENT as of the date first written above.

INVESTOR :	
	
SAGEVIEW CAPITAL MASTER, L.P.	
		
By:	 	Sageview Capital GenPar, Ltd.	
its General Partner	
		
By:	 	/s/ Edward A Gilhuly	
Name:	 	Edward A Gilhuly	
Title:	 	Director	
[SIGNATURE PAGE TO INVESTOR’S RIGHTS AGREEMENT]

IN WITNESS WHEREOF, the parties have executed this I NVESTORS ’ R IGHTS A GREEMENT as of the date first written above.

INVESTOR :	
	
STEAMBOAT VENTURES III, LLC	
		
By:	 	Steamboat Ventures Manager III, LLC	
Its:	 	Managing Member	
		
By:	 	/s/ Daniel L. Beldy	
Name:	 	Daniel L. Beldy	
Title:	 	Officer	
[SIGNATURE PAGE TO INVESTOR’S RIGHTS AGREEMENT]

IN WITNESS WHEREOF, the parties have executed this I NVESTORS ’ R IGHTS A GREEMENT as of the date first written above.

INVESTOR :	
	
U.S. V ENTURE P ARTNERS X, L.P.	
USVP X A FFILIATES , L.P.	
	
By Presidio Management Group X, L.L.C.	
The General Partner of Each	
		
By:	 	/s/ Jonathan D. Root	
	 	Jonathan D. Root, Managing Member	
[SIGNATURE PAGE TO INVESTOR’S RIGHTS AGREEMENT]

IN WITNESS WHEREOF, the parties have executed this I NVESTORS ’ R IGHTS A GREEMENT as of the date first written above.

INVESTOR :	
	
F&W INVESTMENTS LP – SERIES 2010	
		
By:	 	F&W Operations LLC	
Its:	 	General Partner	
		
By:	 	/s/ Laird H. Simons III	
Name:	 	Laird H. Simons III	
Its:	 	Managing Member	
[SIGNATURE PAGE TO INVESTOR’S RIGHTS AGREEMENT]

SCHEDULE A
List of Investors

Name and Address of Investors	 	 	 	Shares of Series
A Preferred Stock Initially
Held	
RW CAMERA HOLDINGS LLC
70 Willow Road
Suite 100, Menlo Park, CA 94025
Attention: Jeff Parks	 		 	6,963,042	
			
With a copy (which shall not constitute notice) to:
Simpson Thacher & Bartlett LLP
2550 Hanover Street
Palo Alto, CA 94304
Attention: Mike Nooney
Fax (650) 251-5002	 		 		
			
SAGEVIEW CAPITAL MASTER, L.P.
245 Lytton Avenue, Suite 250
Palo Alto, CA 94301
Attention: Edward Gilhuly	 		 	2,631,545	
			
STEAMBOAT VENTURES III, LLC
3601 West Olive Avenue, Suite 650
Burbank, CA 91505
Attention: Beau Laskey	 		 	1,315,772	
			
With a copy (which shall not constitute notice) to:
4365 Executive Drive, Suite 1100
San Diego, California 92121-2133
Attention: Randy L. Socol
Fax (858) 638-5057	 		 		
			
U.S. VENTURE PARTNERS X, L.P.
2735 Sand Hill Road
Menlo Park, CA 94025
Attn: Chief Financial Officer
Fax: (650) 854-3018	 		 	637,492	
			
USVP X AFFILIATES, L.P.
2735 Sand Hill Road
Menlo Park, CA 94025
Attn: Chief Financial Officer
Fax: (650) 854-3018	 		 	20,394	

							
FENWICK & WEST INVESTMENT LP
Silicon Valley Center
801 California Avenue
Mountain View, CA 94041
Attention: Laird H. Simons III	 		 	 	9,868	  	
	 	     TOTAL:    	 	 	11,578,113	  	

WOODMAN LABS, INC.
AMENDMENT NUMBER ONE
TO
INVESTORS’ RIGHTS AGREEMENT
THIS AMENDMENT NUMBER ONE TO INVESTORS’ RIGHTS AGREEMENT (this “ Amendment ”) is made as of March 10, 2011, by and among Woodman Labs, Inc., a California corporation (the “ Company ”), and the undersigned parties. Capitalized terms used herein and not otherwise defined in this Amendment shall have the meanings set forth in the Investors’ Rights Agreement (as defined below).
RECITALS
WHEREAS, the Company and certain shareholders of the Company entered into that certain Investors’ Rights Agreement dated as of February 25, 2011 (the “ Investors’ Rights Agreement ”); and
WHEREAS, in accordance with Section 7.6 of the Investors’ Rights Agreement, the Company and the undersigned parties, who hold a sufficient number of Registrable Securities to amend the Investors’ Rights Agreement, have agreed to amend the Investors’ Rights Agreement as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendment to Section 1 of the Investors’ Rights Agreement . The definition of term “Major Investor” as set forth in Section 1 of the Investors’ Rights Agreement shall be amended and restated in its entirety to read as follows:
“ Major Investor ” means any Investor that, individually or together with such Investor’s Affiliates, holds at least six hundred fifty thousand (650,000) shares of Registrable Securities (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof).”
2. Amendment to Section 5.4 of the Investors’ Rights Agreement . Section 5.4 of the Investors’ Rights Agreement shall be amended and restated in its entirety to read as follows:
“5.4 Employee Vesting . Unless otherwise approved by the Board of Directors with the consent of the RWCH Designee (as such term is defined in that certain Voting Agreement by and among the Company and certain investors and shareholders of the Company dated February 25, 2011, as amended), all employees and consultants of the Company or its subsidiaries who purchase, receive options to purchase, or receive awards of shares of the Company’s capital stock after the date hereof shall be required to execute restricted stock or option agreements, as applicable, providing for vesting of shares over a four (4) year period, with the first twenty-five percent (25%) of such shares vesting following twelve (12) months of continued employment or service (or the date of grant in the case of a grant to an existing employee or consultant), and the

remaining shares vesting in equal monthly installments over the following thirty-six (36) months. ”
3. Amendment to Section 5.6 of the Investors’ Rights Agreement . Section 5.6 of the Investors’ Rights Agreement shall be amended and restated in in its entirety to read as follows:
“5.6 Board Matters . Unless otherwise determined by the vote of a majority of the directors then in office including the consent of the RWCH Designee, the Board of Directors shall meet at least quarterly in accordance with an agreed-upon schedule. The Company shall reimburse the directors for all reasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection with attending meetings of the Board of Directors. If determined by the vote of a majority of the directors then in office, the Board of Directors shall cause to be established an audit and compensation committee. The RWCH Designee shall be entitled, in such person’s discretion, to be a member of the Company’s audit committee and compensation committee. Subject to applicable law, no director shall participate in any decision of the Board of Directors in which such director has a material financial interest.”
4. Amendment to Section 7.6 of the Investors’ Rights Agreement . Section 7.6 of the Investors’ Rights Agreement shall be amended and restated in in its entirety to read as follows:
“7.6 Amendments and Waivers . This Agreement may only be amended or terminated and the observance of any term hereof may be waived (either generally or in a particular instance, and either retroactively or prospectively) only by a written instrument executed by the Company and (a) with respect to Sections 2 and 4 and any other provision of this Agreement to the extent such provision pertains to Sections 2 or 4, the holders of a majority of the Registrable Securities then outstanding and held by the Major Investors or (b) with respect to Sections 3 and 5 and any other provision of this Agreement to the extent such provision pertains to Sections 3 or 5, the holders of a majority of the Registrable Securities then outstanding; provided that (i) the Company may in its sole discretion waive compliance with Section 3.12.6 (and the Company’s failure to object promptly in writing after notification of a proposed assignment allegedly in violation of Section 3.12.6 shall be deemed to be a waiver); and (ii) any provision hereof may be waived by any waiving party on such party’s own behalf, without the consent of any other party. Any amendment, termination, or waiver effected in accordance with this Section 7.6 shall be binding on each party hereto and all of such party’s successors and permitted assigns, regardless of whether or not any such party, successor or assignee entered into or approved such amendment, termination, or waiver. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision. Notwithstanding the foregoing, the provisions of Section 5.1 hereof shall not be amended, waived or terminated with respect to any particular Major Investor without the written consent of such particular Major Investor. In addition, notwithstanding anything set forth in this Section 7.6, no amendment, modification or waiver that treats any Investor in a material adverse manner differently than other Investors and that is also disproportionate to the amount of Registrable Securities held by such Investor shall be effective against such disproportionately treated Investor unless such disproportionately treated Investor consents to such amendment, modification, or waiver, as the case may be.”
5. Entire Agreement . The Investors’ Rights Agreement, as amended hereby, contains the entire agreement among the parties with respect to the subject matter thereof and hereof and shall be read and construed together as a single agreement. Except to the extent amended hereby, all of the terms,
 
2

provisions and conditions of the Investors’ Rights Agreement are hereby ratified and confirmed and shall remain in full force and effect as of the date specified therein.
6. Counterparts . This Amendment may be executed by the parties in separate counterparts, each of which when so executed and delivered will be an original, but all of which together will constitute one and the same agreement.
7. Captions . The captions of sections or subsections of this Amendment are for reference only and will not affect the interpretation or construction of this Amendment.
[R EMAINDER OF P AGE IS I NTENTIONALLY L EFT B LANK ]
 
3

IN WITNESS WHEREOF, the parties have executed this A MENDMENT N UMBER O NE TO I NVESTORS ’ R IGHTS A GREEMENT as of the date first written above.

COMPANY :	
	
WOODMAN LABS, INC.	
		
By:	 	/s/ Nicholas D. Woodman	
	 	Name: Nicholas D. Woodman	
	 	Title: President and Chief Executive Officer	

IN WITNESS WHEREOF, the parties have executed this A MENDMENT N UMBER O NE TO I NVESTORS ’ R IGHTS A GREEMENT as of the date first written above.

INVESTOR :	
	
RW CAMERA HOLDINGS LLC	
		
By:	 	RIVERWOOD CAPITAL L.P., its manager	
		
By:	 	Riverwood Capital GP Ltd., its general partner	
		
By:	 	/s/ Michael Marks	
Name:	 	Michael Marks	
Title:	 	Director	

Exhibit 10.01
INDEMNITY AGREEMENT
This Indemnity Agreement, dated as of                 , 20                is made by and between                             , a Delaware corporation (the “ Company ”), and             , a director, officer or key employee of the Company or one of the Company’s subsidiaries or other service provider who satisfies the definition of Indemnifiable Person set forth below (“ Indemnitee ”).
RECITALS
A. The Company is aware that competent and experienced persons are increasingly reluctant to serve as representatives of corporations unless they are protected by comprehensive liability insurance and indemnification, due to increased exposure to litigation costs and risks resulting from their service to such corporations, and due to the fact that the exposure frequently bears no relationship to the compensation of such representatives;
B. The members of the Board of Directors of the Company (the “ Board ”) have concluded that to retain and attract talented and experienced individuals to serve as representatives of the Company and its Subsidiaries and Affiliates and to encourage such individuals to take the business risks necessary for the success of the Company and its Subsidiaries and Affiliates, it is necessary for the Company to contractually indemnify certain of its representatives and the representatives of its Subsidiaries and Affiliates, and to assume for itself maximum liability for Expenses and Other Liabilities in connection with claims against such representatives in connection with their service to the Company and its Subsidiaries and Affiliates;
C. Section 145 of the Delaware General Corporation Law (“ Section 145 ”), empowers the Company to indemnify by agreement its officers, directors, employees and agents, and persons who serve, at the request of the Company, as directors, officers, employees or agents of other corporations, partnerships, joint ventures, trusts or other enterprises, and expressly provides that the indemnification provided thereby is not exclusive; and
D. The Company desires and has requested Indemnitee to serve or continue to serve as a representative of the Company and/or the Subsidiaries or Affiliates of the Company free from undue concern about inappropriate claims for damages arising out of or related to such services to the Company and/or the Subsidiaries or Affiliates of the Company.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions .
(a) Affiliate . For purposes of this Agreement, “Affiliate” of the Company means any corporation, partnership, limited liability company, joint venture, trust or other

enterprise in respect of which Indemnitee is or was or will be serving as a director, officer, trustee, manager, member, partner, employee, agent, attorney, consultant, member of the entity’s governing body (whether constituted as a board of directors, board of managers, general partner or otherwise), fiduciary, or in any other similar capacity at the request, election or direction of the Company, and including, but not limited to, any employee benefit plan of the Company or a Subsidiary or Affiliate of the Company.
(b) Change in Control . For purposes of this Agreement, “Change in Control” means (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a Subsidiary or a trustee or other fiduciary holding securities under an employee benefit plan of the Company or Subsidiary, is or becomes the “Beneficial Owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding capital stock (provided, however, that following the consummation of a firmly underwritten initial public offering registered under the Securities Act of 1933, as amended, of the Company’s capital stock, a person’s becoming the Beneficial Owner, directly or indirectly, of securities representing more than 20% of the total voting power represented by the Company’s then outstanding capital stock shall not be a Change in Control if such person has become such owner by becoming the Beneficial Owner of shares of the Company’s Class B Common Stock) or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) 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 a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation that would result in the outstanding capital stock of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into capital stock of the surviving entity) at least 80% of the total voting power represented by the capital stock of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company (in one transaction or a series of transactions) of all or substantially all of the Company’s assets.
(c) Expenses . For purposes of this Agreement, “Expenses” means all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees and related disbursements, and other out-of-pocket costs), paid or incurred by Indemnitee in connection with either the investigation, defense or appeal of, or being a witness in, a Proceeding, or establishing or enforcing a right to indemnification under this Agreement, Section 145 or otherwise; provided, however, that Expenses shall not include any judgments, fines, ERISA excise taxes or penalties or amounts paid in settlement of a Proceeding.
(d) Indemnifiable Event . For purposes of this Agreement, “Indemnifiable Event” means any event or occurrence related to Indemnitee’s service for the Company or any Subsidiary or Affiliate as an Indemnifiable Person (as defined below), or by reason of anything done or not done, or any act or omission, by Indemnitee in any such capacity.
 
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(e) Indemnifiable Person . For the purposes of this Agreement, “Indemnifiable Person” means any person who is or was a director, officer, trustee, manager, member, partner, employee, attorney, consultant, member of an entity’s governing body (whether constituted as a board of directors, board of managers, general partner or otherwise) or other agent or fiduciary of the Company or a Subsidiary or Affiliate of the Company.
(f) Independent Counsel . For purposes of this Agreement, “Independent Counsel” means legal counsel that has not performed services for the Company or Indemnitee in the five years preceding the time in question and that would not, under applicable standards of professional conduct, have a conflict of interest in representing either the Company or Indemnitee.
(g) Independent Director . A member of the Board who is not a party to the Proceeding for which a claim is made under this Agreement
(h) Other Liabilities . For purposes of this Agreement, “Other Liabilities” means any and all liabilities of any type whatsoever (including, but not limited to, judgments, fines, penalties, ERISA (or other benefit plan related) excise taxes or penalties, and amounts paid in settlement and all interest, taxes, assessments and other charges paid or payable in connection with or in respect of any such judgments, fines, ERISA (or other benefit plan related) excise taxes or penalties, or amounts paid in settlement).
(i) Proceeding . For the purposes of this Agreement, “Proceeding” means any threatened, pending, or completed action, suit or other proceeding, whether civil, criminal, administrative, investigative, legislative or any other type whatsoever, preliminary, informal or formal, including any arbitration or other alternative dispute resolution and including any appeal of any of the foregoing.
(j) Subsidiary . For purposes of this Agreement, “Subsidiary” means any entity of which more than 50% of the outstanding voting securities is owned directly or indirectly by the Company.
2. Agreement to Serve . The Indemnitee agrees to serve and/or continue to serve as an Indemnifiable Person in the capacity or capacities in which Indemnitee currently serves the Company as an Indemnifiable Person, and any additional capacity in which Indemnitee may agree to serve, until such time as Indemnitee’s service in a particular capacity shall end according to the terms of an agreement, the Company’s Certificate of Incorporation or Bylaws, governing law, or otherwise. Nothing contained in this Agreement is intended to create any right to continued employment or other form of service for the Company or a Subsidiary or Affiliate of the Company by Indemnitee.
3. Mandatory Indemnification .
(a) Agreement to Indemnify . In the event Indemnitee is a person who was or is a party to or witness in or is threatened to be made a party to or witness in any Proceeding by reason of an Indemnifiable Event, the Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with (including in preparation for) such Proceeding to the fullest extent not prohibited by the provisions of the
 
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Company’s Bylaws and the Delaware General Corporation Law (“ GCL ”), as the same may be amended from time to time (but only to the extent that such amendment permits the Company to provide broader indemnification rights than the Bylaws or the GCL permitted prior to the adoption of such amendment).
(b) Exception for Amounts Covered by Insurance and Other Sources . Notwithstanding the foregoing, the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, ERISA excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee’s behalf) by any directors and officers, or other type, of insurance maintained by the Company.
(c) Company Obligations Primary . The Company hereby acknowledges that Indemnitee may have rights to indemnification for Expenses and Other Liabilities provided by [name of VC or other sponsoring organization (“ Other Indemnitor ”)]. The Company agrees with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor. The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Other Liabilities hereunder.
4. Partial Indemnification . If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Expenses or Other Liabilities but not entitled, however, to indemnification for the total amount of such Expenses or Other Liabilities, the Company shall nevertheless indemnify Indemnitee for such total amount except as to the portion thereof for which indemnification is prohibited by the provisions of the Company’s Bylaws or the GCL. In any review or Proceeding to determine the extent of indemnification, the Company shall bear the burden to establish, by clear and convincing evidence, the lack of a successful resolution of a particular claim, issue or matter and which amounts sought in indemnity are allocable to claims, issues or matters which were not successfully resolved.
5. Liability Insurance . So long as Indemnitee shall continue to serve the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed Proceeding as a result of an Indemnifiable Event, the Company shall use reasonable efforts to maintain in full force and effect for the benefit of Indemnitee as an insured (i) liability insurance issued by one or more reputable insurers and having the policy amount and deductible deemed appropriate by the Board and providing in all respects coverage at least comparable to and in the same amount as that provided to the Chairman of the Board or the Chief Executive Officer of the Company and (ii) any replacement or substitute policies issued by one or more reputable insurers
 
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providing in all respects coverage at least comparable to and in the same amount as that being provided to the Chairman of the Board or the Chief Executive Officer of the Company. The purchase, establishment and maintenance of any such insurance or other arrangements shall not in any way limit or affect the rights and obligations of the Company or of Indemnitee under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement by the Company and Indemnitee shall not in any way limit or affect the rights and obligations of the Company or the other party or parties thereto under any such insurance or other arrangement. In the event of a Change in Control subsequent to the date of this Agreement, or the Company’s becoming insolvent, including being placed into receivership or entering the federal bankruptcy process, the Company shall maintain in force any directors’ and officers’ liability insurance policies then maintained by the Company in providing insurance in respect of Indemnitee, for a period of six years thereafter.
6. Mandatory Advancement of Expenses . If requested by Indemnitee, the Company shall advance prior to the final disposition of the Proceeding all Expenses reasonably incurred by Indemnitee in connection with (including in preparation for) a Proceeding related to an Indemnifiable Event. Indemnitee hereby undertakes to repay such amounts advanced if, and only if and to the extent that, it shall ultimately be determined that Indemnitee is not entitled to be indemnified by the Company under the provisions of this Agreement, the Company’s Bylaws or the GCL, and no additional form of undertaking with respect to such obligation to repay shall be required. The advances to be made hereunder shall be paid by the Company to Indemnitee or directly to a third party designated by Indemnitee within thirty (30) days following delivery of a written request therefor by Indemnitee to the Company. Indemnitee’s undertaking to repay any Expenses advanced to Indemnitee hereunder shall be unsecured and shall not be subject to the accrual or payment of any interest thereon. In the event that Indemnitee’s request for the advancement of expenses shall be accompanied by an affidavit of counsel to Indemnitee to the effect that such counsel has reviewed such Expenses and that such Expenses are reasonable in such counsel’s view, then such expenses shall be deemed reasonable in the absence of clear and convincing evidence to the contrary.
7. Notice and Other Indemnification Procedures .
(a) Notification . Promptly after receipt by Indemnitee of notice of the commencement of or the threat of commencement of any Proceeding, Indemnitee shall, if Indemnitee believes that indemnification or advancement of Expenses with respect thereto may be sought from the Company under this Agreement, notify the Company of the commencement or threat of commencement thereof. However, a failure so to notify the Company promptly following Indemnitee’s receipt of such notice shall not relieve the Company from any liability that it may have to Indemnitee except to the extent that the Company is materially prejudiced in its defense of such Proceeding as a result of such failure.
(b) Insurance and Other Matters . If, at the time of the receipt of a notice of the commencement of a Proceeding pursuant to Section 7(a) above, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the issuers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all reasonable action to cause such
 
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insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such insurance policies.
(c) Assumption of Defense . In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, the fees and expenses of Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense.
(d) Settlement . The Company shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the Company’s written consent; provided, however, that if a Change in Control has occurred subsequent to the date of this Agreement, the Company shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. Neither the Company nor any Subsidiary or Affiliate shall enter into a settlement of any Proceeding that might result in the imposition of any Expense, Other Liability, penalty, limitation or detriment on Indemnitee, whether indemnifiable under this Agreement or otherwise, without Indemnitee’s written consent. Neither the Company nor Indemnitee shall unreasonably withhold consent from any settlement of any Proceeding. The Company shall promptly notify Indemnitee upon the Company’s receipt of an offer to settle, or if the Company makes an offer to settle, any Proceeding, and provide Indemnitee with a reasonable amount of time to consider such settlement, in the case of any such settlement for which the consent of Indemnitee would be required hereunder. The Company shall not, on its own behalf, settle any part of any Proceeding to which Indemnitee is a party with respect to other parties (including the Company) without the written consent of Indemnitee if any portion of the settlement is to be funded from insurance proceeds unless approved by a majority of the Independent Directors, provided that this sentence shall cease to be of any force and effect if it has been determined in accordance with this Agreement that Indemnitee is not entitled to indemnification hereunder with respect to such Proceeding or if the Company’s obligations hereunder to Indemnitee with respect to such Proceeding have been fully discharged.
 
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8. Determination of Right to Indemnification .
(a) Success on the Merits or Otherwise . To the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 3(a) above or in the defense of any claim, issue or matter described therein, the Company shall indemnify Indemnitee against Expenses actually and reasonably incurred in connection therewith.
(b) Indemnification in Other Situations . In the event that Section 8(a) is inapplicable, the Company shall also indemnify Indemnitee if Indemnitee has not failed to meet the applicable standard of conduct for indemnification.
(c) Forum . Indemnitee shall be entitled to select the forum in which determination of whether or not Indemnitee has met the applicable standard of conduct shall be decided, and such election will be made from among the following:
a. Those members of the Board who are Independent Directors even though less than a quorum;
b. A committee of Independent Directors designated by a majority vote of Independent Directors, even though less than a quorum; or
c. Independent Counsel selected by Indemnitee and approved by the Board, which approval may not be unreasonably withheld, which counsel shall make such determination in a written opinion.
If Indemnitee is an officer or a director of the Company at the time that Indemnitee is selecting the forum, then Indemnitee shall not select Independent Counsel as such forum unless there are no Independent Directors or unless the Independent Directors agree to the selection of Independent Counsel as the forum.
The selected forum shall be referred to herein as the “Reviewing Party”. Notwithstanding the foregoing, following any Change in Control subsequent to the date of this Agreement, the Reviewing Party shall be Independent Counsel selected in the manner provided in c. above.
 
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(d) As soon as practicable, and in no event later than thirty (30) days after receipt by the Company of written notice of Indemnitee’s choice of forum pursuant to Section 8(c) above, the Company and Indemnitee shall each submit to the Reviewing Party such information as they believe is appropriate for the Reviewing Party to consider. The Reviewing Party shall arrive at its decision within a reasonable period of time following the receipt of all such information from the Company and Indemnitee, but in no event later than thirty (30) days following the receipt of all such information, provided that the time by which the Reviewing Party must reach a decision may be extended by mutual agreement of the Company and Indemnitee. All Expenses associated with the process set forth in this Section 8(d), including but not limited to the Expenses of the Reviewing Party, shall be paid by the Company.
(e) Delaware Court of Chancery . Notwithstanding a final determination by any Reviewing Party that Indemnitee is not entitled to indemnification with respect to a specific Proceeding, Indemnitee shall have the right to apply to the Court of Chancery, for the purpose of enforcing Indemnitee’s right to indemnification pursuant to this Agreement.
(f) Expenses . The Company shall indemnify Indemnitee against all Expenses incurred by Indemnitee in connection with any hearing or Proceeding under this Section 8 involving Indemnitee and against all Expenses and Other Liabilities incurred by Indemnitee in connection with any other Proceeding between the Company and Indemnitee involving the interpretation or enforcement of the rights of Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims of Indemnitee in any such Proceeding was frivolous or made in bad faith.
(g) Determination of “Good Faith” . For purposes of any determination of whether Indemnitee acted in “good faith” Indemnitee shall be deemed to have acted in good faith if in taking or failing to take the action in question Indemnitee relied on the records or books of account of the Company or a Subsidiary or Affiliate, including financial statements, or on information, opinions, reports or statements provided to Indemnitee by the officers or other employees of the Company or a Subsidiary or Affiliate in the course of their duties, or on the advice of legal counsel for the Company or a Subsidiary or Affiliate, or on information or records given or reports made to the Company or a Subsidiary or Affiliate by an independent certified public accountant or by an appraiser or other expert selected by the Company or a Subsidiary or Affiliate, or by any other person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company or a Subsidiary or Affiliate. In connection with any determination as to whether Indemnitee is entitled to be indemnified hereunder, or to advancement of expenses, the Reviewing Party or court shall presume that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification or advancement of Expenses, as the case may be, and the burden of proof shall be on the Company to establish, by clear and convincing evidence, that Indemnitee is not so entitled. The provisions of this Section 8(g) 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. In addition, the knowledge and/or actions, or failures to act, of any other person serving the Company or a Subsidiary or Affiliate as an Indemnifiable Person shall not be imputed to Indemnitee for purposes of determining the right to indemnification hereunder.
 
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9. Exceptions . Any other provision herein to the contrary notwithstanding,
(a) Claims Initiated by Indemnitee . The Company shall not be obligated pursuant to the terms of this Agreement to indemnify or advance Expenses to Indemnitee with respect to Proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except (1) with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement, any other statute or law, as permitted under Section 145, or otherwise, (2) where the Board has consented to the initiation of such Proceeding, or (3) with respect to Proceedings brought to discharge Indemnitee’s fiduciary responsibilities, whether under ERISA or otherwise, but such indemnification or advancement of Expenses may be provided by the Company in specific cases if the Board finds it to be appropriate; or
(b) Actions Based on Federal Statutes Regarding Profit Recovery and Return of Bonus Payments . The Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee on account of (i) any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of l934 and amendments thereto or similar provisions of any federal, state or local statutory law, or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (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); or
(c) Unlawful Indemnification . The Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee for Other Liabilities if such indemnification is prohibited by law as determined by a court of competent jurisdiction in a final adjudication not subject to further appeal.
10. Non-exclusivity . The provisions for indemnification and advancement of Expenses set forth in this Agreement shall not be deemed exclusive of any other rights which Indemnitee may have under any provision of law, the Company’s Certificate of Incorporation or Bylaws, the vote of the Company’s stockholders or disinterested directors, other agreements, or otherwise, both as to acts or omissions in his or her official capacity and to acts or omissions in another capacity while serving the Company or a Subsidiary or Affiliate as an Indemnifiable Person and Indemnitee’s rights hereunder shall continue after Indemnitee has ceased serving the Company or a Subsidiary or Affiliate as an Indemnifiable Person and shall inure to the benefit of the heirs, executors and administrators of Indemnitee.
11. Severability . 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 the Agreement (including, without limitation, all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves 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
 
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Agreement (including, without limitation, all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
12. Supersession, Modification and Waiver . This Agreement supersedes any prior indemnification agreement between the Indemnitee and the Company, its Subsidiaries or its Affiliates. If the Company and Indemnitee have previously entered into an indemnification agreement providing for the indemnification of Indemnitee by the Company, parties entry into this Agreement shall be deemed to amend and restate such prior agreement to read in its entirety as, and be superseded by, this Agreement. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar) and except as expressly provided herein, no such waiver shall constitute a continuing waiver.
13. Successors and Assigns . The terms of this Agreement shall bind, and shall inure to the benefit of, the successors and assigns of the parties hereto.
14. Notice . All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and a receipt is provided by the party to whom such communication is delivered, (ii) if mailed by certified or registered mail with postage prepaid, return receipt requested, on the signing by the recipient of an acknowledgement of receipt form accompanying delivery through the U.S. mail, (iii) personal service by a process server, or (iv) delivery to the recipient’s address by overnight delivery (e.g., FedEx, UPS or DHL) or other commercial delivery service. Addresses for notice to either party are as shown on the signature page of this Agreement, or as subsequently modified by written notice complying with the provisions of this Section 14. Delivery of communications to the Company with respect to this Agreement shall be sent to the attention of the Company’s General Counsel.
15. No Presumptions . For purposes of this Agreement, the termination of any Proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law or otherwise. In addition, neither the failure of the Company or a Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Company or a Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of Proceedings by Indemnitee to secure a judicial determination by exercising Indemnitee’s rights under Section 8(e) of this Agreement shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee has failed to meet any particular standard of conduct or did not have any particular belief or is not entitled to indemnification under applicable law or otherwise.
 
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16. Survival of Rights . The rights conferred on Indemnitee by this Agreement shall continue after Indemnitee has ceased to serve the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person and shall inure to the benefit of Indemnitee’s heirs, executors and administrators.
17. Subrogation and Contribution . (a) In the event of 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 documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights.
To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by or on behalf of Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, 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 event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
18. Specific Performance, Etc. The parties recognize that if any provision of this Agreement is violated by the Company, Indemnitee may be without an adequate remedy at law. Accordingly, in the event of any such violation, Indemnitee shall be entitled, if Indemnitee so elects, to institute Proceedings, either in law or at equity, to obtain damages, to enforce specific performance, to enjoin such violation, or to obtain any relief or any combination of the foregoing as Indemnitee may elect to pursue.
19. Counterparts . This Agreement may be executed 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.
20. Headings . The headings of the sections and 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 or interpretation thereof.
21. Governing Law . This Agreement shall be governed exclusively by and construed according to the laws of the State of Delaware, as applied to contracts between Delaware residents entered into and to be performed entirely with Delaware.
22. Consent to Jurisdiction . The Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection with any Proceeding which arises out of or relates to this Agreement.
The parties hereto have entered into this Indemnity Agreement effective as of the
 
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date first above written.

	 	By:	 	 	
			
	 	Its:	 	 	
		
	 	INDEMNITEE:	

		
Address:	 	 	

 
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Exhibit 10.02
WOODMAN LABS, INC.
2010 EQUITY INCENTIVE PLAN
As Adopted on August 27, 2010, and
Amended on December 19, 2010, February 18, 2011, June 29, 2011, December 22, 2011, February 3, 2012, October 30, 2013,
and January 29, 2014
1. PURPOSE . The purpose of this Plan is to provide incentives to attract, retain and motivate eligible persons whose present and potential contributions are important to the success of the Company, its Parent and Subsidiaries by offering eligible persons an opportunity to participate in the Company’s future performance through the grant of Awards covering Shares. Capitalized terms not defined in the text are defined in Section 14 hereof. Although this Plan is intended to be a written compensatory benefit plan within the meaning of Rule 701, grants may be made pursuant to this Plan that do not qualify for exemption under Rule 701 or Section 25102(o). Any requirement of this Plan that is required in law only because of Section 25102(o) need not apply if the Committee so provides.
2. SHARES SUBJECT TO THE PLAN .
2.1 Number of Shares Available . Subject to Sections 2.2 and 11 hereof, the total number of Shares reserved and available for grant and issuance pursuant to this Plan will be 33,420,000 Shares. Subject to Sections 2.2, 4.10 and 11 hereof, Shares subject to Awards that are cancelled, forfeited, settled in cash or that expire by their terms will again be available for grant and issuance in connection with other Awards. At all times the Company will reserve and keep available a sufficient number of Shares as will be required to satisfy the requirements of all Awards granted and outstanding under this Plan.
2.2 Adjustment of Shares . In the event that the number of outstanding shares of the Company’s Common Stock is changed by a stock dividend, recapitalization, stock split, reverse stock split, subdivision, combination, reclassification or similar change in the capital structure of the Company without consideration, then (a) the number of Shares reserved for issuance under this Plan, (b) the Exercise Prices of and number of Shares subject to outstanding Options and SARS, and (c) the Purchase Prices of and/or number of Shares subject to other outstanding Awards will be proportionately adjusted, subject to any required action by the Board or the shareholders of the Company and compliance with applicable securities laws; provide d , however , that fractions of a Share will not be issued but will either be paid in cash at the Fair Market Value of such fraction of a Share or will be rounded down to the nearest whole Share, as determined by the Committee.
3. PLAN FOR BENEFIT OF SERVICE PROVIDERS
3.1 Eligibility . The Committee will have the authority to select persons to receive Awards. ISOs (as defined in Section 4 hereof) may be granted only to employees (including officers and directors who are also employees) of the Company or of a Parent or Subsidiary of the Company. NQSOs (as defined in Section 4 hereof) and all other types of Awards may be granted to employees, officers, directors and consultants of the Company or any Parent or Subsidiary of the Company; provided such consultants render bona fide services not in connection with the offer and sale of securities in a capital-raising transaction when Rule 701 is to apply to the Award granted for such services. A person may be granted more than one Award under this Plan.
3.2 No Obligation to Employ . Nothing in this Plan or any Award granted under this Plan will confer or be deemed to confer on any Participant any right to continue in the employ of, or to continue any other relationship with, the Company or any Parent or Subsidiary or limit in any way the

right of the Company or any Parent or Subsidiary to terminate Participant’s employment or other relationship at any time, with or without Cause.
4. OPTIONS . The Committee may grant Options to eligible persons described in Section 3 hereof and will determine whether such Options will be Incentive Stock Options within the meaning of the Code (“ ISOs ”) or Nonqualified Stock Options (“ NQSOs ”), the number of Shares subject to the Option, the Exercise Price of the Option, the period during which the Option may be exercised, and all other terms and conditions of the Option, subject to the following.
4.1 Form of Option Grant . Each Option granted under this Plan will be evidenced by an Award Agreement which will expressly identify the Option as an ISO or an NQSO (“ Stock Option Agreement ”), and will be in such form and contain such provisions (which need not be the same for each Participant) as the Committee may from time to time approve, and which will comply with and be subject to the terms and conditions of this Plan.
4.2 Date of Grant . The date of grant of an Option will be the date on which the Committee makes the determination to grant such Option, unless a later date is otherwise specified by the Committee. The Stock Option Agreement and a copy of this Plan will be delivered to the Participant within a reasonable time after the granting of the Option.
4.3 Exercise Period . Options may be exercisable immediately but subject to repurchase pursuant to Section 10 hereof or may be exercisable within the times or upon the events determined by the Committee as set forth in the Stock Option Agreement governing such Option; provided , however , that (a) no Option will be exercisable after the expiration of ten (10) years from the date the Option is granted; and (b) no ISO granted to a person who directly or by attribution owns more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any Parent or Subsidiary (“ Ten Percent Shareholder ”) will be exercisable after the expiration of five (5) years from the date the ISO is granted. The Committee also may provide for Options to become exercisable at one time or from time to time, periodically or otherwise, in such number of Shares or percentage of Shares as the Committee determines.
4.4 Exercise Price . The Exercise Price of an Option will be determined by the Committee when the Option is granted and shall not be less than the Fair Market Value per Share unless expressly determined in writing by the Committee on the Option’s date of grant; provided that the Exercise Price of an ISO granted to a Ten Percent Shareholder will not be less than one hundred ten percent (110%) of the Fair Market Value of the Shares on the date of grant. Payment for the Shares purchased must be made in accordance with Section 8 hereof.
4.5 Method of Exercise . Options may be exercised only by delivery to the Company of a written stock option exercise agreement (the “ Exercise Agreement ”) in a form approved by the Committee (which need not be the same for each Participant). The Exercise Agreement will state (a) the number of Shares being purchased, (b) the restrictions imposed on the Shares purchased under such Exercise Agreement, if any, and (c) such representations and agreements regarding Participant’s investment intent and access to information and other matters, if any, as may be required or desirable by the Company to comply with applicable securities laws. Each Participant’s Exercise Agreement may be modified by (i) agreement of Participant and the Company or (ii) substitution by the Company, upon becoming a public company, in order to add the payment terms set forth in Section 8.1 that apply to a public company and such other terms as shall be necessary or advisable in order to exercise a public company option. Upon exercise of an Option, Participant shall execute and deliver to the Company the Exercise Agreement then in effect, together with payment in full of the Exercise Price for the number of Shares being purchased and payment of any applicable taxes.
 
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4.6 Termination . Subject to earlier termination pursuant to Sections 11 and 13.1 hereof and notwithstanding the exercise periods set forth in the Stock Option Agreement, exercise of an Option will always be subject to the following terms and conditions.
4.6.1 Other than Death or Disability or for Cause . If the Participant is Terminated for any reason other than death, Disability or for Cause, then the Participant may exercise such Participant’s Options only to the extent that such Options are exercisable as to Vested Shares upon the Termination Date or as otherwise determined by the Committee. Such Options must be exercised by the Participant, if at all, as to all or some of the Vested Shares calculated as of the Termination Date or such other date determined by the Committee, within three (3) months after the Termination Date (or within such shorter time period, not less than thirty (30) days, or within such longer time period, not exceeding five (5) years, after the Termination Date as may be determined by the Committee, with any exercise beyond three (3) months after the Termination Date deemed to be an NQSO) but in any event, no later than the expiration date of the Options.
4.6.2 Death or Disability . If the Participant is Terminated because of Participant’s death or Disability (or the Participant dies within three (3) months after a Termination other than for Cause), then Participant’s Options may be exercised only to the extent that such Options are exercisable as to Vested Shares by Participant on the Termination Date or as otherwise determined by the Committee. Such options must be exercised by Participant (or Participant’s legal representative or authorized assignee), if at all, as to all or some of the Vested Shares calculated as of the Termination Date or such other date determined by the Committee, within twelve (12) months after the Termination Date (or within such shorter time period, not less than six (6) months, or within such longer time period, not exceeding five (5) years, after the Termination Date as may be determined by the Committee, with any exercise beyond (a) three (3) months after the Termination Date when the Termination is for any reason other than the Participant’s death or disability, within the meaning of Section 22(e)(3) of the Code, or (b) twelve (12) months after the Termination Date when the Termination is for Participant’s disability, within the meaning of Section 22(e)(3) of the Code, deemed to be an NQSO) but in any event no later than the expiration date of the Options.
4.6.3 For Cause . If the Participant is terminated for Cause, the Participant may exercise such Participant’s Options, but not to an extent greater than such Options are exercisable as to Vested Shares upon the Termination Date and Participant’s Options shall expire on such Participant’s Termination Date, or at such later time and on such conditions as are determined by the Committee.
4.7 Limitations on Exercise . The Committee may specify a reasonable minimum number of Shares that may be purchased on any exercise of an Option, provided that such minimum number will not prevent Participant from exercising the Option for the full number of Shares for which it is then exercisable.
4.8 Limitations on ISOs . The aggregate Fair Market Value (determined as of the date of grant) of Shares with respect to which ISOs are exercisable for the first time by a Participant during any calendar year (under this Plan or under any other incentive stock option plan of the Company or any Parent or Subsidiary of the Company) will not exceed One Hundred Thousand Dollars ($100,000). If the Fair Market Value of Shares on the date of grant with respect to which ISOs are exercisable for the first time by a Participant during any calendar year exceeds One Hundred Thousand Dollars ($100,000), then the Options for the first One Hundred Thousand Dollars ($100,000) worth of Shares to become exercisable in such calendar year will be ISOs and the Options for the amount in excess of One Hundred Thousand Dollars ($100,000) that become exercisable in that calendar year will be NQSOs. In the event that the Code or the regulations promulgated thereunder are amended after the Effective Date (as defined in Section 13.1 hereof) to provide for a different limit on the Fair Market Value of Shares permitted to be
 
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subject to ISOs, then such different limit will be automatically incorporated herein and will apply to any Options granted after the effective date of such amendment.
4.9 Modification, Extension or Renewal . The Committee may modify, extend or renew outstanding Options and authorize the grant of new Options in substitution therefor, provided that any such action may not, without the written consent of a Participant, impair any of such Participant’s rights under any Option previously granted. Any outstanding ISO that is modified, extended, renewed or otherwise altered will be treated in accordance with Section 424(h) of the Code. Subject to Section 4.10 hereof, the Committee may reduce the Exercise Price of outstanding Options without the consent of Participants by a written notice to them; provided , however , that the Exercise Price may not be reduced below the minimum Exercise Price that would be permitted under Section 4.4 hereof for Options granted on the date the action is taken to reduce the Exercise Price .
4.10 No Disqualification . Notwithstanding any other provision in this Plan, no term of this Plan relating to ISOs will be interpreted, amended or altered, nor will any discretion or authority granted under this Plan be exercised, so as to disqualify this Plan under Section 422 of the Code or, without the consent of the Participant, to disqualify any Participant’s ISO under Section 422 of the Code. In no event shall the total number of Shares issued (counting each reissuance of a Share that was previously issued and then forfeited or repurchased by the Company as a separate issuance) under the Plan upon exercise of ISOs exceed 334,200,000 Shares (adjusted in proportion to any adjustments under Section 2.2 hereof) over the term of the Plan.
5. RESTRICTED STOCK . A Restricted Stock Award is an offer by the Company to sell to an eligible person Shares that are subject to certain specified restrictions. The Committee will determine to whom an offer will be made, the number of Shares the person may purchase, the Purchase Price, the restrictions to which the Shares will be subject, and all other terms and conditions of the Restricted Stock Award, subject to the following terms and conditions.
5.1 Form of Restricted Stock Award . All purchases under a Restricted Stock Award made pursuant to this Plan will be evidenced by an Award Agreement (“ Restricted Stock Purchase Agreement ”) that will be in such form (which need not be the same for each Participant) as the Committee will from time to time approve, and will comply with and be subject to the terms and conditions of this Plan. The Restricted Stock Award will be accepted by the Participant’s execution and delivery of the Restricted Stock Purchase Agreement and full payment for the Shares to the Company within thirty (30) days from the date the Restricted Stock Purchase Agreement is delivered to the person. If such person does not execute and deliver the Restricted Stock Purchase Agreement along with full payment for the Shares to the Company within such thirty (30) days, then the offer will terminate, unless otherwise determined by the Committee.
5.2 Purchase Price . The Purchase Price of Shares sold pursuant to a Restricted Stock Award will be determined by the Committee on the date the Restricted Stock Award is granted or at the time the purchase is consummated. Payment of the Purchase Price must be made in accordance with Section 8 hereof.
5.3 Restrictions . Restricted Stock Awards may be subject to the restrictions set forth in Sections 9 and 10 hereof or, with respect to a Restricted Stock Award to which Section 25102(o) is to apply, such other restrictions not inconsistent with Section 25102(o).
6. RESTRICTED STOCK UNITS .
6.1 Awards of Restricted Stock Units . A Restricted Stock Unit (“ RSU ”) is an Award covering a number of Shares that may be settled in cash, or by issuance of those Shares at a date in
 
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the future. No Purchase Price shall apply to an RSU settled in Shares. All grants of Restricted Stock Units will be evidenced by an Award Agreement that will be in such form (which need not be the same for each Participant) as the Committee will from time to time approve, and will comply with and be subject to the terms and conditions of this Plan.
6.2 Form and Timing of Settlement . To the extent permissible under applicable law, the Committee may permit a Participant to defer payment under a RSU to a date or dates after the RSU is earned, provided that the terms of the RSU and any deferral satisfy the requirements of Section 409A of the Code (or any successor) and any regulations or rulings promulgated thereunder. Payment may be made in the form of cash or whole Shares or a combination thereof, all as the Committee determines.
7. STOCK APPRECIATION RIGHTS .
7.1 Awards of SARs . Stock Appreciation Rights (“ SARs ”) may be settled in cash, or Shares (which may consist of Restricted Stock or RSUs), having a value equal to the value determined by multiplying the difference between the Fair Market Value on the date of exercise over the Exercise Price and the number of Shares with respect to which the SAR is being settled. All grants of SARs made pursuant to this Plan will be evidenced by an Award Agreement that will be in such form (which need not be the same for each Participant) as the Committee will from time to time approve, and will comply with and be subject to the terms and conditions of this Plan.
7.2 Exercise Period and Expiration Date . A SAR will be exercisable within the times or upon the occurrence of events determined by the Committee and set forth in the Award Agreement governing such SAR. The Award Agreement shall set forth the Expiration Date; provided that no SAR will be exercisable after the expiration of ten years from the date the SAR is granted.
7.3 Exercise Price . The Committee will determine the Exercise Price of the SAR when the SAR is granted, and which may not be less than the Fair Market Value on the date of grant and may be settled in cash or in Shares.
7.4 Termination . Subject to earlier termination pursuant to Sections 11 and 13.1 hereof and notwithstanding the exercise periods set forth in the Award Agreement, exercise of SARs will always be subject to the following terms and conditions.
7.4.1 Other than Death or Disability or for Cause . If the Participant is Terminated for any reason other than death, Disability or for Cause, then the Participant may exercise such Participant’s SARs only to the extent that such SARs are exercisable as to vested Shares upon the Termination Date or as otherwise determined by the Committee. SARs must be exercised by the Participant, if at all, as to all or some of the vested Shares calculated as of the Termination Date or such other date determined by the Committee, within three (3) months after the Termination Date (or within such shorter time period, not less than thirty (30) days, or within such longer time period, not exceeding five (5) years, after the Termination Date as may be determined by the Committee) but in any event, no later than the expiration date of the SARs.
7.4.2 Death or Disability . If the Participant is Terminated because of Participant’s death or Disability (or the Participant dies within three (3) months after a Termination other than for Cause), then Participant’s SARs may be exercised only to the extent that such SARs are exercisable as to vested Shares by Participant on the Termination Date or as otherwise determined by the Committee. Such SARs must be exercised by Participant (or Participant’s legal representative or authorized assignee), if at all, as to all or some of the vested Shares calculated as of the Termination Date or such other date determined by the Committee, within twelve (12) months after the Termination Date (or within such
 
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shorter time period, not less than six (6) months, or within such longer time period, not exceeding five (5) years, after the Termination Date as may be determined by the Committee) but in any event no later than the expiration date of the SARs.
7.4.3 For Cause . If the Participant is terminated for Cause, the Participant may exercise such Participant’s SARs, but not to an extent greater than such SARs are exercisable as to vested Shares upon the Termination Date and Participant’s SARs shall expire on such Participant’s Termination Date, or at such later time and on such conditions as are determined by the Committee.
8. PAYMENT FOR PURCHASES AND EXERCISES .
8.1 Payment in General . Payment for Shares acquired pursuant to this Plan may be made in cash (by check) or, where expressly approved for the Participant by the Committee and where permitted by law:
(a) by cancellation of indebtedness of the Company owed to the Participant;
(b) by surrender of shares of the Company that are clear of all liens, claims, encumbrances or security interests and: (i) for which the Company has received “full payment of the purchase price” within the meaning of SEC Rule 144 (and, if such shares were purchased from the Company by use of a promissory note, such note has been fully paid with respect to such shares) or (ii) that were obtained by Participant in the public market;
(c) by tender of a full recourse promissory note having such terms as may be approved by the Committee and bearing interest at a rate sufficient to avoid imputation of income under Sections 483 and 1274 of the Code; provided , however , that Participants who are not employees or directors of the Company will not be entitled to purchase Shares with a promissory note unless the note is adequately secured by collateral other than the Shares;
(d) by waiver of compensation due or accrued to the Participant from the Company for services rendered;
(e) by participating in a formal cashless exercise program implemented by the Committee in connection with the Plan;
(f) subject to compliance with applicable law and solely in the discretion of the Committee, by exercising as set forth below, provided that a public market for the Company’s Common Stock exists:
(i) through a “same day sale” commitment from the Participant and a broker-dealer whereby the Participant irrevocably elects to exercise the Award and to sell a portion of the Shares so purchased sufficient to pay the total Exercise Price or Purchase Price, and whereby the broker-dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price or Purchase Price directly to the Company; or
(ii) through a “margin” commitment from the Participant and a broker-dealer whereby the Participant irrevocably elects to exercise the Award and to pledge the Shares so purchased to the broker-dealer in a margin account as security for a loan from the broker-dealer in the amount of the total Exercise Price or Purchase Price, and whereby the broker-dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price or Purchase Price directly to the Company; or
 
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(g) by any combination of the foregoing or any other method of payment approved by the Committee.
8.2 Withholding Taxes .
8.2.1 Withholding Generally . Whenever Shares are to be issued in satisfaction of Awards granted under this Plan, the Company may require the Participant to remit to the Company an amount sufficient to satisfy applicable tax withholding requirements prior to the delivery of any certificate or certificates for such Shares. Whenever, under this Plan, payments in satisfaction of Awards are to be made in cash by the Company, such payment will be net of an amount sufficient to satisfy applicable tax withholding requirements.
8.2.2 Stock Withholding . When, under applicable tax laws, a Participant incurs tax liability in connection with the exercise or vesting of any Award that is subject to tax withholding and the Participant is obligated to pay the Company the amount required to be withheld, the Committee may in its sole discretion allow the Participant to satisfy the minimum tax withholding obligation by electing to have the Company withhold from the Shares to be issued up to the minimum number of Shares having a Fair Market Value on the date that the amount of tax to be withheld is to be determined that is not more than the minimum amount to be withheld; but in no event will the Company withhold Shares if such withholding would result in adverse accounting consequences to the Company. Any elections by a Participant to have Shares withheld for this purpose will be made in accordance with the requirements established by the Committee for such elections and be in writing in a form acceptable to the Committee.
9. RESTRICTIONS ON AWARDS .
9.1 Transferability . Except as permitted by the Committee, Awards granted under this Plan, and any interest therein, will not be transferable or assignable by Participant, other than by will or by the laws of descent and distribution, and, with respect to NQSOs, by instrument to an inter vivos or testamentary trust in which the NQSOs are to be passed to beneficiaries upon the death of the trustor (settlor), or by gift to “family member” as that term is defined in Rule 701, and may not be made subject to execution, attachment or similar process. During the lifetime of the Participant an Award will be exercisable only by the Participant or Participant’s legal representative and any elections with respect to an Award may be made only by the Participant or Participant’s legal representative. The terms of an Option shall be binding upon the executor, administrator, successors and assigns of the Participant who is a party thereto.
9.2 Securities Law and Other Regulatory Compliance . Although this Plan is intended to be a written compensatory benefit plan within the meaning of Rule 701 promulgated under the Securities Act, grants may be made pursuant to this Plan that do not qualify for exemption under Rule 701 or Section 25102(o). Any requirement of this Plan which is required in law only because of Section 25102(o) need not apply with respect to a particular Award to which Section 25102(o) will not apply. An Award will not be effective unless such Award is in compliance with all applicable federal and state securities laws, rules and regulations of any governmental body, and the requirements of any stock exchange or automated quotation system upon which the Shares may then be listed or quoted, as they are in effect on the date of grant of the Award and also on the date of exercise or other issuance. Notwithstanding any other provision in this Plan, the Company will have no obligation to issue or deliver certificates for Shares under this Plan prior to (a) obtaining any approvals from governmental agencies that the Company determines are necessary or advisable, and/or (b) compliance with any exemption, completion of any registration or other qualification of such Shares under any state or federal law or ruling of any governmental body that the Company determines to be necessary or advisable. The Company will be under no obligation to register the Shares with the SEC or to effect compliance with the exemption, registration,
 
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qualification or listing requirements of any state securities laws, stock exchange or automated quotation system, and the Company will have no liability for any inability or failure so do.
9.3 Exchange and Buyout of Awards . The Committee may, at any time or from time to time, authorize the Company, with the consent of the respective Participants, to issue new Awards in exchange for the surrender and cancellation of any or all outstanding Awards. The Committee may at any time buy from a Participant an Award previously granted with payment in cash, Shares (including Restricted Stock) or other consideration, based on such terms and conditions as the Committee and the Participant may agree.
10. RESTRICTIONS ON SHARES .
10.1 Privileges of Stock Ownership . No Participant will have any of the rights of a shareholder with respect to any Shares until such Shares are issued to the Participant. After Shares are issued to the Participant, the Participant will be a shareholder and have all the rights of a shareholder with respect to such Shares, including the right to vote and receive all dividends or other distributions made or paid with respect to such Shares; provided , that if such Shares are Restricted Stock, then any new, additional or different securities the Participant may become entitled to receive with respect to such Shares by virtue of a stock dividend, stock split or any other change in the corporate or capital structure of the Company will be subject to the same restrictions as the Restricted Stock. The Participant will have no right to retain such stock dividends or stock distributions with respect to Unvested Shares that are repurchased as described in this Section 10.
10.2 Rights of First Refusal and Repurchase . At the discretion of the Committee, the Company may reserve to itself and/or its assignee(s) in the Award Agreement (a) a right of first refusal to purchase all Shares that a Participant (or a subsequent transferee) may propose to transfer to a third party, provided that such right of first refusal terminates upon the Company’s initial public offering of Common Stock pursuant to an effective registration statement filed under the Securities Act and (b) a right to repurchase Unvested Shares held by a Participant for cash and/or cancellation of purchase money indebtedness owed to the Company by the Participant following such Participant’s Termination at any time.
10.3 Escrow; Pledge of Shares To enforce any restrictions on a Participant’s Shares, the Committee may require the Participant to deposit all certificates representing Shares, together with stock powers or other instruments of transfer approved by the Committee, appropriately endorsed in blank, with the Company or an agent designated by the Company to hold in escrow until such restrictions have lapsed or terminated. The Committee may cause a legend or legends referencing such restrictions to be placed on the certificate. Any Participant who is permitted to execute a promissory note as partial or full consideration for the purchase of Shares under this Plan will be required to pledge and deposit with the Company all or part of the Shares so purchased as collateral to secure the payment of Participant’s obligation to the Company under the promissory note; provided , however , that the Committee may require or accept other or additional forms of collateral to secure the payment of such obligation and, in any event, the Company will have full recourse against the Participant under the promissory note notwithstanding any pledge of the Participant’s Shares or other collateral. In connection with any pledge of the Shares, Participant will be required to execute and deliver a written pledge agreement in such form as the Committee will from time to time approve. The Shares purchased with the promissory note may be released from the pledge on a pro rata basis as the promissory note is paid.
10.4 Securities Law Restrictions . All certificates for Shares or other securities delivered under this Plan will be subject to such stock transfer orders, legends and other restrictions as the Committee may deem necessary or advisable, including restrictions under any applicable federal, state or
 
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foreign securities law, or any rules, regulations and other requirements of the SEC or any stock exchange or automated quotation system upon which the Shares may be listed or quoted.
11. CORPORATE TRANSACTIONS .
11.1 Assumption or Replacement of Awards by Successor or Acquiring Entity . If an Acquisition or Other Combination shall occur, then any or all outstanding Awards may be assumed, converted or replaced by the successor or acquiring entity (if any) of such Acquisition or Other Combination (or by any of its Parents, if any), which assumption, conversion or replacement will be binding on all Participants. In the alternative, any successor or acquiring entity in such Acquisition or Other Combination (or any of its Parents, if any) may substitute equivalent awards for outstanding Awards or provide substantially similar consideration to Participants in respect of their outstanding Awards as was provided to shareholders of the Company in such Acquisition or Other Combination after taking into account the existing provisions of the outstanding Awards (except that the exercise price and the number and nature of shares issuable upon exercise of any such option or stock appreciation right, or any award that is subject to Section 409A of the Code, will be adjusted appropriately pursuant to Section 424(a) of the Code). Any successor or acquiring entity in such Acquisition or Other Combination (or any of its Parents, if any) may also substitute by issuing, in place of any Award of outstanding Shares of the Company held by a Participant, substantially similar shares of stock or other property subject to repurchase restrictions and other provisions no less favorable to such Participant than those that applied to such outstanding Shares immediately prior to such Acquisition or Other Combination.
11.2 Awards Not Assumed or Replaced in an Acquisition . If, in the event of an Acquisition, neither the successor or acquiring entity (if any) nor any Parent (if any) of such successor or acquiring entity assumes, converts, replaces or substitutes outstanding Awards as provided above in Section 11.1, then notwithstanding any other provision in this Plan to the contrary, and unless otherwise approved by the Committee or otherwise required by the terms of any Award Agreement or any separate written agreement governing such Award that has been approved by the Board, each such Award that has not already terminated in accordance with the Plan or the applicable Award Agreement shall terminate, without accelerating vesting, immediately prior to the consummation of such Acquisition (or if such Acquisition is an Acquisition by Sale of Assets, immediately prior to the Company’s distribution of any funds or assets to the Company’s shareholders following such Acquisition by Sale of Assets) at such times and upon such conditions as the Committee may determine.
11.3 Assumption of Awards by the Company . The Company, from time to time, also may substitute or assume outstanding awards granted by another entity, whether in connection with an acquisition of such other entity or otherwise, by either (a) granting an Award under this Plan in substitution of such other entity’s award or (b) assuming and/or converting such award as if it had been granted under this Plan if the terms of such assumed award could be applied to an Award granted under this Plan. Such substitution or assumption will be permissible if the holder of the substituted or assumed award would have been eligible to be granted an Award under this Plan if the other entity had applied the rules of this Plan to such grant. In the event the Company assumes an award granted by another entity, the terms and conditions of such award will remain unchanged (except that the exercise price and the number and nature of shares issuable upon exercise of any such option or stock appreciation right, or any award that is subject to Section 409A of the Code, will be adjusted appropriately pursuant to Section 424(a) of the Code). In the event the Company elects to grant a new Option or SAR rather than assuming an existing option or stock appreciation right, such new Option or SAR may be granted with a similarly adjusted Exercise Price.
12. ADMINISTRATION .
 
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12.1 Committee Authority . This Plan will be administered by the Committee or the Board if no Committee is created by the Board. Subject to the general purposes, terms and conditions of this Plan, and to the direction of the Board, the Committee will have full power to implement and carry out this Plan. Without limitation, the Committee will have the authority to:
(a) construe and interpret this Plan, any Award Agreement and any other agreement or document executed pursuant to this Plan;
(b) prescribe, amend, expand, modify and rescind or terminate rules and regulations relating to this Plan;
(c) approve persons to receive Awards;
(d) determine the form and terms of Awards;
(e) determine the number of Shares or other consideration subject to Awards granted under this Plan;
(f) determine whether Awards will be granted singly, in combination with, in tandem with, in replacement of, or as alternatives to, other Awards under this Plan or awards under any other incentive or compensation plan of the Company or any Parent or Subsidiary of the Company;
(g) grant waivers of any conditions of this Plan or any Award;
(h) determine the terms of vesting, exercisability and payment of Awards to be granted pursuant to this Plan;
(i) correct any defect, supply any omission, or reconcile any inconsistency in this Plan, any Award, any Award Agreement, any Exercise Agreement or any Restricted Stock Purchase Agreement;
(j) determine whether an Award has been earned;
(k) extend the vesting period beyond a Participant’s Termination Date; and
(l) make all other determinations necessary or advisable in connection with the administration of this Plan.
12.2 Committee Composition and Discretion . The Board may delegate full administrative authority over the Plan and Awards to a Committee consisting of at least two members of the Board (or such greater number as may then be required by applicable law). Unless in contravention of any express terms of this Plan or Award, any determination made by the Committee with respect to any Award will be made in its sole discretion either (a) at the time of grant of the Award, or (b) subject to Section 4.9 hereof, at any later time. Any such determination will be final and binding on the Company and on all persons having an interest in any Award under this Plan. To the extent permitted by applicable law, the Committee may delegate to one or more officers of the Company the authority to grant an Award under this Plan, provided that each such officer is a member of the Board.
12.3 Nonexclusivity of the Plan . Neither the adoption of this Plan by the Board, the submission of this Plan to the shareholders of the Company for approval, nor any provision of this Plan will be construed as creating any limitations on the power of the Board to adopt such additional compensation arrangements as it may deem desirable, including, without limitation, the granting of stock options and other equity awards otherwise than under this Plan, and such arrangements may be either generally applicable or applicable only in specific cases.
 
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12.4 Governing Law . This Plan and all agreements hereunder shall be governed by and construed in accordance with the laws of the State of California, without giving effect to that body of laws pertaining to conflict of laws.
13. EFFECTIVENESS, AMENDMENT AND TERMINATION OF THE PLAN .
13.1 Adoption and Shareholder Approval . This Plan will become effective on the date that it is adopted by the Board (the “ Effective Date ”). This Plan will be approved by the shareholders of the Company (excluding Shares issued pursuant to this Plan), consistent with applicable laws, within twelve (12) months before or after the Effective Date. Upon the Effective Date, the Board may grant Awards pursuant to this Plan; provided , however , that: (a) no Option or SAR may be exercised prior to initial shareholder approval of this Plan; (b) no Option or SAR granted pursuant to an increase in the number of Shares approved by the Board shall be exercised prior to the time such increase has been approved by the shareholders of the Company; (c) in the event that initial shareholder approval is not obtained within the time period provided herein, all Awards for which only the exemption from California’s securities qualification requirements provided by Section 25102(o) can apply shall be canceled, any Shares issued pursuant to any such Award shall be canceled and any purchase of such Shares issued hereunder shall be rescinded; and (d) Awards (to which only the exemption from California’s securities qualification requirements provided by Section 25102(o) can apply) granted pursuant to an increase in the number of Shares approved by the Board which increase is not approved by shareholders within the time then required under Section 25102(o) shall be canceled, any Shares issued pursuant to any such Awards shall be canceled, and any purchase of Shares subject to any such Award shall be rescinded.
13.2 Term of Plan . Unless earlier terminated as provided herein, this Plan will terminate ten (10) years from the Effective Date or, if earlier, ten (10) years from the date of shareholder approval.
13.3 Amendment or Termination of Plan. Subject to Section 4.9 hereof, the Board may at any time (a) terminate or amend this Plan in any respect, including without limitation amendment of any form of Award Agreement or instrument to be executed pursuant to this Plan and (b) terminate any and all outstanding Options or SARs upon a dissolution or liquidation of the Company, followed by the payment of creditors and the distribution of any remaining funds to the Company’s shareholders; provided , however , that the Board will not, without the approval of the shareholders of the Company, amend this Plan in any manner that requires such shareholder approval pursuant to Section 25102(o) or pursuant to the Code or the regulations promulgated under the Code as such provisions apply to ISO plans.
14. DEFINITIONS . For all purposes of this Plan, the following terms will have the following meanings.
“ Acquisition ,” for purposes of Section 11, means:
(a) any consolidation or merger in which the Company is a constituent entity or is a party in which the voting stock and other voting securities of the Company that are outstanding immediately prior to the consummation of such consolidation or merger represent, or are converted into, securities of the surviving entity of such consolidation or merger (or of any Parent of such surviving entity) that, immediately after the consummation of such consolidation or merger, together possess less than fifty percent (50%) of the total voting power of all voting securities of such surviving entity (or of any of its Parents, if any) that are outstanding immediately after the consummation of such consolidation or merger;
 
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(b) a sale or other transfer by the holders thereof of outstanding voting stock and/or other voting securities of the Company possessing more than fifty percent (50%) of the total voting power of all outstanding voting securities of the Company, whether in one transaction or in a series of related transactions, pursuant to an agreement or agreements to which the Company is a party and that has been approved by the Board, and pursuant to which such outstanding voting securities are sold or transferred to a single person or entity, to one or more persons or entities who are Affiliates of each other, or to one or more persons or entities acting in concert; or
(c) the sale, lease, transfer or other disposition, in a single transaction or series of related transactions, by the Company and/or any Subsidiary or Subsidiaries of the Company, of all or substantially all the assets of the Company and its Subsidiaries taken as a whole, (or, if substantially all of the assets of the Company and its Subsidiaries taken as a whole are held by one or more Subsidiaries, the sale or disposition (whether by consolidation, merger, conversion or otherwise) of such Subsidiaries of the Company), except where such sale, lease, transfer or other disposition is made to the Company or one or more wholly owned Subsidiaries of the Company (an “ Acquisition by Sale of Assets ”).
“Affiliate” of a specified person means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified (where, for purposes of this definition, the term “ control” (including the terms controlling , controlled by and under common control with ) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
“ Award ” means any award pursuant to the terms and conditions of this Plan, including any Option, Restricted Stock Unit, Stock Appreciation Right or Restricted Stock Award.
“ Award Agreement ” means, with respect to each Award, the signed written agreement between the Company and the Participant setting forth the terms and conditions of the Award as approved by the Committee.
“ Board ” means the Board of Directors of the Company.
“ Cause ” means Termination because of (a) any willful, material violation by the Participant of any law or regulation applicable to the business of the Company or a Parent or Subsidiary of the Company, the Participant’s conviction for, or guilty plea to, a felony or a crime involving moral turpitude, or any willful perpetration by the Participant of a common law fraud, (b) the Participant’s commission of an act of personal dishonesty which involves personal profit in connection with the Company or any other entity having a business relationship with the Company, (c) any material breach by the Participant of any provision of any agreement or understanding between the Company or any Parent or Subsidiary of the Company and the Participant regarding the terms of the Participant’s service as an employee, officer, director or consultant to the Company or a Parent or Subsidiary of the Company, including without limitation, the willful and continued failure or refusal of the Participant to perform the material duties required of such Participant as an employee, officer, director or consultant of the Company or a Parent or Subsidiary of the Company, other than as a result of having a Disability, or a breach of any applicable invention assignment and confidentiality agreement or similar agreement between the Company or a Parent or Subsidiary of the Company and the Participant, (d) Participant’s disregard of the policies of the Company or any Parent or Subsidiary of the Company so as to cause loss, damage or injury to the property, reputation or employees of the Company or a Parent or Subsidiary of the Company, or (e) any other misconduct by the Participant which is materially injurious to the financial condition or business reputation of, or is otherwise materially injurious to, the Company or a Parent or Subsidiary of the Company.
“ Code ” means the Internal Revenue Code of 1986, as amended.
 
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“ Committee ” means the committee created and appointed by the Board to administer this Plan, or if no committee is created and appointed, the Board.
“ Company ” means Woodman Labs, Inc., or any successor corporation.
“ Disability ” means a disability, whether temporary or permanent, partial or total, as determined by the Committee.
“ Exercise Price ” means the price per Share at which a holder of an Option may purchase Shares issuable upon exercise of the Option.
“ Fair Market Value ” means, as of any date, the value of a share of the Company’s Common Stock determined as follows:
(a) if such Common Stock is then publicly traded on a national securities exchange, its closing price on the date of determination on the principal national securities exchange on which the Common Stock is listed or admitted to trading as reported in The Wall Street Journal ;
(b) if such Common Stock is publicly traded but is not listed or admitted to trading on a national securities exchange, the average of the closing bid and asked prices on the date of determination as reported by The Wall Street Journal (or, if not so reported, as otherwise reported by any newspaper or other source as the Committee may determine); or
(c) if none of the foregoing is applicable to the valuation in question, by the Committee in good faith.
“ Option ” means an award of an option to purchase Shares pursuant to Section 4 of this Plan.
“ Other Combination ” for purposes of Section 11 means any (a) consolidation or merger in which the Company is a constituent entity and is not the surviving entity of such consolidation or merger or (b) any conversion of the Company into another form of entity; provided that such consolidation, merger or conversion does not constitute an Acquisition.
“ Parent ” of a specified entity means, any entity that, either directly or indirectly, owns or controls such specified entity, where for this purpose, “ control ” means the ownership of stock, securities or other interests that possess at least a majority of the voting power of such specified entity (including indirect ownership or control of such stock, securities or other interests).
“ Participant ” means a person who receives an Award under this Plan.
“ Plan ” means this 2010 Equity Incentive Plan, as amended from time to time.
“ Purchase Price ” means the price at which a Participant may purchase Restricted Stock pursuant to this Plan.
“ Restricted Stock ” means Shares purchased pursuant to a Restricted Stock Award under this Plan.
“ Restricted Stock Award ” means an award of Shares pursuant to Section 5 hereof.
“ Restricted Stock Unit ” or “ RSU ” means an award made pursuant to Section 6 hereof.
“ Rule 701 ” means Rule 701 et seq promulgated by the Commission under the Securities Act.
“ SEC ” means the Securities and Exchange Commission.
 
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“ Section 25102(o) ” means Section 25102(o) of the California Corporations Code.
“ Securities Act ” means the Securities Act of 1933, as amended.
“ Shares ” means shares of the Company’s Common Stock reserved for issuance under this Plan, as adjusted pursuant to Sections 2 and 11 hereof, and any successor security.
“ Stock Appreciation Right ” or “ SAR ” means an award granted pursuant to Section 7 hereof.
“ Subsidiary ” means any entity (other than the Company) in an unbroken chain of entities beginning with the Company if each of the entities other than the last entity in the unbroken chain owns stock or other equity securities representing fifty percent (50%) or more of the total combined voting power of all classes of stock or other equity securities in one of the other entities in such chain.
“ Termination ” or “ Terminated ” means, for purposes of this Plan with respect to a Participant, that the Participant has for any reason ceased to provide services as an employee, officer, director or consultant to the Company or a Parent or Subsidiary of the Company. A Participant will not be deemed to have ceased to provide services in the case of sick leave, military leave, or any other leave of absence approved by the Committee; provided that such leave is for a period of not more than ninety (90) days (a) unless reinstatement (or, in the case of an employee with an ISO, reemployment) upon the expiration of such leave is guaranteed by contract or statute, or (b) unless provided otherwise pursuant to formal policy adopted from time to time by the Company’s Board and issued and promulgated in writing. In the case of any Participant on sick leave, military leave or an approved leave of absence, the Committee may make such provisions respecting suspension of vesting of the Award while on leave from the Company or a Parent or Subsidiary of the Company as it may deem appropriate, except that in no event may an Option be exercised after the expiration of the term set forth in the Stock Option Agreement. The Committee will have sole discretion to determine whether a Participant has ceased to provide services and the effective date on which the Participant ceased to provide services (the “ Termination Date ”).
“ Unvested Shares ” means “ Unvested Shares ” as defined in the Award Agreement for an Award.
“ Vested Shares ” means “ Vested Shares ” as defined in the Award Agreement.
* * * * * * * * * * *
 
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WOODMAN LABS, INC.
2010 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
This Stock Option Agreement (the “ Agreement ”) is made and entered into as of the date of grant set forth below (the “ Date of Grant ”) by and between Woodman Labs, Inc., a Delaware corporation (the “ Company ”), and the participant named below (the “ Participant ”). Capitalized terms not defined herein shall have the meaning ascribed to them in the Company’s 2010 Equity Incentive Plan (the “ Plan ”).

Participant:	  	 	
		
Social Security Number:	  	 	
		
Total Option Shares:	  	 	
		
Exercise Price Per Share:	  	 	
		
Date of Grant:	  	 	
		
First Vesting Date:	  	 	
		
Expiration Date:	  	 	
	  	(unless earlier terminated under Section 4.6 of the Plan)	
		
Classification of Optionee	  	¨   Exempt Employee          ¨   Nonexempt Employee	
		
Type of Stock Option	  		
(Check one):	  	¨   Incentive Stock Option          ¨   Nonqualified Stock Option	
1. GRANT OF OPTION . The Company hereby grants to Participant an option (this “ Option ”) to purchase the total number of shares of Common Stock of the Company set forth above as Total Option Shares (the “ Shares ”) at the Exercise Price Per Share set forth above (the “ Exercise Price ”), subject to all of the terms and conditions of this Agreement and the Plan. If designated as an Incentive Stock Option above, the Option is intended to qualify as an “incentive stock option” (the “ ISO ”) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the “ Code ”), except that if on the date of grant the Participant is not subject to U.S. income tax, then this Option shall be a NQSO.
2. EXERCISE PERIOD .
2.1 Exercise Period of Option . Provided Participant continues to provide services to the Company or any Subsidiary or Parent of the Company, the Option will become vested and exercisable over four years, with 1/4 th of the shares subject to the option to vest on the “ First Vesting Date ” set forth above, and on the same day of each succeeding calendar month thereafter (or if there is no such day in any month, then the last day of such calendar month), an additional 1/48 th of the shares shall vest until the option is fully vested or vesting terminates pursuant to this Agreement or the Plan. If application of the vesting percentage causes a fractional share, such share shall be rounded down to the nearest whole share for each month except for the last month in such vesting period, at the end of which last month this Option shall become vested for the full remainder of the Shares.
2.2 Vesting of Options . Shares that are vested pursuant to the schedule set forth in Section 2.1 are “ Vested Shares . ” Shares that are not vested pursuant to the schedule set forth in Section 2.1 are “ Unvested Shares . ”
 
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2.3 Expiration . The Option shall expire on the Expiration Date set forth above or earlier as provided in Section 3 below or pursuant to Section 4.6 of the Plan.
3. TERMINATION .
3.1 Termination for Any Reason Except Death, Disability or Cause . If Participant is Terminated for any reason, except death, Disability or for Cause, the Option, to the extent (and only to the extent) that it would have been exercisable by Participant on the Termination Date, may be exercised by Participant no later than three (3) months after the Termination Date, but in any event no later than the Expiration Date.
3.2 Termination Because of Death or Disability . If Participant is Terminated because of death or Disability of Participant (or Participant dies within three (3) months of Termination when Termination is for any reason other than Participant’s Disability or for Cause), the Option, to the extent that it is exercisable by Participant on the Termination Date, may be exercised by Participant (or Participant’s legal representative) no later than twelve (12) months after the Termination Date, but in any event no later than the Expiration Date. Any exercise beyond (i) three (3) months after the Termination Date when the Termination is for any reason other than the Participant’s death or disability, within the meaning of Section 22(e)(3) of the Code; or (ii) twelve (12) months after the Termination Date when the termination is for Participant’s disability, within the meaning of Section 22(e)(3) of the Code, is deemed to be an NQSO.
3.3 Termination for Cause . If the Participant is terminated for Cause, the Participant may exercise such Participant’s Options, but not to an extent greater than such Options are exercisable as to Vested Shares upon the Termination Date and Participant’s Options shall expire on such Participant’s Termination Date, or at such later time and on such conditions as are determined by the Committee.
3.4 No Obligation to Employ . Nothing in the Plan or this Agreement shall confer on Participant any right to continue in the employ of, or other relationship with, the Company or any Parent or Subsidiary of the Company, or limit in any way the right of the Company or any Parent or Subsidiary of the Company to terminate Participant’s employment or other relationship at any time, with or without Cause.
4. MANNER OF EXERCISE .
4.1 Stock Option Exercise Agreement . To exercise this Option, Participant (or in the case of exercise after Participant’s death or incapacity, Participant’s executor, administrator, heir or legatee, as the case may be) must deliver to the Company an executed stock option exercise agreement in the form attached hereto as Exhibit A , or in such other form as may be approved by the Committee from time to time (the “ Exercise Agreement ”), which shall set forth, inter alia , (i) Participant’s election to exercise the Option, (ii) the number of Shares being purchased, (iii) any restrictions imposed on the Shares and (iv) any representations, warranties and agreements regarding Participant’s investment intent and access to information as may be required by the Company to comply with applicable securities laws. If someone other than Participant exercises the Option, then such person must submit documentation reasonably acceptable to the Company verifying that such person has the legal right to exercise the Option and such person shall be subject to all of the restrictions contained herein as if such person were the Participant.
 
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4.2 Limitations on Exercise . The Option may not be exercised unless such exercise is in compliance with all applicable federal and state securities laws, as they are in effect on the date of exercise. The Option may not be exercised as to fewer than one hundred (100) Shares unless it is exercised as to all Shares as to which the Option is then exercisable.
4.3 Payment . The Exercise Agreement shall be accompanied by full payment of the Exercise Price for the shares being purchased in cash (by check), or where permitted by law:
(a) by cancellation of indebtedness of the Company to the Participant;
(b) by surrender of shares of the Company’s Common Stock that (i) either (A) the Company has received “full payment of the purchase price” within the meaning of SEC Rule 144 (and, if such shares were purchased from the Company by use of a promissory note, such note has been fully paid with respect to such shares); or (B) were obtained by Participant in the open public market; and (ii) are clear of all liens, claims, encumbrances or security interests;
(c) by waiver of compensation due or accrued to Participant for services rendered;
(d) provided that a public market for the Company’s stock exists: (i) through a “same day sale” commitment from Participant and a broker-dealer that is a member of the National Association of Securities Dealers (an “ NASD Dealer ”) whereby Participant irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased sufficient to pay for the total Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company, or (ii) through a “margin” commitment from Participant and an NASD Dealer whereby Participant irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the total Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company; or
(e) any other form of consideration approved by the Committee; or
(f) by any combination of the foregoing.
4.4 Tax Withholding . Prior to the issuance of the Shares upon exercise of the Option, Participant must pay or provide for any applicable federal, state and local withholding obligations of the Company. If the Committee permits, Participant may provide for payment of withholding taxes upon exercise of the Option by requesting that the Company retain the minimum number of Shares with a Fair Market Value equal to the minimum amount of taxes required to be withheld; but in no event will the Company withhold Shares if such withholding would result in adverse accounting consequences to the Company. In such case, the Company shall issue the net number of Shares to the Participant by deducting the Shares retained from the Shares issuable upon exercise.
4.5 Issuance of Shares . Provided that the Exercise Agreement and payment are in form and substance satisfactory to counsel for the Company, the Company shall issue the Shares registered in the name of Participant, Participant’s authorized assignee, or Participant’s legal representative, and shall deliver certificates representing the Shares with the appropriate legends affixed thereto.
5. NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES . If the Option is an ISO, and if Participant sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on
 
3

or before the later of (i) the date two (2) years after the Date of Grant, and (ii) the date one (1) year after transfer of such Shares to Participant upon exercise of the Option, Participant shall immediately notify the Company in writing of such disposition. Participant agrees that Participant may be subject to income tax withholding by the Company on the compensation income recognized by Participant from the early disposition by payment in cash or out of the current wages or other compensation payable to Participant.
6. C OMPLIANCE WITH LAWS AND REGULATIONS . The Plan and this Agreement are intended to comply with Section 25102(o) of the California Corporations Code and any regulations relating thereto. Any provision of this Agreement that is inconsistent with Section 25102(o) or any regulations relating thereto shall, without further act or amendment by the Company or the Board, be reformed to comply with the requirements of Section 25102(o) and any regulations relating thereto. The exercise of the Option and the issuance and transfer of Shares shall be subject to compliance by the Company and Participant with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company’s Common Stock may be listed at the time of such issuance or transfer. Participant understands that the Company is under no obligation to register or qualify the Shares with the SEC, any state securities commission or any stock exchange to effect such compliance.
7. NONTRANSFERABILITY OF OPTION . The Option may not be transferred in any manner other than by will or by the laws of descent and distribution, and, with respect to NQSOs, by instrument to an inter vivos or testamentary trust in which the options are to be passed to beneficiaries upon the death of the trustor (settlor), or by gift to “immediate family” as that term is defined in 17 C.F.R. 240.16a-1(e), and may be exercised during the lifetime of Participant only by Participant or in the event of Participant’s incapacity, by Participant’s legal representative. The terms of the Option shall be binding upon the executors, administrators, successors and assigns of Participant.
8. COMPANY’S RIGHT OF FIRST REFUSAL . Before any Vested Shares held by Participant or any transferee of such Vested Shares may be sold or otherwise transferred (including without limitation a transfer by gift or operation of law), the Company and/or its assignee(s) shall have an assignable right of first refusal to purchase the Vested Shares to be sold or transferred on the terms and conditions set forth in the Exercise Agreement (the “ Right of First Refusal ”). The Company’s Right of First Refusal will terminate when the Company’s securities become publicly traded.
9. TAX CONSEQUENCES . Set forth below is a brief summary as of the Effective Date of the Plan of some of the federal and California tax consequences of exercise of the Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. PARTICIPANT SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE SHARES .
9.1 Exercise of ISO . If the Option qualifies as an ISO, there will be no regular federal or California income tax liability upon the exercise of the Option, although the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated as a tax preference item for federal alternative minimum tax purposes and may subject the Participant to the alternative minimum tax in the year of exercise.
9.2 Exercise of Nonqualified Stock Option . If the Option does not qualify as an ISO, there may be a regular federal and California income tax liability upon the exercise of the Option. Participant will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. If Participant is a current or former employee of the Company, the Company may be
 
4

required to withhold from Participant’s compensation or collect from Participant and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise.
9.3 Disposition of Shares . The following tax consequences may apply upon disposition of the Shares.
(a) Incentive Stock Options . If the Shares are held for more than twelve (12) months after the date of purchase of the Shares pursuant to the exercise of an ISO and are disposed of more than two (2) years after the Date of Grant, any gain realized on disposition of the Shares will be treated as long term capital gain for federal and California income tax purposes. If Vested Shares purchased under an ISO are disposed of within the applicable one (1) year or two (2) year period, any gain realized on such disposition will be treated as compensation income (taxable at ordinary income rates in the year of the disposition) to the extent of the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. To the extent the Shares were exercised prior to vesting coincident with the filing of an 83(b) Election, the amount taxed because of a disqualifying disposition will be based upon the excess, if any, of the fair market value on the date of vesting over the exercise price.
(b) Nonqualified Stock Options . If the Shares are held for more than twelve (12) months after the date of purchase of the Shares pursuant to the exercise of an NQSO, any gain realized on disposition of the Shares will be treated as long term capital gain.
(c) Withholding . The Company may be required to withhold from the Participant’s compensation or collect from the Participant and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income.
10. PRIVILEGES OF STOCK OWNERSHIP . Participant shall not have any of the rights of a shareholder with respect to any Shares until the Shares are issued to Participant.
11 . GENERAL PROVISIONS
11.1 Interpretation . Any dispute regarding the interpretation of this Agreement shall be submitted by Participant or the Company to the Committee for review. The resolution of such a dispute by the Committee shall be final and binding on the Company and Participant.
11.2 Entire Agreement . The Plan is incorporated herein by reference. This Agreement and the Plan constitute the entire agreement of the parties and supersede all prior undertakings and agreements with respect to the subject matter hereof.
11.3 Notices . Any notice required to be given or delivered to the Company under the terms of this Agreement shall be in writing and addressed to the Corporate Secretary of the Company at its principal corporate offices or to its facsimile or telecopier number specified below. Any notice required to be given or delivered to Participant shall be in writing and addressed to Participant at the address, facsimile or telecopier indicated below or to such other address, facsimile or telecopier as such party may designate in writing from time to time to the Company. All notices shall be deemed to have been given or delivered upon: (i) personal delivery; (ii) three (3) days after deposit in the United States mail by certified or registered mail (return receipt requested); (iii) one (1) business day after deposit with any return receipt express courier (prepaid); or (iv) one (1) business day after transmission by facsimile or telecopier.
 
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11.4 Successors and Assigns . The Company may assign any of its rights under this Agreement including its rights to purchase Shares under the Right of First Refusal. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement shall be binding upon Participant and Participant’s heirs, executors, administrators, legal representatives, successors and assigns.
11.5 Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within California. If any provision of this Agreement is determined by a court of law to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
11.6 Acceptance . Participant hereby acknowledges receipt of a copy of the Plan and this Agreement. Participant has read and understands the terms and provisions thereof, and accepts the Option subject to all the terms and conditions of the Plan and this Agreement. Participant acknowledges that there may be adverse tax consequences upon exercise of the Option or disposition of the Shares and that Participant should consult a tax adviser prior to such exercise or disposition.
12.7 Counterparts . This Agreement may be entered into in two or more counterparts and may be entered into by facsimile, each of which shall be deemed an original and all of which shall constitute one and the same Agreement.
[Signature page follows.]
 
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IN WITNESS WHEREOF , the Company has caused this Stock Option Agreement to be executed by its duly authorized representative and Participant has executed this Agreement, effective as of the Date of Grant.

WOODMAN LABS, INC.	  		  	PARTICIPANT	  		
 	  		  	 	
	 		  		  	Signature	  		
Nicholas Woodman	  		  	 	
(Please print name)	  		  	(Please print name)	
				
Chief Executive Officer	  		  		  		
(Please print title)	  		  		  		
					
Address:	 	 	  		  	Address:	  	 	

					
Fax No.:	 	 	  		  	Fax No.:	  	 	
					
Phone No.:	 	 	  		  	Phone No.:	  	 	
 
7

EXHIBIT A
FORM OF STOCK OPTION EXERCISE AGREEMENT

NOTICE OF RESTRICTED STOCK UNIT AWARD
WOODMAN LABS, INC.
2010 EQUITY INCENTIVE PLAN
Unless otherwise defined herein, the terms defined in the Woodman Labs, Inc. (the “ Company ”) 2010 Equity Incentive Plan (the “ Plan ”) shall have the same meanings in this Notice of Restricted Stock Unit Award (the “ Notice ”) and the attached Award Agreement (Restricted Stock Unit Agreement) (hereinafter “ RSU Agreement ”). You (“ you ”) have been granted an award of Restricted Stock Units (“ RSUs ”) under the Plan subject to the terms and conditions of the Plan, this Notice and the attached RSU Agreement.

Name:	  	 	
		
Address:	  	 	
			
Number of RSUs:	  	 	  		
			
Date of Grant:	  	 	  		
			
Vesting Commencement Date:	  	 	  		
		
Expiration Date:	  	The date on which settlement of all RSUs granted hereunder occurs. This RSU expires earlier if your Service terminates earlier, as described in the RSU Agreement.	
		
Vesting Schedule:	  	Subject to the limitations set forth in this Notice, the Plan and the RSU Agreement, 25% of the total number of RSUs will vest on the 12 month anniversary of the Vesting Commencement Date and 6.25% of the total number of RSUs will vest on each three month anniversary thereafter so long as your Service continues. “ Service ” shall mean service as an as an employee, officer, director or consultant to the Company or a Parent or Subsidiary of the Company.	
		
Additional Terms :	  	¨   If this box is checked, the additional terms and conditions set forth on Attachment 1 hereto (as executed by the Company) are applicable and are incorporated herein by reference. No document need be attached as Attachment 1 if the box is not checked.	
You acknowledge that the vesting of the RSUs pursuant to this Notice is earned only by continuing Service as an Employee, Director or Consultant of the Company. By accepting this RSU, you consent to electronic delivery as set forth in the RSU Agreement.

PARTICIPANT	 		 		 		 		 	WOODMAN LABS, INC.	
								
Signature:	 	 	 		 		 		 		 	By:	 	 	
								
Print Name:	 	 	 		 		 		 		 	Its:	 	 	

Attachment 1 to Notice of Restricted Stock Unit Award
WOODMAN LABS, INC.
2010 EQUITY INCENTIVE PLAN
Additional Terms and Conditions to Notice
Name:
Number of Shares:
Date of Grant:
The following terms and conditions apply to the RSUs described above and granted pursuant to the Notice of Restricted Stock Unit Award to which this Attachment 1 is attached:
[to be completed where applicable]
IN WITNESS WHEREOF , Woodman Labs, Inc. has caused this Attachment to be executed by its duly-authorized officer as of the Date of Grant.

 	 		
FOR WOODMAN LABS, INC.	 		
		
By:	 	 	
		
Title:	 	 	
 
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RESTRICTED STOCK UNIT AGREEMENT
WOODMAN LABS, INC.
2010 EQUITY INCENTIVE PLAN
You have been granted Restricted Stock Units (“ RSUs ”) subject to the terms, restrictions and conditions of the Plan, the Notice of Restricted Stock Unit Award (the “ Notice ”) and this RSU Agreement.
1. Settlement . Settlement of RSUs shall be made within 30 days following the applicable date of vesting under the vesting schedule set forth in the Notice. Settlement of RSUs shall be in Shares. Settlement means the delivery of the Shares vested under an RSU. No fractional RSUs or rights for fractional Shares shall be created pursuant to this RSU Agreement.
2. No Stockholder Rights . Unless and until such time as Shares are issued in settlement of vested RSUs, you shall have no ownership of the Shares allocated to the RSUs and shall have no right to dividends or to vote such Shares.
3. Dividends; Dividend Equivalents . You will receive no benefit or adjustment to your RSUs with respect to any cash dividend, stock dividend or other distribution except with respect to a capitalization adjustment as provided under Section 2.2 of the Plan.
4. No Transfer . RSUs may not be sold, assigned, transferred, pledged, hypothecated, or otherwise disposed of in any manner other than by will or by the laws of descent or distribution or court order or unless otherwise permitted by the Committee on a case-by-case basis.
5. Termination . If your Service is Terminated for any reason, all unvested RSUs shall be forfeited to the Company forthwith, and all rights you have to such RSUs shall immediately terminate. In case of any dispute as to whether your Termination has occurred, the Committee shall have sole discretion to determine whether such Termination has occurred and the effective date of such Termination.
6. Tax Consequences . You acknowledge that there will be tax consequences upon settlement of the RSUs or disposition of the Shares, if any, received in connection therewith, and you should consult a tax adviser regarding your tax obligations prior to such settlement or disposition in the jurisdiction where you are subject to tax.
7. Withholding Taxes and Stock Withholding . Regardless of any action the Company or your actual employer (the “ Employer ”) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related withholding (“ Tax-Related Items ”), you acknowledge that the ultimate liability for all Tax-Related Items legally due by you is and remains your responsibility and that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the award, including the settlement of the RSUs, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends; and (2) do not commit to structure the terms of the award or any aspect of the RSUs to reduce or eliminate your liability for Tax-Related Items. You acknowledge that if you are subject to Tax-Related Items in more than one jurisdiction, the Company and/or the Employer may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to the settlement of your RSUs, you shall pay or make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all withholding and payment on account obligations of the Company and/or the Employer. In this regard, you authorize the Company and/or the Employer to withhold all applicable Tax-Related Items legally payable by you from your wages or other cash compensation paid to you by the Company and/or the Employer. With the Company’s consent, these arrangements may also include, if permissible under local law, (a) withholding Shares that otherwise would be issued to you when your RSUs are settled, provided
 
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that the Company only withholds the amount of Shares necessary to satisfy the minimum statutory withholding amount, (b) having the Company withhold taxes from the proceeds of the sale of the Shares, either through a voluntary sale or through a mandatory sale arranged by the Company (on your behalf and you hereby authorize such sales by this authorization), (c) your payment of a cash amount, or (d) any other arrangement approved by the Company; all under such rules as may be established by the Committee and in compliance with the Company’s Insider Trading Policy and 10b5-1 Trading Plan Policy, if applicable; provided however, that if you are a Section 16 officer of the Company under the Exchange Act, then the Committee (as constituted in accordance with Rule 16b-3 under the Exchange Act) shall establish the method of withholding from alternatives (a)-(d) above, and the Committee shall establish the method prior to the Tax-Related Items withholding event. The Fair Market Value of these Shares, determined as of the effective date when taxes otherwise would have been withheld in cash, will be applied as a credit against the withholding taxes. You shall pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold as a result of your participation in the Plan or your purchase of Shares that cannot be satisfied by the means previously described. Finally, you acknowledge that the Company has no obligation to deliver Shares to you until you have satisfied the obligations in connection with the Tax-Related Items as described in this Section.
8. Acknowledgement . The Company and you agree that the RSUs are granted under and governed by the Notice, this RSU Agreement and the provisions of the Plan. You: (i) acknowledge receipt of a copy of the Notice, this RSU Agreement, the Plan and the Rule 701(e) Information Statement, (ii) represent that you have carefully read and are familiar with their provisions, and (iii) hereby accept the RSUs subject to all of the terms and conditions set forth herein and those set forth in the Notice.
9. Entire Agreement; Enforcement of Rights . This RSU Agreement, the Plan and the Notice constitute the entire agreement and understanding of the parties relating to the subject matter herein and supersede all prior discussions between them. Any prior agreements, commitments or negotiations concerning the purchase of the Shares hereunder are superseded. No modification of or amendment to this RSU Agreement, nor any waiver of any rights under this RSU Agreement, shall be effective unless in writing and signed by the parties to this RSU Agreement. The failure by either party to enforce any rights under this RSU Agreement shall not be construed as a waiver of any rights of such party.
10. Compliance with Laws and Regulations . The issuance of Shares will be subject to and conditioned upon compliance by the Company and you with all applicable state, federal and foreign laws and regulations and with all applicable requirements of any stock exchange or automated quotation system on which the Company’s Common Stock may be listed or quoted at the time of such issuance or transfer. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance and sale of any Shares 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. As a condition to the issuance of any Shares pursuant to this RSU, the Company may require you to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company. The Shares issued pursuant to this Agreement shall be endorsed with appropriate legends, if any, determined by the Company.
11. Governing Law; Severability . If one or more provisions of this RSU Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this RSU Agreement, (ii) the balance of this RSU Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of this RSU Agreement shall be enforceable in accordance with its terms. This RSU Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law. For purposes of
 
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litigating any dispute that may arise directly or indirectly from the Plan, the Notice and this RSU Agreement, the parties hereby submit and consent to litigation in the exclusive jurisdiction of the State of California and agree that any such litigation shall be conducted only in the courts of California or the federal courts of the United States for the Northern District of California and no other courts.
11. No Rights as Employee, Director or Consultant . Nothing in this RSU Agreement shall affect in any manner whatsoever the right or power of the Company, or a Parent or Subsidiary of the Company, to terminate your Service, for any reason, with or without Cause.
12. Consent to Electronic Delivery of All Plan Documents and Disclosures . By acceptance of this RSU, you consent to the electronic delivery of the Notice, this RSU Agreement, the Plan, account statements, the Rule 701(e) Information Statement, Plan prospectuses required by the Securities and Exchange Commission, U.S. financial reports of the Company, and all other documents that the Company is required to deliver to its security holders (including, without limitation, annual reports and proxy statements) or other communications or information related to the RSU. Electronic delivery may include the delivery of a link to a Company intranet or the internet site of a third party involved in administering the Plan, the delivery of the document via e-mail or such other delivery determined at the Company’s discretion. You acknowledge that you may receive from the Company a paper copy of any documents delivered electronically at no cost if you contact the Company by telephone, through a postal service or electronic mail at [insert email]. You further acknowledge that you will be provided with a paper copy of any documents delivered electronically if electronic delivery fails; similarly, you understand that you must provide on request to the Company or any designated third party a paper copy of any documents delivered electronically if electronic delivery fails. Also, you understand that your consent may be revoked or changed, including any change in the electronic mail address to which documents are delivered (if you have provided an electronic mail address), at any time by notifying the Company of such revised or revoked consent by telephone, postal service or electronic mail at [insert email]. Finally, you understand that you are not required to consent to electronic delivery.
13. Market Standoff Agreement . You agree in connection with any registration of the Company’s securities under the Securities Act or other public offering that, upon the request of the Company or the underwriters managing any registered public offering of the Company’s securities, you will not sell or otherwise dispose of any Shares without the prior written consent of the Company or such managing underwriters, as the case may be, for a period of time (not to exceed one hundred eighty (180) days, but subject to extension as provided below) after the effective date of such registration requested by such managing underwriters and subject to all restrictions as the Company or the managing underwriters may specify for employee-stockholders generally. If during the last seventeen (17) days of the restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or prior to the expiration of the restricted period the Company announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period, and if the Company’s securities are listed on the Nasdaq Stock Market and Rule 2711 thereof (or any other successor rule) applies, then the restrictions imposed by this Section 13 shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. In no event will the restricted period extend beyond two hundred fifteen (215) days after the effective date of the registration statement. For purposes of this Section 13, the term “Company” shall include any wholly-owned subsidiary of the Company into which the Company merges or consolidates. In order to enforce the foregoing covenant, the Company shall have the right to place restrictive legends on the certificates representing the shares subject to this Section and to impose stop transfer instructions with respect to the Shares until the end of such period. You further agree to enter into any agreement reasonably required by the underwriters to implement the foregoing and that such underwriters are express third party beneficiaries of this Section 13.
14. Code Section 409A . For purposes of this RSU Agreement, a termination of employment will be determined consistent with the rules relating to a “separation from service” as defined in Section 409A of the Internal Revenue Code and the regulations thereunder (“ Section 409A ”). Notwithstanding anything else
 
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provided herein, to the extent any payments provided under this RSU Agreement in connection with your termination of employment constitute deferred compensation subject to Section 409A, and you are deemed at the time of such termination of employment to be a “specified employee” under Section 409A, then such payment shall not be made or commence until the earlier of (i) the expiration of the six-month period measured from your separation from service from the Company or (ii) the date of your death following such a separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to you including, without limitation, the additional tax for which you would otherwise be liable under Section 409A(a)(1)(B) in the absence of such a deferral. To the extent any payment under this RSU Agreement may be classified as a “short-term deferral” within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. Payments pursuant to this section are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.
15 . Award Subject to Company Clawback or Recoupment . The RSU shall be subject to clawback or recoupment pursuant to any compensation clawback or recoupment policy adopted by the Board or required by law during the term of your employment or other Service with the Company that is applicable to executive officers, Employees, Directors or other service providers of the Company, and in addition to any other remedies available under such policy and applicable law may require the cancellation of your RSU (whether vested or unvested) and the recoupment of any gains realized with respect to your RSU.
BY ACCEPTING THIS RSU, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.
 
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Exhibit 10.05

February 8, 2013
Nina Richardson
Via Email
Dear Nina:
We are pleased to offer you a position with Woodman Labs, Inc. DBA “GoPro” (the “Company”), as a Chief Operating Officer reporting to Nicholas Woodman. If you decide to join us, you will receive an annual salary of $325,000, which will be paid semi-monthly on the 15th and last day of the month in accordance with the Company’s normal payroll procedures. You will also be eligible for a bonus of up to 50% of your annual salary per year, which will be paid annually based on company performance and individual objectives. In addition, you will receive a reimbursement of the reasonable costs associated with your relocation from Pleasanton, CA not to exceed Ten Thousand Dollars ($10,000) and subject to the terms and conditions of the attached policy and reimbursement guidelines.
You will also be eligible to receive certain employee benefits. A list of current employee benefits will be provided in the Benefits Information Guide . Eligibility for benefits begins on the first (1st) day of the month following your first day of employment, with the exception of participating in our 401k which you will be eligible on the first day of your employment. You should note that the Company may modify job titles, salaries, commission plans, bonuses and benefits from time to time as it deems necessary and at its sole discretion.
Subject to approval of the Board, you will be granted an option (“Option”) to purchase 450,000 shares of the Company’s Common Stock. The Option will be subject to the terms and conditions applicable to options granted under the Company’s 2010 Equity Incentive Plan (the “Plan”), as described in the Plan and the applicable Stock Option Agreement which will be made available to you at the time of grant.
The exercise price per share of the Option will be determined by the Board when the Option is granted. You will vest in 25% of the shares subject to the Option after 12 months of continuous service, and the balance of the shares subject to the Option will vest in equal monthly installments over the next 36 months of continuous service, as described in the applicable Stock Option Agreement.
In addition to your vesting schedule as previously defined, you have the opportunity to receive accelerated vesting on 25,000 of your 450,000 share grant under the following conditions: if the company achieves the 2014 Operating Plan as approved and certified as achieved by the Board of Directors, then on the second anniversary of your employment 25,000 unvested shares shall immediately vest, provided you are employed through the second anniversary of your employment.
In addition, if a Change in Control occurs during your employment and your employment is terminated within 12 months following the change in control (dual trigger) then you will receive an accelerated vesting of 12 months.
1. Definitions . The following terms have the meaning set forth below wherever they are used in this letter agreement:
“ Cause ” means (a) your unauthorized use or disclosure of the Company’s confidential information or trade secrets, which use or disclosure causes material harm to the Company, (b) your material breach of any agreement between you and the Company, (c) your material failure to comply with the Company’s written policies or rules, (d) your conviction of, or your plea of “guilty” or “no contest” to, a felony under the laws of the United States or any State, (e) your gross negligence or willful misconduct, (f) your continuing failure to perform assigned duties after receiving written notification of the failure from the Company’s Board of Directors or (g) your failure to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested your cooperation
 
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“Change in Control” means an Acquisition or Other Combination as defined in the Plan.
“Involuntary Termination” means either (a) your Termination Without Cause or (b) your Resignation for Good Reason.
“Resignation for Good Reason” means your resignation within three months after one of the following conditions has come into existence without your consent:
 
 	•	 	A reduction in your base salary by more than 10%;	
 
 	•	 	A material diminution of your authority, duties or responsibilities; or	
 
 	•	 	A relocation of your principal workplace that increases your one-way commute by at least 35 miles.	
A Resignation for Good Reason will not be deemed to have occurred unless you give the Company written notice of the condition within 30 days after the condition comes into existence and the Company fails to remedy the condition within 30 days after receiving your written notice.
The Company is excited about your joining and looks forward to a beneficial and productive relationship. Nevertheless, you should be aware that your employment with the Company is for no specified period and constitutes at will employment. As a result, you are free to resign at any time, for any reason or for no reason. Similarly, the Company is free to conclude its employment relationship with you at any time, with or without cause, and with or without notice. We request that, in the event of resignation, you give the Company at least two weeks’ notice. Any modification or change in your at will status may only occur by way of a written employment agreement signed by you and the Chief Executive Officer of the Company.
The Company reserves the right to conduct background and reference checks on all of its potential employees. Your job offer, therefore, is contingent upon satisfactory verification of your criminal, education and employment history, and this offer can be rescinded based upon data received in the verification.
For purposes of federal immigration law, you will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to us within three (3) business days of your date of hire, or our employment relationship with you may be terminated.
By your signature below, you acknowledge that you have disclosed to the Company any and all agreements relating to your prior employment that may affect your eligibility to be employed by the Company or limit the manner in which you may be employed, and you represent that your signing of this offer and commencement of employment with the Company will not violate any such agreement. Moreover, you agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. Similarly, you agree not to bring any third party confidential information to the Company, including that of your former employer, and that in performing your duties for the Company you will not in any way utilize any such information.
As a Company employee, you will be expected to abide by the Company’s rules and standards. Specifically, you will be required to sign an acknowledgment that you have read and that you understand the Company’s rules of conducts which are included in the Company Handbook.
As a condition of your employment, you are also required to sign and comply with the Company’s standard Employee Invention Assignment and Confidentiality Agreement which requires, among other provisions, the assignment of patent rights to any invention made during your employment at the Company, and non-disclosure of Company proprietary information.
 
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You and the Company agree to submit to mandatory binding arbitration any and all claims arising out of or related to your employment with the Company and the termination thereof, including, but not limited to, claims for unpaid wages, wrongful termination, torts, stock or stock options or other ownership interest in the Company, and/or discrimination (including harassment) based upon any federal, state or local ordinance, statute, regulation or constitutional provision except that each party may, at its, his or her option, seek injunctive relief in court related to the improper use, disclosure or misappropriation of a party’s proprietary, confidential or trade secret information. All arbitration hearings shall be conducted in San Mateo County, California. The parties hereby waive any rights they may have to trial by jury in regard to such claims. This Agreement does not restrict your right to file administrative claims you may bring before any government agency where, as a matter of law, the parties may not restrict the employee’s ability to file such claims (including, but not limited to, the National Labor Relations Board, the Equal Employment Opportunity Commission and the Department of Labor). However, the parties agree that, to the fullest extent permitted by law, arbitration shall be the exclusive remedy for the subject matter of such administrative claims. The arbitration shall be conducted through JAMS before a single neutral arbitrator, in accordance with the JAMS employment arbitration rules then in effect. The JAMS rules may be found and reviewed at http://www.jamsadr.com/rules-employment-arbitration. If you are unable to access these rules, please let me know and I will provide you with a hardcopy. The arbitrator shall issue a written decision that contains the essential findings and conclusions on which the decision is based.
To accept the Company’s offer, please sign and date this letter in the space provided below. This letter, along with any agreements relating to proprietary rights between you and the Company, set forth the terms of your employment with the Company and supersede any prior representations or agreements including, but not limited to, any representations made during your recruitment, interviews or pre-employment negotiations, whether written or oral. This offer of employment will terminate if it is not accepted, signed and returned by February 8, 2013. We would like to have you start on February 12, 2013.
We look forward to your favorable reply and to working with you at GoPro.

Sincerely,	  		
		
Nicholas Woodman	  		
Chief Executive Officer	  		
		
/s/ Nicholas Woodman	  	 	
Agreed to and accepted:	  		
		
/s/ Nina Richardson	  	        02/08/2013	
Nina Richardson Signature	  	            Date	
 
3

Exhibit 10.06

July 29, 2011
Paul Crandell
Via email
Dear Paul:
We are pleased to offer you a position with Woodman Labs, Inc. DBA “GoPro” (the “Company”), as Vice President, Brand Marketing. If you decide to join us, you will receive Two Hundred Ten Thousand ($210,000) annually, which will be paid bi-weekly in accordance with the Company’s normal payroll procedures. You will also be eligible for a bonus up to 20% of your annual salary per year which will be paid annually based on company performance and individual objectives. In addition you will receive a relocation assistance allowance up to $15,000.
You will also be eligible to receive certain employee benefits. A list of current employee benefits will be provided in a Summary of Benefits document. Eligibility for benefits begins on the first (1st) day of the month following your first day of employment, with the exception of participating in our 401k which you will be eligible 90 days after your first day of employment. You should note that the Company may modify job titles, salaries, commission plans, bonuses and benefits from time to time as it deems necessary.
Subject to approval of the Board, you will be granted an option to purchase 100,000 shares of the Company’s Common Stock. The option will be subject to the term and conditions applicable to options granted under the Company’s 2010 Equity Incentive Plan (the “Plan”), as described in the Plan and the applicable Stock Option Agreement which will be made available to you at the time of grant.
The Company is excited about your joining and looks forward to a beneficial and productive relationship. Nevertheless, you should be aware that your employment with the Company is for no specified period and constitutes at will employment. As a result, you are free to resign at any time, for any reason or for no reason. Similarly, the Company is free to conclude its employment relationship with you at any time, with or without cause, and with or without notice. We request that, in the event of resignation, you give the Company at least two weeks notice.
The Company reserves the right to conduct background investigations and/or reference checks on all of its potential employees. Your job offer, therefore, is contingent upon a clearance of such a background investigation and/or reference check, if any.

For purposes of federal immigration law, you will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to us within three (3) business days of your date of hire, or our employment relationship with you may be terminated.
We also ask that, if you have not already done so, you disclose to the Company any and all agreements relating to your prior employment that may affect your eligibility to be employed by the Company or limit the manner in which you may be employed. It is the Company’s understanding that any such agreements will not prevent you from performing the duties of your position and you represent that such is the case. Moreover, you agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. Similarly, you agree not to bring any third party confidential information to the Company, including that of your former employer, and that in performing your duties for the Company you will not in any way utilize any such information.
As a Company employee, you will be expected to abide by the Company’s rules and standards. Specifically, you will be required to sign an acknowledgment that you have read and that you understand the Company’s rules of conduct which are included in the Company Handbook which the Company will soon complete and distribute.
As a condition of your employment you are also required to sign and comply with an At Will Employment, Confidential Information, Invention Assignment and Arbitration Agreement which requires, among other provisions, the assignment of patent rights to any invention made during your employment at the Company, and non disclosure of Company proprietary information. In the event of any dispute or claim relating to or arising out of our employment relationship, you and the Company agree that (i) any and all disputes between you and the Company shall be fully and finally resolved by binding arbitration, (ii) you are waiving any and all rights to a jury trial but all court remedies will be available in arbitration, (iii) all disputes shall be resolved by a neutral arbitrator who shall issue a written opinion, (iv) the arbitration shall provide for adequate discovery, and (v) the Company shall pay all but the first $125 of the arbitration fees. Please note that we must receive your signed Agreement before your first day of employment.
To accept the Company’s offer, please sign and date this letter in the space provided below. A duplicate original is enclosed for your records. This letter, along with any agreements relating to proprietary rights between you and the Company, set forth the terms of your employment with the Company and supersede any prior representations or agreements including, but not limited to, any representations made during your recruitment, interviews or pre employment negotiations, whether written or oral. This letter, including, but not limited to, its at will employment provision, may not be modified or amended except by a written agreement signed by the President of the Company and you. This offer of employment will terminate if it is not accepted, signed and returned by August 1, 2011. We would like to have you start on or about August 15, 2011 and realize that there may be a longer transition time with your current situation.
 
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We look forward to your favorable reply and to working with you at GoPro.

Sincerely,	
	
/s/ Molly Theda	
Molly Theda	
Director of HR	

Agreed to and accepted:	
		
Signature:	 	/s/ Paul Crandell	
	 	Paul Crandell	

		
Date:	 	7/31/11	

3

Exhibit 10.07

January 17, 2014
Jack Lazar
Via Email
Dear Jack:
We are pleased to offer you a position with Woodman Labs, Inc. DBA “GoPro” (the “Company”), as a Chief Financial Officer reporting to Nicholas Woodman. If you decide to join us, you will receive an annual salary of $350,000, which will be paid semi-monthly on the 15th and last day of the month in accordance with the Company’s normal payroll procedures. You will also be eligible for a bonus of up to 75% of your annual salary per year, which will be paid annually based on company performance and individual objectives.
You will also be eligible to receive certain employee benefits. A list of current employee benefits will be provided in the Benefits Information Guide. Eligibility for benefits begins on the first (1st) day of the month following your first day of employment, with the exception of participating in our 401k which you will be eligible on the first day of your employment. You should note that the Company may modify job titles, salaries, commission plans, bonuses and benefits from time to time as it deems necessary and at its sole discretion (acknowledging that such changes in certain circumstances may trigger Change in Control rights set out in this letter).
Subject to approval of the Company’s Board of Directors (the “Board”), you will be granted an option (“Option”) to purchase 900,000 shares of the Company’s Common Stock, at the fair market value of the Company’s Common Stock, as determined by the Board on the date the Board approves the Option. The fair market value of the Company’s Common Stock as of September 30, 2013, as determined most recently by the Board, is $16.19 per share. The fair market value of the Company’s Common Stock as of December 31, 2013 is currently estimated to be $16.22 per share. The Option will be subject to the terms and conditions applicable to options granted under the Company’s 2010 Equity Incentive Plan (the “Plan”), as described in the Plan and the applicable Stock Option Agreement which will be made available to you at the time of grant.
The exercise price per share of the Option will be determined by the Board when the Option is granted. You will vest in 20% of the shares subject to the Option after 12 months of continuous service, and the balance of the shares subject to the Option will vest in equal monthly installments over the next 48 months of continuous service, as described in the applicable Stock Option Agreement.

Subject to the approval of the Board, you will be granted 100,000 shares of restricted stock units (“RSUs”) under the Plan. The RSUs will vest in four equal annual installments of 25% each based on your continuous service. RSUs that vest will be settled in the Company’s Common Stock in the calendar year following the year of vesting. For example, RSUs that vest in 2014 will be settled in 2015. The RSUs shall be subject to the terms and conditions set forth in the Plan and in the Restricted Stock Unit Agreement between you and the Company. You will be responsible for applicable withholding taxes that become due upon settlement of the RSUs. The RSUs will permit payment of taxes through stock withholding in our sole discretion and, to the extent there is a public market for our common stock, sell-to-cover transactions.
Upon commencement of employment, you will also be entitled and subject to the terms and conditions set out in the accompanying Change in Control Severance Agreement, once fully executed.
The Company is excited about your joining and looks forward to a beneficial and productive relationship. Nevertheless, you should be aware that your employment with the Company is for no specified period and constitutes at will employment. As a result, you are free to resign at any time, for any reason or for no reason. Similarly, the Company is free to conclude its employment relationship with you at any time, with or without cause, and with or without notice. We request that, in the event of resignation, you give the Company at least two weeks’ notice. Any modification or change in your at will status may only occur by way of a written employment agreement signed by you and the Chief Executive Officer of the Company.
The Company reserves the right to conduct background and reference checks on all of its potential employees. Your job offer, therefore, is contingent upon satisfactory verification of your criminal, education and employment history, and this offer can be rescinded based upon data received in the verification.
For purposes of federal immigration law, you will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to us within three (3) business days of your date of hire, or our employment relationship with you may be terminated.
By your signature below, you acknowledge that you have disclosed to the Company any and all agreements relating to your prior employment that may affect your eligibility to be employed by the Company or limit the manner in which you may be employed, and you represent that your signing of this offer and commencement of employment with the Company will not violate any such agreement. Moreover, you agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. Similarly, you agree not to bring any third party confidential information to the Company, including that of your former employer, and that in performing your duties for the Company you will not in any way utilize any such information.
 
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As a Company employee, you will be expected to abide by the Company’s rules and standards. Specifically, you will be required to sign an acknowledgment that you have read and that you understand the Company’s rules of conducts which are included in the Company Handbook.
As a condition of your employment, you are also required to sign and comply with the Company’s standard Employee Invention Assignment and Confidentiality Agreement which requires, among other provisions, the assignment of patent rights to any invention made during your employment at the Company, and non-disclosure of Company proprietary information.
You and the Company agree to submit to mandatory binding arbitration any and all claims arising out of or related to your employment with the Company and the termination thereof, including, but not limited to, claims for unpaid wages, wrongful termination, torts, stock or stock options or other ownership interest in the Company, and/or discrimination (including harassment) based upon any federal, state or local ordinance, statute, regulation or constitutional provision except that each party may, at its, his or her option, seek injunctive relief in court related to the improper use, disclosure or misappropriation of a party’s proprietary, confidential or trade secret information. All arbitration hearings shall be conducted in San Mateo County, California. The parties hereby waive any rights they may have to trial by jury in regard to such claims. This Agreement does not restrict your right to file administrative claims you may bring before any government agency where, as a matter of law, the parties may not restrict the employee’s ability to file such claims (including, but not limited to, the National Labor Relations Board, the Equal Employment Opportunity Commission and the Department of Labor). However, the parties agree that, to the fullest extent permitted by law, arbitration shall be the exclusive remedy for the subject matter of such administrative claims. The arbitration shall be conducted through JAMS before a single neutral arbitrator, in accordance with the JAMS employment arbitration rules then in effect. The JAMS rules may be found and reviewed at http://www.jamsadr.com/rules-employment-arbitration. If you are unable to access these rules, please let me know and I will provide you with a hardcopy. The arbitrator shall issue a written decision that contains the essential findings and conclusions on which the decision is based.
To accept the Company’s offer, please sign and date this letter in the space provided below. This letter, along with any agreements relating to proprietary rights between you and the Company, set forth the terms of your employment with the Company and supersede any prior representations or agreements including, but not limited to, any representations made during your recruitment, interviews or pre-employment negotiations, whether written or oral. This offer of employment will terminate if it is not accepted, signed and returned by January 20, 2014. We would like to have you start on January 24, 2014. Your benefits will start February 1, 2014, except as set forth above.
 
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We look forward to your favorable reply and to working with you at GoPro.

Sincerely,	
	
/s/ Nicholas Woodman                                1/17/14	
Nicholas Woodman	
Chief Executive Officer	
Agreed to and accepted:

Signature:	 	/s/ Jack Lazar	
	 	Jack Lazar	
		
Date:	 	1/17/14	
 
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Exhibit 10.08

August 23, 2013
Sharon S Zezima
Via Email
Dear Sharon:
We are pleased to offer you a position with Woodman Labs, Inc. DBA “GoPro” (the “Company”), as General Counsel reporting to Kurt Amundson. If you decide to join us, you will receive an annual salary of Two Hundred Seventy Five Thousand Dollars ($275,000.00), which will also be eligible for a bonus of up to 40% of your annual salary per year, which will be paid annually based on company performance for individual objectives.
You will also be eligible to receive certain employee benefits. A list of current employee benefits will be provided in a Summary of Benefits document. Eligibility for benefits begins on the first (1st) day of the month following your first day of employment, with the exception of participating in our 401k which you will be eligible on the first day of your employment. You should note that the Company may modify job titles, salaries, commission plans, bonuses and benefits from time to time as it deems necessary and at its sole discretion.
Subject to approval of the Board, you will be granted an option to purchase 75,000 shares of the Company’s Common Stock. The option will be subject to the terms and conditions applicable to options granted under the Company’s 2010 Equity Incentive Plan (the ‘Plan”), as described in the Plan and the applicable Stock Option Agreement which will be made available to you at the time of grant.
The exercise price per share of the Option will be determined by the Board when the Option is granted. You will vest in 25% of the shares subject to the Option after 12 months of continuous service, and the balance of the shares subject to the Option will vest in equal monthly installments over the next 36 months of continuous service, as described in the applicable Stock Option Agreement.
The Company is excited about your joining and looks forward to a beneficial and productive relationship. Nevertheless, you should be aware that your employment with the Company is for no specified period and constitutes at will employment. As a result, you are free to resign at any time for any reason or for no reason. Similarly, the Company is free to conclude its employment relationship with you at any time, with or without cause, and with or without notice. We request that, in the event of resignation, you give the Company at least two weeks’ notice. Any modification or change in your at will status may only occur by way of a written employment agreement signed by you and the Chief Executive Officer of the Company.

 
The Company reserves the right to conduct background and reference checks on all of its potential employees. Your job offer, therefor, is contingent upon satisfactory verification of your criminal, education and employment history, and this offer can be rescinded based upon data received in the verification.
For purposes of federal immigration law, you will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to us within three (3) business days of your date of hire, or our employment relationship with you may be terminated.
By your signature below, you acknowledge that you have disclosed to the Company any and all agreements relating to your prior employment that may affect your eligibility to be employed by the Company or limit the manner in which you may be employed, and you represent that your signing of this offer and commencement of employment with the Company will not violate any such agreement. Moreover, you agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. Similarly, you agree not to bring any third party confidential information to the Company, including that of your former employer, and that in performing your duties for the Company you will not in any way utilize any such information.
As a Company employee, you will be expected to abide by the Company’s rules and standards. Specifically, you will be required to sign an acknowledgment that you have read and that you understand the Company’s rules of conduct which are included in the Company Handbook.
As a condition of your employment, you are also required to sign and comply with the Company’s standard Employee Invention Assignment and Confidentiality Agreement which requires, among other provisions, the assignment of patent rights to any invention made during your employment at the Company, and non-disclosure of Company proprietary information.
You and the Company agree to submit to mandatory binding arbitration any and all claims arising out of or related to your employment with the Company and the termination thereof, including, but not limited to, claims for unpaid wages, wrongful termination, torts, stock or stock options or other ownership interest in the Company, and/or discrimination (including harassment) based upon any federal, state or local ordinance, statute, regulation or constitutional provision except that each party may, at its, his or her option, seek injunctive relief in court related to the improper use, disclosure or misappropriation of a party’s proprietary, confidential or trade secret information. All arbitration hearings shall be conducted in San Mateo County, California. The parties hereby waive any rights they may have to trial by jury in regard to such claims. This Agreement does not restrict your right to file administrative claims you may bring before any government agency where, as a matter of law, the parties may not restrict the employee’s ability to file such claims (including, but not limited to, the National Labor Relations Board, the Equal Employment Opportunity Commission and the Department of Labor).

 
However, the parties agree that, to the fullest extent permitted by law, arbitration shall be the exclusive remedy for the subject matter of such administrative claims. The arbitration shall be conducted through JAMS before a single neutral arbitrator, in accordance with the JAMS employment arbitration rules then in effect. The JAMS rules may be found and reviewed at http://www.jamsadr.com/rules-employment-arbitration. If you are unable to access these rules, please let me know and I will provide you with a hardcopy. The arbitrator shall issue a written decision that contains the essential findings and conclusions on which the decision is based.
To accept the Company’s offer, please sign and date this letter in the space provided below. This letter, along with any agreements relating to proprietary rights between you and the Company, set forth the terms of your employment with the Company and supersede any prior representations or agreements including, but not limited to, any representations made during your recruitment, interviews or pre-employment negotiations, whether written or oral. This offer of employment will terminate if it is not accepted, signed and returned by August 26, 2013. We would like to have you start on September 16, 2013
We look forward to your favorable reply and to working with you at GoPro.

Sincerely,	
	
/s/ Allison Banks	
	
Allison Banks	
Sr. Director of Human Resources	

Agreed to and accepted:	

Signature:	 	/s/ Sharon Zezima	 	Date:	 	8/23/13	
	 	Sharon S. Zezima	 		 		

Exhibit 10.09
C HANGE IN C ONTROL S EVERANCE A GREEMENT
This Change in Control Severance Agreement is entered into as of [date] (the “Effective Date”) by and between [Name] (the “Executive”) and WOODMAN LABS, INC., a Delaware corporation (the “Company”).
1. Term of Agreement.
Except to the extent renewed as set forth in this Section 1, this Agreement shall terminate the earlier of December 31, 2016 (the “Expiration Date”) or the date the Executive’s employment with the Company terminates for a reason other than a Qualifying Termination as described in Section 4(e); however, if a definitive agreement relating to a Change in Control has been signed by the Company on or before December 31, 2016, then this Agreement shall remain in effect through the earlier of:
(a) The date the Executive’s employment with the Company terminates for a reason other than a Qualifying Termination as described in Section 4(e) or
(b) The date the Company has met all of its obligations under this Agreement following a termination of the Executive’s employment with the Company for a reason described in Section 4(e).
This Agreement shall renew automatically and continue in effect for three year periods measured from the initial Expiration Date, unless the Company provides Executive notice of non-renewal at least three months prior to the date on which this Agreement would otherwise expire.
2. Severance Benefit.
(a) Severance Payments . If the Executive is subject to a Qualifying Termination, then, subject to Section 3 below, the Company shall pay the Executive [            ] months of his or her monthly base salary (at the rate in effect immediately prior to the actions that resulted in the Qualifying Termination) and an amount equal to the greater of (A) [            ]% of the Executive’s annual target bonus or (B) [            ]% of the most recent annual bonus paid by the Company to Executive. Such severance payment shall be paid in accordance with the Company’s standard payroll procedures. The Executive will receive his or her severance payment in a cash lump-sum which will be made on the sixtieth (60 th ) day following the Separation, provided that the following have already occurred:
 
 	(i)	the date of Executive’s Qualifying Termination;	
 
 	(ii)	the date of the Company’s receipt of the Executive’s executed General Release (as described in Section 2(d)); and	
 
 	(iii)	the expiration of any rescission period applicable to the Executive’s executed General Release.	

(b) Equity. If the Executive is subject to a Qualifying Termination, then, subject to Section 3 below, each of Executive’s then outstanding unvested Equity Awards, including awards that would otherwise vest only upon satisfaction of performance criteria, shall accelerate and become vested and exercisable with respect to [            ]% of the then unvested shares subject thereto. “ Equity Awards ” means all options to purchase shares of Company common stock as well as any and all other stock-based awards granted to the Executive, including but not limited to stock bonus awards, restricted stock, restricted stock units or stock appreciation rights. Subject to Section 3, the accelerated vesting described above shall be effective as of the Separation. All RSUs vested at the date of the Change in Control shall be settled upon or within thirty (30) days following the Change in Control; all RSUs that vest after the Change in Control shall settle within thirty (30) days of vesting.
(c) Pay in Lieu of Continued Employee Benefits . If the Executive is subject to a Qualifying Termination, in lieu of continued employee benefits (other than as statutorily required, such as COBRA continuation coverage at Executive’s own expense as required by law), Executive shall receive payments of $3,000 per month for [            ] months from the Separation in accordance with the payroll schedule applicable to active officers of the Company beginning on the sixtieth (60 th ) day following the Separation.
(d) General Release . Any other provision of this Agreement notwithstanding, Subsections (a), (b), and (c) above shall not apply unless the Executive (i) has executed a general release (in a form prescribed by the Company) of all known and unknown claims that he or she may then have against the Company or persons affiliated with the Company and such release has become effective and (ii) has agreed not to prosecute any legal action or other proceeding based upon any of such claims. The release must be in the form prescribed by the Company, without alterations. The Company will deliver the form to the Executive within thirty (30) days after the Executive’s Separation. The Executive must execute and return the release within the time period specified in the form.
(e) Accrued Compensation and Benefits . In connection with any termination of employment upon or following a Change in Control (whether or not a Qualifying Termination), the Company shall pay Executive’s earned but unpaid base salary and other vested but unpaid cash entitlements for the period through and including the termination of employment, including unused earned vacation pay and unreimbursed documented business expenses incurred by Executive prior to the date of termination (collectively “Accrued Compensation and Expenses”), as required by law and the applicable Company plan or policy. In addition, Executive shall be entitled to any other vested benefits earned by Executive for the period through and including the termination date of Executive’s employment under any other employee benefit plans and arrangements maintained by the Company, in accordance with the terms of such plans and arrangements, except as modified herein (collectively “Accrued Benefits”). Any Accrued Compensation and Expenses to which the Executive is entitled shall be paid to the Executive in cash as soon as administratively practicable after the termination, and, in any event, no later than two and one-half (2-1/2) months after the end of the taxable year of the Executive in which the termination occurs. Any Accrued Benefits to which the Executive is entitled shall be paid to the Executive as provided in the relevant plans and arrangement.
 
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3. Covenants.
(a) Non-Competition . The Executive agrees that, during his or her employment with the Company, he or she shall not engage in any other employment, consulting or other business activity (whether full-time or part-time) that would create a conflict of interest with the Company.
(b) Cooperation and Non-Disparagement . The Executive agrees that, during the six-month period following his or her cessation of employment, he or she shall cooperate with the Company in every reasonable respect and shall use his or her best efforts to assist the Company with the transition of Executive’s duties to his or her successor. The Executive further agrees that, during this six-month period, he or she shall not in any way or by any means disparage the Company, the members of the Company’s Board of Directors or the Company’s officers and employees.
4. Definitions.
(a) “Cause” means (a) an unauthorized use or disclosure by Executive of the Company’s confidential information or trade secrets, which use or disclosure causes material harm to the Company, (b) a material breach of any agreement between Executive and the Company, (c) a material failure to comply with the Company’s written policies or rules, ( d )  conviction of, or plea of “guilty” or “no contest” to, a felony under the laws of the United States or any state thereof, (e) gross negligence or willful misconduct, (f) failure to cooperate with the Company in any investigation or formal proceeding if the Company has requested your cooperation, or (g) a continued failure to perform assigned duties after receiving written notification of such failure from the Company’s Chief Executive Officer (or, in the case of the Chief Executive Officer, from the Board of Directors); provided that Executive must be provided with written notice of Executive’s termination for “Cause” and Executive must be provided with a 30 day period following Executive’s receipt of such notice to cure the event(s) that trigger “Cause,” with the Company’s Board of Directors making the final determination whether Executive has cured any Cause.
(b) “ Code ” means the Internal Revenue Code of 1986, as amended.
(c) “Change in Control . ” For all purposes under this Agreement, “Change in Control” shall mean an “Acquisition,” as such term is defined in the Company’s 2010 Equity Incentive Plan, as may be amended from time to time, provided that the transaction also qualifies as a change in control under U.S. Treasury Regulation 1.409A-3(i)(5)(v) or 1.409A-3(i)(5)(vii).
(d) “Good Reason” means, without the Executive’s consent, (i) a material reduction in the Executive’s level of responsibility and/or scope of authority, (ii) a material reduction in Executive’s base salary (other than a reduction generally applicable to executive officers of the Company and in generally the same proportion as for the Executive), or (iii) relocation of the Executive’s principal workplace by more than 35 miles from Executive’s then current place of employment. For the purpose of clause (a), a change in responsibility shall not be deemed to occur (i) solely because Executive is part of a larger organization, or (ii) solely because of a change in title. For the Executive to receive the benefits under this Agreement as a result of a
 
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voluntary resignation under this subsection (d), all of the following requirements must be satisfied: (1) the Executive must provide notice to the Company of his or her intent to assert Good Reason within 120 days of the initial existence of one or more of the conditions set forth in subclauses (i) through (iii); (2) the Company will have 30 days from the date of such notice to remedy the condition and, if it does so, the Executive may withdraw his or her resignation or may resign with no benefits; and (3) any termination of employment under this provision must occur within six months of the initial existence of one or more of the conditions set forth in subclauses (i) through (iii). Should the Company remedy the condition as set forth above and then one or more of the conditions arises again within twelve months following the occurrence of a Change in Control, the Executive may assert Good Reason again subject to all of the conditions set forth herein.
(e) “Qualifying Termination” means a Separation within twelve (12) months following a Change in Control or within three (3) months preceding a Change in Control (if after a Potential Change in Control) resulting from (i) the Company terminates the Executive’s employment for any reason other than Cause or (ii) the Executive voluntarily resigns his or her employment for Good Reason. A “ Potential Change in Control ” means the date of execution of a definitive agreement whereby the Company will consummate a Change in Control if such transaction is consummated. In the case of a termination following a Potential Change in Control and before a Change in Control, solely for purposes of benefits under this Agreement, the date of Separation will be deemed the date the Change in Control is consummated.
(f) “Separation ” means a “separation from service,” as defined in the regulations under Section 409A of the Code.
5. Successors.
(a) Company’s Successors . The Company shall require any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets, by an agreement in substance and form satisfactory to the Executive, to assume this Agreement and to agree expressly to perform this Agreement in the same manner and to the same extent as the Company would be required to perform it in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets or which becomes bound by this Agreement by operation of law.
(b) Executive’s Successors . This Agreement and all rights of the Executive hereunder shall inure to the benefit of, and be enforceable by, the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
6. Golden Parachute Taxes.
(a) Best After-Tax Result . In the event that any payment or benefit received or to be received by Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this subsection (a), be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then,
 
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subject to the provisions of Section 6(b) hereof, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, Independent Tax Counsel 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; provided that Independent Tax Counsel shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section. In the event that Section 6(a)(ii)(B) above applies, then based on the information provided to Executive and the Company by Independent Tax Counsel, Executive may, in Executive’s sole discretion and within 30 days of the date on which Executive is provided with the information prepared by Independent Tax Counsel, determine which and how much of the Payments (including the accelerated vesting of equity compensation awards) to be otherwise received by Executive shall be eliminated or reduced (as long as after such determination the value (as calculated by Independent Tax Counsel in accordance with the provisions of Sections 280G and 4999 of the Code) of the amounts payable or distributable to Executive equals the Reduced Amount). If the Internal Revenue Service (the “IRS”) determines that any Payment is subject to the Excise Tax, then Section 6(b) hereof shall apply, and the enforcement of Section 6(b) shall be the exclusive remedy to the Company.
(b) Adjustments . If, notwithstanding any reduction described in Section 6(a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within 120 days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 6(b), Executive shall pay the Excise Tax.
 
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7. Miscellaneous Provisions.
(a) Section 409A . For purposes of Section 409A of the Code, if the Company determines that Executive is a “specified employee” under Code Section 409A(a)(2)(B)(i) at the time of a Separation, then (i) the severance benefits under Section 2, to the extent subject to Code Section 409A, will commence during the seventh month after the Executive’s Separation and (ii) will be paid in a lump sum on the earliest practicable date permitted by Section 409A(a)(2) of the Code. Any termination of Executive’s employment is intended to constitute a Separation from Service and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemption from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulation Section 1.409A-1(b)(4) (as a “short-term deferral”). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Policy is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
(b) Other Severance Arrangements . For any equity award that is outstanding on the Effective Date, Executive shall receive the vesting acceleration provisions set forth in the existing equity award agreement or the vesting acceleration benefits set forth in this Agreement, whichever arrangement would cause Executive to vest in the largest number of shares or largest portion of the Equity Award. Except as set forth in the preceding sentence, this Agreement supersedes any and all cash severance arrangements and vesting acceleration arrangements on change in control under any prior option agreement, restricted stock unit agreement, severance and salary continuation arrangements, programs and plans which were previously offered by the Company to the Executive, including change in control severance arrangements pursuant to an employment agreement or offer letter, and Executive hereby waives Executive’s rights to such other benefits. In no event shall any individual receive cash severance benefits under both this Agreement and any other severance pay or salary continuation program, plan or other arrangement with the Company.
(c) Dispute Resolution . To ensure rapid and economical resolution of any and all disputes that might arise in connection with this Agreement, Executive and the Company agree that any and all disputes, claims, and causes of action, in law or equity, arising from or relating to this Agreement or its enforcement, performance, breach, or interpretation, will be resolved solely and exclusively by final, binding, and confidential arbitration, by a single arbitrator, in San Mateo County, and conducted by Judicial Arbitration & Mediation Services, Inc. (“ JAMS ”)
 
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under its then-existing employment rules and procedures. Nothing in this section, however, is intended to prevent either party from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Each party to an arbitration or litigation hereunder shall be responsible for the payment of its own attorneys’ fees.
(d) Notice . Notices and all other communications contemplated by this Agreement shall be in writing and shall 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 or deposited with Federal Express Corporation, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address which he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary.
(e) Waiver . No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the 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 shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.
(f) Withholding Taxes . All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be withheld by law.
(g) Severability . The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
(h) No Retention Rights . Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause.
(i) Choice of Law . The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California (other than their choice-of-law provisions).
 
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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 above written.

	 		 	WOODMAN LABS, INC.	

[Name]	 		 	By:	 	Nicholas Woodman	
	 		 	Title:	 	Chief Executive Officer	

Exhibit 10.10
C HANGE IN C ONTROL S EVERANCE A GREEMENT
This Change in Control Severance Agreement (“Agreement”) is entered into as of January 17, 2014 (to become effective upon Executive’s date of hire with the Company, such hire date being the “Effective Date”) by and between Jack Lazar (the “Executive”) and WOODMAN LABS, INC., a Delaware corporation (the “Company”).
 
1.	Term of Agreement.	
This Agreement shall commence on the Effective Date and shall terminate upon the date the Executive’s employment with the Company terminates for a reason other than a Qualifying Termination as described in Section 4(e).
 
2.	Severance Benefit.	
(a) Severance Payments . If the Executive is subject to a Qualifying Termination, then, subject to Section 3 below, the Company shall pay the Executive twelve (12 months of his or her monthly base salary (at the rate in effect immediately prior to the actions that resulted in the Qualifying Termination) and an amount equal to the greater of (A) one-hundred percent (100%) of the Executive’s annual target bonus or (B) one-hundred percent (100%) of the most recent annual bonus paid by the Company to Executive. Such severance payment shall be paid in accordance with the Company’s standard payroll procedures. The Executive will receive his or her severance payment in a cash lump-sum which will be made on the sixtieth (60 th ) day following the Separation, provided that the following have already occurred:
 
 	(i)	the date of Executive’s Qualifying Termination;	
 
 	(ii)	the date of the Company’s receipt of the Executive’s executed General Release (as described in Section 2(d)); and	
 
 	(iii)	the expiration of any rescission period applicable to the Executive’s executed General Release.	
(b) Equity . If the Executive is subject to a Qualifying Termination within the first year of his employment with the Company and prior to an initial public offering of the Company’s stock (“IPO”), then, subject to Section 3 below, each of Executive’s then outstanding unvested Equity Awards, including awards that would otherwise vest only upon satisfaction of performance criteria, shall accelerate and become vested and exercisable such that the Executive is vested with respect to 25% of the shares subject thereto. If the Executive is subject to a Qualifying Termination after an IPO (regardless of how long Executive has been employed), then, subject to Section 3 below, each of Executive’s then outstanding unvested Equity Awards, including awards that would otherwise vest only upon satisfaction of performance criteria, shall accelerate and become vested and exercisable with respect to 100% of the then unvested shares subject thereto. “ Equity Awards ” means all options to purchase shares of Company common stock as well as any and all other stock-based awards granted to the Executive, including but not limited to stock bonus awards, restricted stock, restricted stock units or stock appreciation rights. Subject to Section 3, the accelerated vesting described above shall be effective as of the

Separation. All RSUs vested at the date of the Change in Control shall be settled upon or within thirty (30) days following the Change in Control; all RSUs that vest after the Change in Control shall settle within thirty (30) days of vesting.
(c) Pay in Lieu of Continued Employee Benefits . If the Executive is subject to a Qualifying Termination, in lieu of continued employee benefits (other than as statutorily required, such as COBRA continuation coverage at Executive’s own expense as required by law), Executive shall receive payments of $3,000 per month for twelve (12) months from the Separation in accordance with the payroll schedule applicable to active officers of the Company beginning on the sixtieth (60 th ) day following the Separation.
(d) General Release . Any other provision of this Agreement notwithstanding, Subsections (a), (b), and (c) above shall not apply unless the Executive (i) has executed a general release (in a form prescribed by the Company) of all known and unknown claims that he or she may then have against the Company or persons affiliated with the Company and such release has become effective and (ii) has agreed not to prosecute any legal action or other proceeding based upon any of such claims. The release must be in the form prescribed by the Company, without alterations. The Company will deliver the form to the Executive within thirty (30) days after the Executive’s Separation. The Executive must execute and return the release within the time period specified in the form.
(e) Accrued Compensation and Benefits . In connection with any termination of employment upon or following a Change in Control (whether or not a Qualifying Termination), the Company shall pay Executive’s earned but unpaid base salary and other vested but unpaid cash entitlements for the period through and including the termination of employment, including unused earned vacation pay and unreimbursed documented business expenses incurred by Executive prior to the date of termination (collectively “Accrued Compensation and Expenses”), as required by law and the applicable Company plan or policy. In addition, Executive shall be entitled to any other vested benefits earned by Executive for the period through and including the termination date of Executive’s employment under any other employee benefit plans and arrangements maintained by the Company, in accordance with the terms of such plans and arrangements, except as modified herein (collectively “Accrued Benefits”). Any Accrued Compensation and Expenses to which the Executive is entitled shall be paid to the Executive in cash as soon as administratively practicable after the termination, and, in any event, no later than two and one-half (2-1/2) months after the end of the taxable year of the Executive in which the termination occurs. Any Accrued Benefits to which the Executive is entitled shall be paid to the Executive as provided in the relevant plans and arrangement.
 
3.	Covenants.	
(a) Non-Competition . The Executive agrees that, during his or her employment with the Company, he or she shall not engage in any other employment, consulting or other business activity (whether full-time or part-time) that would create a conflict of interest with the Company.
(b) Cooperation and Non-Disparagement . The Executive agrees that, during the six-month period following his or her cessation of employment, he or she shall cooperate with the Company in every reasonable respect and shall use his or her best efforts to assist the
 
2

Company with the transition of Executive’s duties to his or her successor. The Executive further agrees that, during this six-month period, he or she shall not in any way or by any means disparage the Company, the members of the Company’s Board of Directors or the Company’s officers and employees.
 
4.	Definitions.	
(a) “Cause” means (a) an unauthorized use or disclosure by Executive of the Company’s confidential information or trade secrets, which use or disclosure causes material harm to the Company, (b) a material breach of any agreement between Executive and the Company, (c) a material failure to comply with the Company’s written policies or rules, (d) conviction of, or plea of “guilty” or “no contest” to, a felony under the laws of the United States or any state thereof, (e) gross negligence or willful misconduct, (f) failure to cooperate with the Company in any investigation or formal proceeding if the Company has requested your cooperation, or (g) a continued failure to perform assigned duties after receiving written notification of such failure from the Company’s Chief Executive Officer (or, in the case of the Chief Executive Officer, from the Board of Directors); provided that Executive must be provided with written notice of Executive’s termination for “Cause” and Executive must be provided with a 30-day period following Executive’s receipt of such notice to cure the event(s) that trigger “Cause,” with the Company’s Board of Directors making the final determination whether Executive has cured any Cause.
(b) “Code” means the Internal Revenue Code of 1986, as amended.
(c) “Change in Control.” For all purposes under this Agreement, “Change in Control” shall mean an “Acquisition,” as such term is defined in the Company’s 2010 Equity Incentive Plan, as may be amended from time to time, provided that the transaction also qualifies as a change in control under U.S. Treasury Regulation 1.409A-3(i)(5)(v) or 1.409A-3(i)(5)(vii).
(d) “Good Reason” means, without the Executive’s consent, (i) a material reduction in the Executive’s level of responsibility and/or scope of authority, (ii) a material reduction in Executive’s base salary (other than a reduction generally applicable to executive officers of the Company and in generally the same proportion as for the Executive), or (iii) relocation of the Executive’s principal workplace by more than 35 miles from Executive’s then current place of employment. For the Executive to receive the benefits under this Agreement as a result of a voluntary resignation under this subsection (d), all of the following requirements must be satisfied: (1) the Executive must provide notice to the Company of his or her intent to assert Good Reason within 120 days of the initial existence of one or more of the conditions set forth in subclauses (i) through (iii); (2) the Company will have 30 days from the date of such notice to remedy the condition and, if it does so, the Executive may withdraw his or her resignation or may resign with no benefits; and (3) any termination of employment under this provision must occur within six months of the initial existence of one or more of the conditions set forth in subclauses (i) through (iii). Should the Company remedy the condition as set forth above and then one or more of the conditions arises again within twelve months following the occurrence of a Change in Control, the Executive may assert Good Reason again subject to all of the conditions set forth herein.
 
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(e) “Qualifying Termination” means a Separation within twelve (12) months following a Change in Control or within three (3) months preceding a Change in Control (if after a Potential Change in Control) resulting from (i) the Company terminates the Executive’s employment for any reason other than Cause or (ii) the Executive voluntarily resigns his or her employment for Good Reason. A “Potential Change in Control” means the date of execution of a definitive agreement whereby the Company will consummate a Change in Control if such transaction is consummated. In the case of a termination following a Potential Change in Control and before a Change in Control, solely for purposes of benefits under this Agreement, the date of Separation will be deemed the date the Change in Control is consummated.
(f) “Separation” means a “separation from service,” as defined in the regulations under Section 409A of the Code.
 
5.	Successors.	
(a) Company’s Successors . The Company shall require any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets, by an agreement in substance and form satisfactory to the Executive, to assume this Agreement and to agree expressly to perform this Agreement in the same manner and to the same extent as the Company would be required to perform it in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets or which becomes bound by this Agreement by operation of law.
(b) Executive’s Successors . This Agreement and all rights of the Executive hereunder shall inure to the benefit of, and be enforceable by, the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
 
6.	Golden Parachute Taxes.	
(a) Best After-Tax Result . In the event that any payment or benefit received or to be received by Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this subsection (a), be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of Section 6(b) hereof, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, Independent Tax Counsel
 
4

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; provided that Independent Tax Counsel shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section. In the event that Section 6(a)(ii)(B) above applies, then based on the information provided to Executive and the Company by Independent Tax Counsel, Executive may, in Executive’s sole discretion and within 30 days of the date on which Executive is provided with the information prepared by Independent Tax Counsel, determine which and how much of the Payments (including the accelerated vesting of equity compensation awards) to be otherwise received by Executive shall be eliminated or reduced (as long as after such determination the value (as calculated by Independent Tax Counsel in accordance with the provisions of Sections 280G and 4999 of the Code) of the amounts payable or distributable to Executive equals the Reduced Amount). If the Internal Revenue Service (the “IRS”) determines that any Payment is subject to the Excise Tax, then Section 6(b) hereof shall apply, and the enforcement of Section 6(b) shall be the exclusive remedy to the Company.
(b) Adjustments . If, notwithstanding any reduction described in Section 6(a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within 120 days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 6(b), Executive shall pay the Excise Tax.
 
7.	Miscellaneous Provisions.	
(a) Section 409A . For purposes of Section 409A of the Code, if the Company determines that Executive is a “specified employee” under Code Section 409A(a)(2)(B)(i) at the time of a Separation, then (1) the severance benefits under Section 2, to the extent subject to Code Section 409A, will commence during the seventh month after the Executive’s Separation and (ii) will be paid in a lump sum on the earliest practicable date permitted by Section 409A(a)(2) of the Code. Any termination of Executive’s employment is intended to constitute a Separation from Service and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemption from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulation Section 1.409A-1(b)(4) (as a “short-term deferral”). To the extent that any provision of this
 
5

Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Policy is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
(b) Other Severance Arrangements . For any equity award that is outstanding on the Effective Date, Executive shall receive the vesting acceleration provisions set forth in the existing equity award agreement or the vesting acceleration benefits set forth in this Agreement, whichever arrangement would cause Executive to vest in the largest number of shares or largest portion of the Equity Award. Except as set forth in the preceding sentence, this Agreement supersedes any and all cash severance arrangements and vesting acceleration arrangements on change in control under any prior option agreement, restricted stock unit agreement, severance and salary continuation arrangements, programs and plans which were previously offered by the Company to the Executive, including change in control severance arrangements pursuant to an employment agreement or offer letter, and Executive hereby waives Executive’s rights to such other benefits. In no event shall any individual receive cash severance benefits under both this Agreement and any other severance pay or salary continuation program, plan or other arrangement with the Company.
(c) Dispute Resolution . To ensure rapid and economical resolution of any and all disputes that might arise in connection with this Agreement, Executive and the Company agree that any and all disputes, claims, and causes of action, in law or equity, arising from or relating to this Agreement or its enforcement, performance, breach, or interpretation, will be resolved solely and exclusively by final, binding, and confidential arbitration, by a single arbitrator, in San Mateo County, and conducted by Judicial Arbitration & Mediation Services, Inc. (“ JAMS ”) under its then-existing employment rules and procedures. Nothing in this section, however, is intended to prevent either party from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Each party to an arbitration or litigation hereunder shall be responsible for the payment of its own attorneys’ fees.
(d) Notice . Notices and all other communications contemplated by this Agreement shall be in writing and shall 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 or deposited with Federal Express Corporation, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address which he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary.
 
6

(e) Waiver . No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the 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 shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.
(f) Withholding Taxes . All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be withheld by law.
(g) Severability . The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
(h) No Retention Rights . Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause.
(i) Choice of Law . The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California (other than their choice-of-law provisions).
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 above written.

	 		  	WOODMAN LABS, INC.	
			
/s/ Jack Lazar	 		  	/s/ Nicholas Woodman	
Jack Lazar	 		  	By:        Nicholas Woodman	
	 		  	Title:     Chief Executive Officer	
 
7

Exhibit 10.11

December 28, 2011
Nicholas Woodman
[omitted]
 
Re:	Agreement to Contribute Stock	
Dear Nicholas:
Reference is made to (a) that certain letter agreement entitled Agreements with Respect to Compensation (“ Dana Letter Agreement ”), of even date herewith, by and between Nicholas Woodman (“ Woodman ”) and Neil Dana (“ Dana ”) and (b) that certain Stock Option Agreement, dated June 28, 2011 (the “ Option Agreement ”), by and between Woodman Labs, Inc. (the “ Company ”) and Dana, pursuant to which Dana was granted an option to purchase 2,194,809 shares of the Company’s Common Stock (the “ Shares ”).
WHEREAS, on the date hereof, Woodman and Dana have entered into the Dana Letter Agreement.
WHEREAS, on the date hereof, Woodman is Co-Trustee with Jill R. Woodman of the Woodman Family Trust under Trust Agreement dated March 11, 2011 (the “ Trust ”) and Woodman intends to honor his obligations under the Dana Letter Agreement through shares of Common Stock held by the Trust.
WHEREAS, should Dana ever exercise any of the Shares subject to the Option Agreement, Woodman desires to contribute back to the Company an equal number of shares of Common Stock owned by Woodman or the Trust and the Company desires for Woodman or the Trust to do the same.
NOW, THEREFORE, In consideration of the promises and the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the parties hereto agree as follows:
1. Contribution . Woodman (“ Woodman ”), the Chief Executive Officer of the Company, shall, immediately upon the exercise (or each exercise if the Shares subject to the Option Agreement are exercised in portions) (in such case or each case, an “ Exercise ”) of any of the Shares subject to the Option Agreement, contribute and transfer, or will cause to be contributed and transferred by the Trust, to the Company, without any cost or charge to the Company, a number of shares of the Company’s Common Stock owned directly or indirectly by Woodman equal to the number of shares of Common Stock issued to Dana upon the Exercise (such contribution, the “ Contribution ”). Furthermore, Woodman, the Trust and the Company hereby agree that, to consummate such Contribution, Woodman, the Trust and the Company shall execute and deliver to the Company a completed and executed Contribution Agreement in substantially the form attached hereto as Exhibit A .

2. Miscellaneous . The agreements contained in this Agreement shall be construed and interpreted in accordance with the laws of the State of California and, in the event that any provision of this Agreement is held by a tribunal of competent jurisdiction to be unenforceable or contrary to law, the remaining provisions of this Agreement shall remain in full force and effect This Agreement contains the entire agreement between Woodman, the Trust and the Company regarding the matters addressed herein. All prior agreements and understandings, oral agreements and writings, are expressly suspended hereby and are of no further force or effect. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. This Agreement may be amended and the observance of any term hereof may be waived only with the written consent of each party hereto.

Sincerely,	
	
WOODMAN LABS, INC. (d/b/a GOPRO)	
	
/s/ Kurt Amundson	
Kurt Amundson, Chief Financial Officer	
READ, UNDERSTOOD, AND AGREED

	  		  		  	Woodman Family Trust under Trust Agreement dated March 11, 2011	
					
	  		  		  	By:	  	/s/ Nicholas Woodman	
	  		  		  		  	Nicholas D. Woodman
Co-Trustee	
					
	  		  		  	By:	  	/s/ Jill Woodman	
	  		  		  		  	Jill R. Woodman
Co-Trustee	
						
/s/ Nicholas Woodman	  		  		  	Date:	  	 	  		
Nicholas D. Woodman	  		  		  		  		  		
 
2

Exhibit A
Form of Contribution Agreement
 
3

WOODMAN LABS, INC.
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this “ Agreement ”) is made and entered into as of             , by and among Woodman Labs, Inc. (d/b/a GoPro), a California corporation (the “ Company ”), Nicholas Woodman and Jill R. Woodman, as Co-Trustees of the Woodman Family Trust under Trust Agreement dated March 11, 2011 (the “ Contributor ”) and Nicholas Woodman, an individual
RECITALS
WHEREAS , Contributor wishes to contribute and transfer, without any cost or charge to the Company,             shares of Company Common Stock to the Company held by the Contributor (the “ Contributed Shares ”), leaving Contributor with             shares of Common Stock of the Company immediately following such transfer.
WHEREAS, the Company desires to accept the Contributed Shares as a contribution to the capital of the Company.
AGREEMENT
NOW, THEREFORE , in consideration of the promises and the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Agreement to Contribute . As of the date hereof, the Contributor shall contribute and transfer to the Company, without any cost or charge to the Company,             shares of Common Stock. Concurrently with the execution of this Agreement, the Contributor shall deliver to the Company (i) a duly executed blank Assignment Separate from Certificate (in the form attached hereto as Exhibit A ) with respect to the Contributed Shares; (ii) the share certificate(s) representing the Contributed Shares, if in Contributor’s possession, or otherwise authorizes Company to remove such share certificate(s) from escrow for cancellation and reissuance, provided that a stock certificate has been issued; and (iii) an executed copy of this Agreement.
2. Acknowledgement . Contributor acknowledges that from and after the execution of this Agreement, the Company is the owner of all right, title and interest in and to the Contributed Shares. Contributor shall not at any time do or suffer to be done any act or thing which may materially adversely affect any rights of the Company in and to the Contributed Shares.
3. Representations and Warranties . The Contributor represents and warrants that: (i) it has good title to the shares it is contributing to the Company pursuant to this Agreement, (ii) it has all necessary power and authority to enter into and perform this Agreement, and (iii) this Agreement constitutes a valid and binding obligation which is enforceable against such Contributor in accordance with its terms.
 
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4. Disclosure of Information . The Contributor believes it has received all the information it considers necessary or appropriate for deciding whether to contribute shares of Common Stock to the Company pursuant to this Agreement. The Contributor further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the business, properties, prospects and financial condition of the Company.
5. Specific Enforcement . It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of this Agreement by any party, that this Agreement shall be specifically enforceable, and that any breach or threatened breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach. In any action, proceeding or dispute, with or without litigation, arising out of this Agreement, the successful party therein, regardless of whether the matter is pursued to judgment or is voluntarily dismissed, shall be entitled to recover from the other party thereto the reasonable attorneys’ and paralegals’ fees and all other expenses and/or costs incurred by the successful party in connection therewith.
6. Amendments and Waivers . Any term hereof may be amended and the observance of any term hereof may be waived only with the written consent of each party hereto. Any amendment or waiver so effected shall be binding upon the Company and the Contributor and any assignee or transferee thereof.
7. Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement
8. Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of California as applied to agreements among California residents made and to be performed entirely with the State of California.
9. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument
10. Captions . The captions, headings and arrangements used in this Agreement are for convenience only and do not in any way limit or amplify the terms and provisions hereof.
11. Entire Agreement . This Agreement contains the entire understanding of the Parties and there are not further or other agreements or understandings, written or oral, in effect between the Parties relating to the subject matter hereof except as expressly referred to herein.
[S IGNATURE P AGE F OLLOWS ]
 
5

EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
 
6

ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, Nicholas D. Woodman hereby irrevocably assigns and transfers unto Woodman Labs, Inc. (the “ Company ”)             shares of Company’s Common Stock standing in his name on the books of the Company represented by Certificate Number CS-            herewith and does hereby irrevocably constitute and appoint Fenwick & West LLP his attorney-in-fact to transfer such stock on the books of the Company with full power of substitution in the premises.
Dated:                                     

NICHOLAS D. WOODMAN	

This Assignment Separate from Certificate was executed in conjunction with the terms of the Contribution Agreement by and between the above assignor and Woodman Labs, Inc. of even date herewith.
 
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Exhibit 10.12
OFFICE LEASE AGREEMENT
BETWEEN
LOCON SAN MATEO, LLC, a Delaware limited liability company
(“LANDLORD”)
AND
WOODMAN LABS, INC., a California corporation
(“TENANT”)

TABLE OF CONTENTS

 	  	 	  	Page	 	
			
1.	  	Basic Lease Information.	  	 	1	  	
			
2.	  	Lease Grant.	  	 	5	  	
			
3.	  	Adjustment of Commencement Date; Possession.	  	 	5	  	
			
4.	  	Rent.	  	 	6	  	
			
5.	  	Compliance with Laws; Use.	  	 	7	  	
			
6.	  	Security Deposit.	  	 	8	  	
			
7.	  	Services to be Furnished by Landlord.	  	 	8	  	
			
8.	  	Premises Improvements.	  	 	9	  	
			
9.	  	Repairs and Alterations.	  	 	10	  	
			
10.	  	Use of Electrical Services by Tenant.	  	 	11	  	
			
11.	  	Entry by Landlord.	  	 	11	  	
			
12.	  	Assignment and Subletting.	  	 	12	  	
			
13.	  	Liens.	  	 	14	  	
			
14.	  	Indemnity and Waiver of Claims.	  	 	14	  	
			
15.	  	Insurance	  	 	15	  	
			
16.	  	Subrogation.	  	 	17	  	
			
17.	  	Casualty Damage.	  	 	17	  	
			
18.	  	Condemnation.	  	 	19	  	
			
19.	  	Events of Default.	  	 	19	  	
			
20.	  	Remedies.	  	 	20	  	
			
21.	  	Limitation of Liability.	  	 	22	  	
			
22.	  	No Waiver.	  	 	22	  	
			
23.	  	Quiet Enjoyment.	  	 	22	  	
			
24.	  	Location.	  	 	22	  	
			
25.	  	Holding Over.	  	 	22	  	
			
26.	  	Subordination to Mortgages; Estoppel Certificate.	  	 	23	  	
			
27.	  	Attorneys’ Fees.	  	 	23	  	
			
28.	  	Notice.	  	 	23	  	
			
29.	  	Excepted Rights.	  	 	24	  	
			
30.	  	Surrender of Premises.	  	 	24	  	
 
i

							
			
31.	  	Miscellaneous.	  	 	25	  	
			
32.	  	Waiver of Jury Trial	  	 	27	  	
			
33.	  	Entire Agreement.	  	 	29	  	
			
34.	  	Option to Renew.	  	 	29	  	
			
35.	  	Letter of Credit.	  	 	31	  	
			
36.	  	Signage.	  	 	35	  	
 
ii

OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the “ Lease ”) is made and entered into as of November 1, 2011, by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”) and WOODMAN LABS, INC. , a California corporation (“ Tenant ”).
1. Basic Lease Information .
A. “ Building ” or “ Buildings ” shall mean, as applicable, the building located at 3000E Clearview Way and commonly known as Building E (“ Building E ”) and/or the building located at 3000F Clearview Way and commonly known as Building F (“ Building F ”), San Mateo, California.
B. “ Premises ” shall mean Building E and Building F, consisting of the following spaces, which shall be delivered in phases as more particularly described below: (i) 30,290 rentable square feet comprising the second and third floors of Building E (the “ Initial E Premises ”), and 15,145 rentable square feet comprising the first floor of Building E (“ Additional E Premises ”) (the Initial E Premises and the Additional E Premises are sometimes collectively referred to herein as the “ E Premises ”), (ii) 18,947 rentable square feet comprising the first floor of Building F (“ Initial F Premises ”), and (iii) 18,275 rentable square feet comprising the second floor of Building F (“ Additional F Premises ”). All corridors and restroom facilities located on such full floor(s) shall be considered part of the Premises.
C. “ Base Rent ”:
Base Rent for Building E:

Period	  	Rentable
Square Footage	 	  	Monthly Rate
Per Square
Foot	 	  	Annual Base
Rent	 	  	Monthly Base
Rent	 	
Month 1 — *Month 6	  	 	30,290	  	  	$	2.30	  	  	$	836,004.00	  	  	$	69,667.00	  	
Month 7— Month 12	  	 	45,435	  	  	$	2.30	  	  	$	1,254,006.00	  	  	$	104,500.50	  	
Month 13 — Month 24	  	 	45,435	  	  	$	2.40	  	  	$	1,308,528.00	  	  	$	109,044.00	  	
Month 25 — Month 36	  	 	45,435	  	  	$	2.50	  	  	$	1,363,050.00	  	  	$	113,587.50	  	
Month 37 — Month 48	  	 	45,435	  	  	$	2.60	  	  	$	1,417,572.00	  	  	$	118,131.00	  	
Month 49 — Month 60	  	 	45,435	  	  	$	2.70	  	  	$	1,472,094.00	  	  	$	122,674.50	  	
Month 61 — Month 72	  	 	45,435	  	  	$	2.80	  	  	$	1,526,616.00	  	  	$	127,218.00	  	
Month 73 — Month 84	  	 	45,435	  	  	$	2.90	  	  	$	1,581,138.00	  	  	$	131,761.50	  	
 
*	Possession of the entire E Premises shall be delivered to Tenant on the E Premises Commencement Date (defined below) provided however that during the first six (6) months of the Term (defined below) the Monthly Base rent shall be $69,667.00 per month. Notwithstanding the foregoing, Tenant shall be obligated to pay Additional Rent for the entire E Premises starting on the E Premises Commencement Date (defined below), and except as provided above with respect to Base Rent, Tenant acknowledges and agrees that Tenant shall be responsible for all of its other obligations and liabilities with respect to the entire Premises pursuant to the terms of the Lease commencing on the E Premises Commencement Date.	

Base Rent for Building F:

Period	  	Rentable
Square Footage	 	  	Monthly Rate
Per Square
Foot	 	  	Annual Base
Rent	 	  	Monthly Base
Rent	 	
Initial F Premises Commencement Date—*	  	 	18,947	  	  	$	2.40	  	  	$	545,673.60	  	  	$	45,472.80	  	
 
*	One day prior to the Additional F Premises Commencement Date.	
Base Rent for Building F:

Period	  	Rentable
Square Footage	 	  	Monthly Rate
Per Square
Foot	 	  	Annual Base
Rent	 	  	Monthly Base
Rent	 	
* — Month 24**	  	 	37,222	  	  	$	2.40	  	  	$	1,071,993.60	  	  	$	89,332.80	  	
Month 25 — Month 36	  	 	37,222	  	  	$	2.50	  	  	$	1,116,660.00	  	  	$	93,055.00	  	
Month 37 — Month 48	  	 	37,222	  	  	$	2.60	  	  	$	1,161,326.40	  	  	$	96,777.20	  	
Month 49 — Month 60	  	 	37,222	  	  	$	2.70	  	  	$	1,205,992.80	  	  	$	100,499.40	  	
Month 61 — Month 72	  	 	37,222	  	  	$	2.80	  	  	$	1,250,659.20	  	  	$	104,221.60	  	
Month 73 — Month 84	  	 	37,222	  	  	$	2.90	  	  	$	1,295,325.60	  	  	$	107,943.80	  	
 
*	The Additional F Premises Commencement Date	
**	The references to month(s) refer to the number of months following the E Premises Commencement Date such that all Premises are coterminous (i.e., Month 24 is the twenty-fourth month following the E Premises Commencement Date and not the Additional F Premises Commencement Date).	
D. “ Tenant’s Share ”:
66.67% of Building E and 11.33% of the Project for the Initial E Premises
100% of Building E and 17.00% of the Project for the initial E Premises and the Additional E Premises, collectively
50.90% of Building F and 7.09% of the Project for the Initial F Premises
100.0% of Building F and 13.93% of the Project for the Initial F’ Premises and the Additional F Premises, collectively
“ Tenant’s Monthly Expense and Tax Payment ”: $1.10 per rentable square foot of the Premises per month, which is Tenant’s Share of the monthly estimated Expenses and monthly estimated Taxes (as more fully described in, and subject to adjustment as described in, Article 4 below).
E. “ Term ”: A period of 84 months. The Term of this Lease shall commence on the date (the “E Premises Commencement Date”) that the Tenant Improvements (defined in Section 1.M.) in the Initial E Premises are Substantially Completed (defined in Section 3.A), which is estimated to occur on February 15, 2012 and, unless terminated early in accordance with this Lease, shall end the last day of the 84th full calendar month thereafter (the “ Termination Date ”). The Term of this Lease for the Initial F Premises and the Additional F Premises, as applicable, shall begin on the date that Landlord shall tender possession of the Initial F Premises
 
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or Additional F Premises, as applicable (which are estimated to occur on March 1, 2013 and August 1, 2013, respectively) (the “ Initial F Premises Commencement Date ” and the “ Additional F Premises Commencement Date ”, respectively), to Tenant with the applicable Tenant Improvements Substantially Complete, and shall terminate on the Termination Date, unless sooner terminated by the provisions of this Lease. The E Premises Commencement Date shall be the “ Commencement Date ” as used in this Lease, except that with respect to obligations that are specific to the Initial F Premises or the Additional F Premises, the “Commencement Date” shall mean the Initial F Premises Commencement Date or the Additional F Premises Commencement Date, as applicable. Landlord’s failure to Substantially Complete the Tenant Improvements in the applicable portion of the Premises by any estimated Commencement Date shall not be a default by Landlord or otherwise render Landlord liable for damages. Promptly after the determination of each Commencement Date, Landlord and Tenant shall enter into a commencement letter agreement substantially in the form attached hereto as Exhibit C.
F. Tenant allowance(s) : $50.00 per rentable square foot of the Premises.
G. “ Security Deposit ”: None, subject to the terms of Section 35 below.
H. “ Guarantor(s) ”: None.
I. “ Broker(s) ”: Cassidy Turley BT Commercial representing Landlord and Kidder Mathews representing Tenant.
J. “ Permitted Use ”: General office use, research and development for the production of camera equipment and for purposes incidental thereto and, subject to Landlord’s prior written approval, any other lawful purpose consistent with the uses permitted by comparable landlords of comparable space in comparable projects in the vicinity of the Project.
K. “ Notice Addresses ”:
Tenant:
On and after the Commencement Date, notices shall be sent to Tenant at the Premises. Prior to the Commencement Date, notices shall be sent to Tenant at the following address:
Woodman Labs, Inc.
2450 South Cabrillo Highway, Suite 250
Half Moon Bay, CA 94019
Attention: Kurt Amundson, CFO
Email: kamundson@gopro.com
Phone #: (415) 738-2480
Fax #: (480) 275-3094
 
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Landlord:	  	With a copy to:	
		
Lowe Enterprises Real Estate Group
3155 Clearview Way
San Mateo, California 94402
Attention: Harms Lee, Senior Vice President	  	Lowe Enterprises Real Estate Group
1516 Kimberly Avenue
Fullerton, California 92821
Attention: Vickie Ivey, Vice President	
		
	  	And to:	
		
Rent (defined in Section 4.A) is payable to the order of Landlord at the following address:	  		
		
LOCON San Mateo LLC
P.O. Box 511363
Los Angeles, California 90051-7918	  	Lowe Enterprises
11777 San Vicente Boulevard, 9th Floor
Los Angeles, California 90049
Attention: John DeMarco, Senior Vice President, Corporate Counsel	
L. “ Business Day(s) ” are Monday through Friday of each week, exclusive of New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day (“ Holidays ”). Landlord may designate additional Holidays, provided that the additional Holidays are commonly recognized by other office buildings in the area where the Building is located.
M. “ Tenant Improvements ” means the Building E Tenant Improvements and/or the Building F Tenant Improvements, as applicable, that Landlord is obligated to perform in the Premises pursuant to a separate work letter agreements (each, a “ Work Letter ”) attached as Exhibits D-1 and D-2.
N. “ Law(s) ” means all applicable statutes, codes, ordinances, orders, rules and regulations of any municipal or governmental entity.
O. “ Normal Business Hours ” for the Building are 8:00 A.M. to 6:00 P.M. on Business Days.
P. “ Property ” means the Building and the parcel(s) of land on which it is located and, at Landlord’s discretion, the landscaping, the parking facilities and all other improvements owned by Landlord and serving the Building and the tenants thereof and the parcel(s) of land on which they are located.
Q. “ Project ” means the project, if any, in which the Building is located.
R. “ Exterior Common Areas ” mean those areas of the Project and/or the Property which are not located within the Building or any other building and which are provided and maintained for the use and benefit of Landlord and tenants of the Building and/or the Project generally and the employees, invitees and licensees of Landlord and such tenants, including, without limitation, any parking garage, artificial lakes, walkways, plaza, roads, driveways, sidewalks, surface parking and landscapes, if any.
 
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S. “ Letter of Credit ”: $1,300,000.00, in accordance with the terms of Section 35 below.
2. Lease Grant .
Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord, together with the right in common with others to use any portions of the Property that are designated by Landlord for the common use of tenants and others, such as sidewalks, unreserved parking areas, common corridors, elevator foyers, restrooms, vending areas and lobby areas (the “Common Areas”). Landlord also has the right to make changes to the Common Areas as Landlord deems reasonably appropriate, provided the changes do not materially affect Tenant’s ability to access the Premises or to use the Premises for the Permitted Use.
3. Adjustment of Commencement Date; Possession .
A. The Tenant Improvements shall be deemed to be “ Substantially Complete ” on the date that all Tenant Improvements have been performed, other than any details of construction, mechanical adjustment or any other similar matter, the noncompletion of which does not materially interfere with Tenant’s use of the Premises. However, if Landlord is delayed in the performance of the Tenant Improvements as a result of any Tenant Delay(s) (defined below), the Tenant Improvements shall be deemed to be Substantially Complete on the date that Landlord could reasonably have been expected to Substantially Complete the Tenant Improvements absent any Tenant Delay. “Tenant Delay” means any act or omission of Tenant or any Tenant’s Parties that delays the substantial completion of the Tenant Improvements, including, without limitation: (1) Tenant’s failure to furnish information or approvals within any time period specified in this Lease, including the failure to prepare or approve preliminary or final plans by any applicable due date; (2) Tenant’s selection of equipment or materials that have long lead times after first being informed by Landlord that the selection may result in a delay; (3) changes requested or made by Tenant to previously approved plans and specifications; (4) performance of work in the Premises by Tenant or Tenant’s contractor(s) during the performance of the Tenant Improvements; or (5) if the performance of any portion of the Tenant Improvements depends on the prior or simultaneous performance of work by Tenant, a delay by Tenant or Tenant’s contractor(s) in the completion of such work.
B. Subject to Landlord’s obligation to perform Tenant Improvements and deliver the Buildings consistent with the warm shell specifications described in Exhibit D-3 and Landlord’s obligations under Section 9.B., the Premises are accepted by Tenant in “as is” condition and configuration. By taking possession of the Premises, Tenant agrees that the Premises are in good order and satisfactory condition, and that there are no representations or warranties by Landlord regarding the condition of the Premises, the Building or the Project, provided that, notwithstanding anything contained in this Lease to the contrary, Landlord agrees that the base Building electrical, heating, ventilation and air conditioning and plumbing systems located in the Premises shall be in good working order as of the date Landlord delivers possession of the applicable portion of the Premises to Tenant (e.g., electrical, plumbing, HVAC, and sewer). Except to the extent caused by the acts or omissions of Tenant or any Tenant Parties or by any alterations or improvements performed by or on behalf of Tenant (other than the work performed by Landlord), if such systems are not in good working order as of the date possession of the
 
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applicable portion of the Premises is delivered to Tenant and Tenant provides Landlord with notice of the same within ninety (90) days following the date Landlord delivers possession of the Premises to Tenant, Landlord shall be responsible for repairing or restoring the same at Landlord’s sole cost and expense. If Landlord is delayed delivering possession of the Premises or any other space due to the holdover or unlawful possession of such space by any party, Landlord shall use reasonable efforts to obtain possession of the space. If Landlord is not required to Substantially Complete Tenant Improvements before the Commencement Date, the Commencement Date shall be postponed until the date Landlord delivers possession of the Premises to Tenant free from occupancy by any party, and the Termination Date, at the option of Landlord, may be postponed by an equal number of days. If Landlord is required to Substantially Complete Tenant Improvements before the Commencement Date, the Commencement Date and Termination Date shall be determined by Section 1.F.
C. Subject to the terms of this Section and provided that this Lease has been fully executed by all parties and Tenant has delivered all prepaid rental, the Letter of Credit, and insurance certificates required hereunder, Landlord grants Tenant the right to enter the applicable portion of the Premises approximately thirty (30) days prior to Landlord’s reasonable estimate of the applicable Commencement Date, at Tenant’s sole risk, solely for the purpose of installing telecommunications and data cabling, equipment, furnishings and other personalty. Such possession prior to the Commencement Date shall be subject to all of the terms and conditions of this Lease, except that Tenant shall not be required to pay Base Rent with respect to the period of time prior to the Commencement Date during which Tenant occupies the Premises solely for such purposes. However, Tenant shall be liable for Tenant’s Share of Expenses and Taxes and any utilities or special services provided to Tenant during such period. Notwithstanding the foregoing, if Tenant takes possession of the Premises before the Commencement Date for any purpose other than as expressly provided in this Section, such possession shall be subject to the terms and conditions of this Lease and Tenant shall pay Base Rent, Tenant’s Share of Expenses and Taxes, and any other charges payable hereunder to Landlord for each day of possession before the applicable Commencement Date. Said early possession shall not advance the Termination Date. Landlord may withdraw such permission to enter the Premises prior to the applicable Commencement Date at any time that Landlord reasonably determines that such entry by Tenant is causing a dangerous situation for Landlord, Tenant or their respective contractors or employees, or if Landlord reasonably determines that such entry by Tenant is hampering or otherwise preventing Landlord from proceeding with the completion of the Building E Tenant Improvements or the Building F Tenant Improvements described in Exhibits D-1 and D-2 at the earliest possible date.
4. Rent .
A. Payments . As consideration for this Lease, Tenant shall pay Landlord, without any notice, setoff or deduction, the total amount of Base Rent and Additional Rent due for the Term. “Additional Rent” means all sums (exclusive of Base Rent) that Tenant is required to pay Landlord under this Lease. Additional Rent and Base Rent are sometimes collectively referred herein to as “Rent”. Tenant shall pay and be liable for all rental, sales and use taxes (but excluding income taxes), if any, imposed upon or measured by Rent under applicable Law. Commencing on the applicable Commencement Date, Base Rent and recurring monthly charges of Additional Rent shall be due and payable in advance on the first day of each calendar month
 
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without notice or demand, provided that the installment of Base Rent and Tenant’s Monthly Expense and Tax Payment (defined in Section 1.E. above) for the first full calendar month of the Term shall be payable upon the execution of this Lease by Tenant. All other items of Rent shall be due and payable by Tenant on or before 30 days after billing by Landlord. All payments of Rent shall be by good and sufficient check or by other means (such as automatic debit or electronic transfer) acceptable to Landlord. If Tenant fails to pay any item or installment of Rent when due, Tenant shall pay Landlord an administration fee equal to 5% of the past due Rent. If the Term commences on a day other than the first day of a calendar month or terminates on a day other than the last day of a calendar month, the monthly Base Rent and Tenant’s Share of Expenses (defined in Section 4.C.) and Taxes (defined in Section 4.D.) for the month shall be prorated based on the number of days in such calendar month. Landlord’s acceptance of less than the correct amount of Rent shall be considered a payment on account of the earliest Rent due. No endorsement or statement on a check or letter accompanying a check or payment shall be considered an accord and satisfaction, and either party may accept the check or payment without prejudice to that party’s right to recover the balance or pursue other available remedies. Tenant’s covenant to pay Rent is independent of every other covenant in this Lease.
B. Payment of Tenant’s Share of Expenses and Taxes . Tenant shall pay Tenant’s Share of the total amount of Expenses and Taxes for each calendar year during the Term in accordance with Exhibit E hereto.
5. Compliance with Laws; Use .
The Premises shall be used only for the Permitted Use and for no other use whatsoever. Tenant shall not use or permit the use of the Premises for any purpose which is illegal, dangerous to persons or property or which, in Landlord’s reasonable opinion, unreasonably disturbs any other tenants of the Building or the Project or interferes with the operation of the Building or the Project. Tenant shall comply with all Laws, including the Americans with Disabilities Act, regarding the operation of Tenant’s business and the use, condition, configuration and occupancy of the Premises. In addition, Tenant shall, at its sole cost and expense, promptly comply with any Laws that relate to the “ Base Building ” (defined below), but only to the extent such obligations are triggered by Tenant’s particular use of the Premises, other than for general office use or for research and development use for the production of camera equipment, or Alterations or improvements in the Premises performed or requested by Tenant. “Base Building” shall include the structural portions of the Building, the public restrooms and the Building mechanical, electrical and plumbing systems and equipment located in the internal core of the Building on the floor or floors on which the Premises are located. Tenant shall promptly provide Landlord with copies of any notices it receives regarding an alleged violation of Law. Tenant shall not exceed the legal density limit for the Building. Tenant, within 10 days after receipt, shall provide Landlord with copies of any notices it receives regarding a violation or alleged violation of any Laws. Tenant shall comply with the rules and regulations of the Building attached as Exhibit B and such other reasonable rules and regulations adopted by Landlord from time to time. Tenant shall also cause its agents, contractors, subcontractors, employees, customers, and subtenants to comply with all rules and regulations. Landlord shall not knowingly discriminate against Tenant in Landlord’s enforcement of the rules and regulations.
 
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6. Security Deposit .
Subject to the terms of Article 35 below, the Security Deposit, if any, shall be delivered to Landlord upon the execution of this Lease by Tenant and shall be held by Landlord without liability for interest (unless required by Law) as security for the performance of Tenant’s obligations. The Security Deposit is not an advance payment of Rent or a measure of Tenant’s liability for damages. The amount of the Security Deposit shall be subject to reduction in the manner and at the times specified as though it were a Letter of Credit (as described in Article 35). Landlord may, from time to time, without prejudice to any other remedy, use all or a portion of the Security Deposit to satisfy past due Rent or to cure any uncured default by Tenant. If Landlord uses the Security Deposit, Tenant shall on demand restore the Security Deposit to its original amount. At the later of (1) termination of this Lease, or (ii) the date Tenant surrenders the Premises to Landlord in accordance with the provisions of this Lease, Landlord shall return any unapplied portion of the Security Deposit (less any amounts retained to reimburse Landlord for any uncured defaults) to Tenant within 10 Business Days after the date this Lease expires or terminates and Tenant surrenders possession of the Premises to Landlord in accordance with this Lease. In addition to any other deductions Landlord is entitled to make pursuant to the terms hereof, Landlord shall have the right to make a good faith estimate of any unreconciled Expenses and/or Taxes as of the Termination Date and to deduct any anticipated shortfall from the Security Deposit. If Landlord transfers its interest in the Premises, Landlord may assign the Security Deposit to the transferee and, following the assignment, Landlord shall have no further liability for the return of the Security Deposit, provided that such transferee has agreed in writing to assume the obligations of Landlord under this Lease with respect to the Security Deposit. Landlord shall not be required to keep the Security Deposit separate from its other accounts. Tenant hereby waives the provisions of Section 1950.7 of the California Civil Code, or any similar or successor Laws now or hereinafter in effect.
7. Services to be Furnished by Landlord .
A. Tenant shall separately arrange and pay for all water, gas, heat, light, power, telephone, sewer, sprinkler system charges and other utilities and services, including janitorial services that are consistent with class “A” office use, used on or from the Premises, together with any taxes, penalties, and surcharges or the like pertaining thereto and any maintenance charges for utilities. Tenant shall furnish all electric light bulbs, tubes and ballasts, battery packs for emergency lighting and fire extinguishers. Tenant will not, without the written consent of Landlord, contract with a utility provider to service the Premises with any utility, including, but not limited to, telecommunications, electricity, water, sewer or gas, which is not previously providing such service to the Building. Landlord shall in no event be liable for any interruption or failure of utility services on or to the Premises. Tenant shall, at Landlord’s request at any time during the Term and at Tenant’s own cost and expense, enter into a regularly scheduled janitorial contract with a contractor approved by Landlord (and a copy thereof shall be furnished to Landlord). Should Tenant fail to do so, Landlord may, upon notice to Tenant, provide such janitorial services and charge Tenant the cost thereof.
B. Landlord agrees to furnish Tenant with the following services: (1) maintenance and repair of the Property as described in Section 9.B.; and (2) heat and air conditioning at such temperatures and in such amounts as are standard for comparable buildings or as required by
 
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governmental authority provided that (i) Tenant shall have the right to receive HVAC service during hours other than Normal Business Hours (and shall not be required to coordinate such after hours service with Landlord), and (ii) Tenant shall pay Landlord the standard charge for the additional service as reasonably determined by Landlord from time to time. If Tenant’s use, floor covering or other improvements require special services in excess of the foregoing, Tenant shall pay the additional cost attributable to the special services. When Tenant is required to pay Landlord for any utility as a direct reimbursement for above- standard usage, Tenant shall pay Landlord’s “actual cost” of providing such service to Tenant. “ Actual cost ” shall be the actual costs paid or incurred by Landlord (excluding any increases or write-ups for shall be the actual costs paid or incurred by Landlord (excluding any increases or write-ups for profit) in providing such utilities to Tenant; “actual cost” may, when warranted, included a commercially reasonable charge to offset anticipated costs attendant to the utility requested by Tenant, such as depreciation, increased wear and tear on, or shortened useful life of, certain infrastructure arising out of Tenant’s usage, but will not include any administrative charge or other write up to compensate Landlord for work performed by on-site employees or representatives unless and to the extent that Landlord is required to provide such employees or representatives additional compensation or benefits as a result of Tenant’s use of the utility in question. With respect to any services provided by Landlord, any administrative fee charged by Landlord in connection therewith shall be commercially reasonable.
C. Landlord’s failure to furnish, or any interruption or termination of, services due to the application of Laws, the failure of any equipment, the performance of repairs, improvements or alterations, or the occurrence of any event or cause beyond the reasonable control of Landlord (a “Service Failure”) shall not render Landlord liable to Tenant, constitute a constructive eviction of Tenant, give rise to an abatement of Rent, nor relieve Tenant from the obligation to fulfill any covenant or agreement. In no event shall Landlord be liable to Tenant for any loss or damage, including the theft of Tenant’s Property (defined in Article 15), arising out of or in connection with the failure of any security services, personnel or equipment.
8. Premises Improvements .
All improvements to the Premises (collectively, “ Premises Improvements ”) shall be owned by Landlord and shall remain upon the Premises without compensation to Tenant. However, Landlord, by written notice to Tenant within 30 days prior to the Termination Date, may require Tenant to remove, at Tenant’s expense: (1) Cable (defined in Section 9.A) installed by or for the exclusive benefit of Tenant and located in the Premises or other portions of the Building; and (2) any Premises Improvements that are performed by or for the benefit of Tenant that Tenant is required to remove pursuant to notice given by Landlord to Tenant at least 10 days prior to expiration of the Term (collectively referred to as “ Required Removables ”). Without limitation, it is agreed that Required Removables include internal stairways, raised floors, personal baths and showers, vaults, rolling file systems and structural alterations and modifications of any type. The Required Removables designated by Landlord shall be removed by Tenant before the Termination Date. Tenant shall repair damage caused by the installation or removal of Required Removables. If Tenant fails to remove any Required Removables or perform related repairs in a timely manner, Landlord, at Tenant’s expense, may remove and dispose of the Required Removables and perform the required repairs. Tenant, within 10 days after receipt of an invoice, shall reimburse Landlord for the reasonable costs incurred by Landlord.
 
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9. Repairs and Alterations .
A. Tenant’s Repair Obligations . Tenant shall, at its sole cost and expense, promptly perform all maintenance and repairs to the Premises that are not Landlord’s express responsibility under this Lease, and shall keep the Premises in good condition and repair, reasonable wear and tear excepted. Tenant’s repair obligations include, without limitation, repairs to: (1) floor covering; (2) interior partitions; (3) doors; (4) the interior side of demising walls; (5) electronic, phone and data cabling and related equipment (collectively, “ Cable ”) that is installed by or for the exclusive benefit of Tenant and located in the Premises or other portions of the Building; (6) supplemental air conditioning units, private showers and kitchens, including hot water heaters, plumbing, and similar facilities serving Tenant exclusively; and (7) Alterations performed by contractors retained by Tenant, including related HVAC balancing. All work shall be performed in accordance with the rules and procedures described in Section 9.C. below. If Tenant fails to make any repairs to the Premises for more than 30 days after notice from Landlord (although notice shall not be required if there is an emergency), Landlord may make the repairs, and Tenant shall pay the reasonable cost of the repairs to Landlord within 10 days after receipt of an invoice, together with an administrative charge in an amount equal to 10% of the cost of the repairs.
B. Landlord’s Repair Obligations . Landlord shall keep and maintain in good repair and working order and make repairs to and perform maintenance upon: (1) structural elements of the Building; (2) mechanical (including HVAC), electrical, plumbing and fire/life safety systems serving the Building in general; (3) Common Areas; (4) the roof of the Building; (5) exterior windows of the Building; and (6) elevators serving the Building. Landlord shall promptly make repairs (considering the nature and urgency of the repair) for which Landlord is responsible. Tenant hereby waives any and all rights under and benefits of subsection 1 of Section 1932, and Sections 1941 and 1942 of the California Civil Code, or any similar or successor Laws now or hereinafter in effect.
C. Alterations . Tenant shall not make alterations, additions or improvements to the Premises or install any Cable in the Premises or other portions of the Building or the Project (collectively referred to as “ Alterations ”) without first obtaining the written consent of Landlord in each instance. However, Landlord’s consent shall not be required for any Alteration that satisfies all of the following criteria (a “ Cosmetic Alteration ”) (however, Tenant shall deliver prior written notice of such changes): (1) is of a cosmetic nature such as painting, wallpapering, hanging pictures and installing carpeting; (2) is not visible from the exterior of the Premises or Building; (3) will not affect the systems or structure of the Building or the Project; (4) does not require work to be performed inside the walls or above the ceiling of the Premises, and (5) costs less than $50,000.00 in the aggregate during any twelve (12) month period of the Term of this Lease; provided that the performance of Cosmetic Alterations shall be subject to all the other provisions of this Section 9.C. (except that Tenant shall not be required to furnish plans and specifications if not applicable or provide any security for performance). Prior to starting work, Tenant shall furnish Landlord with plans and specifications reasonably acceptable to Landlord; names of contractors reasonably acceptable to Landlord (provided that Landlord may designate
 
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specific contractors with respect to Building systems); copies of contracts; necessary permits and approvals; evidence of contractor’s and subcontractor’s insurance in amounts reasonably required by Landlord; and any security for performance that is reasonably required by Landlord. Changes to the plans and specifications must also be submitted to Landlord for its approval. Alterations shall be constructed in a good and workmanlike manner using materials of a quality that is at least equal to the quality designated by Landlord as the minimum standard for the Building. Landlord may designate reasonable rules, regulations and procedures for the performance of work in the Building and the Project and, to the extent reasonably necessary to avoid disruption to the occupants of the Building and the Project, shall have the right to designate the time when Alterations may be performed. Tenant shall reimburse Landlord within 10 days after receipt of an invoice for sums paid by Landlord for third party examination of Tenant’s plans for any Alterations. In addition, within 10 days after receipt of an invoice from Landlord, Tenant shall pay Landlord a fee for Landlord’s oversight and coordination of any non-Cosmetic Alterations equal to 10% of the cost of the Alterations. Upon completion, Tenant shall furnish “as-built” plans (except for Cosmetic Alterations), completion affidavits, full and final waivers of lien in recordable form, and receipted bills covering all labor and materials. Tenant shall assure that the Alterations comply with all insurance requirements and Laws. Landlord’s approval of an Alteration shall not be a representation by Landlord that the Alteration complies with applicable Laws or will be adequate for Tenant’s use.
10. Use of Electrical Services by Tenant .
A. Electricity used by Tenant in the Premises shall be paid for by Tenant by separate charge billed by the applicable utility company and payable directly by Tenant. Electrical service to the Premises may be furnished by one or more companies providing electrical generation, transmission and distribution services, and the cost of electricity may consist of several different components or separate charges for such services, such as generation, distribution and stranded cost charges. Landlord shall have the exclusive right to select any company providing electrical service to the Premises, to aggregate the electrical service for the Property and Premises with other buildings, to purchase electricity through a broker and/or buyers group and to change the providers and manner of purchasing electricity.
B. Tenant’s use of electrical service shall not exceed, either in voltage, rated capacity, use beyond Normal Business Hours or overall load, that which Landlord deems to be standard for the Building. If Tenant requests permission to consume excess electrical service, Landlord may refuse to consent or may condition consent upon conditions that Landlord reasonably elects (including, without limitation, the installation of utility service upgrades, meters, submeters, air handlers or cooling units), and the additional usage (to the extent permitted by Law), installation and maintenance costs shall be paid by Tenant. Landlord shall have the right to separately meter electrical usage for the Premises and to measure electrical usage by survey or other commonly accepted methods.
11. Entry by Landlord .
Landlord, its agents, contractors and representatives may enter the Premises to inspect or show the Premises, to clean and make repairs, alterations or additions to the Premises, and to conduct or facilitate repairs, alterations or additions to any portion of the Building or the Project,
 
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including other tenants’ premises. Except in emergencies or to provide janitorial and other Building services, Landlord shall provide Tenant with reasonable prior notice of entry (which shall be a minimum of 24 hours advance notice) into the Premises, which may be given orally. If reasonably necessary for the protection and safety of Tenant and its employees, Landlord shall have the right to temporarily close all or a portion of the Premises to perform repairs, alterations and additions. Entry by Landlord shall not constitute constructive eviction or entitle Tenant to an abatement or reduction of Rent.
12. Assignment and Subletting .
A. Tenant shall not assign, sublease, transfer or encumber any interest in this Lease or allow any third party to use any portion of the Premises (collectively or individually, a “ Transfer ”) without the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned if Landlord does not elect to exercise its termination rights under Section 12.B below. Without limitation, it is agreed that Landlord’s consent shall not be considered unreasonably withheld, delayed or conditioned, if: (1) the proposed transferee’s financial condition does not meet the criteria Landlord uses to select Building and Project tenants having similar leasehold obligations; (2) the proposed transferee’s business is not suitable for the Building or the Project considering the business of the other tenants and the prestige of the Building and the Project, or would result in a violation of another tenant’s rights; (3) the proposed transferee is a governmental agency or if (i) the proposed transferee is an occupant of the Project, (ii) Tenant is proposing to lease one full floor of either Building or more for a term exceeding more than half of the then remaining Term of this Lease, and (iii) Landlord has comparable space available for lease in the Project (provided, however, that Landlord will not withhold its consent solely because the proposed subtenant or assignee is an occupant of the Project if Landlord does not have space available for lease in the Project that is comparable to the space Tenant desires to sublet or assign. Landlord shall be deemed to have comparable space if it has, or will have, space available on any floor of the Project that is approximately the same size as the space Tenant desires to sublet or assign within 6 months of the proposed commencement of the proposed sublease or assignment); (4) Tenant is in default after the expiration of the notice and cure periods in this Lease; or (5) any portion of the Premises, the Building or the Project would likely become subject to additional or different Laws as a consequence of the proposed Transfer. Tenant shall not be entitled to receive monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed Transfer and Tenant’s sole remedy shall be an action to enforce any such provision through specific performance or declaratory judgment. Tenant hereby waives the provisions of Section 1995.310 of the California Civil Code, or any similar or successor Laws, now or hereinafter in effect, and all other remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable Laws, on behalf of the proposed transferee. Any attempted Transfer in violation of this Article shall, at Landlord’s option, be void. Consent by Landlord to one or more Transfer(s) shall not operate as a waiver of Landlord’s rights to approve any subsequent Transfers. In no event shall any Transfer or Permitted Transfer release or relieve Tenant from any obligation under this Lease.
B. As part of its request for Landlord’s consent to a Transfer, Tenant shall provide Landlord with financial statements for the proposed transferee, a complete copy of the proposed assignment, sublease and other contractual documents and such other information as Landlord
 
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may reasonably request. Landlord shall, by written notice to Tenant within 10 Business Days of its receipt of the required information and documentation, either: (1) consent to the Transfer by the execution of a consent agreement in a form reasonably designated by Landlord, or (2) reasonably refuse to consent to the Transfer in writing; or (3) if Tenant is assigning this Lease or is subleasing one full floor or more of either Building for a term exceeding more than half of the then remaining Term of this Lease, exercise its right to terminate this Lease with respect to the portion of the Premises that Tenant is proposing to assign or sublet. Any such termination shall be effective on the proposed effective date of the Transfer for which Tenant requested consent. Tenant shall pay Landlord a review fee of $1,000.00 for Landlord’s review of any Permitted Transfer or requested Transfer, provided if Landlord’s actual reasonable costs and expenses (including reasonable attorney’s fees) exceed $1,000.00, Tenant shall reimburse Landlord for its actual reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other consideration which Tenant receives as a result of a Transfer that is in excess of the Rent payable to Landlord for the portion of the Premises and Term covered by the Transfer. Tenant shall pay Landlord for Landlord’s share of any excess within 10 days after Tenant’s receipt of such excess consideration. Tenant may deduct from the excess the following reasonable and customary expenses directly incurred by Tenant attributable to the Transfer (other than Landlord’s review fee): brokerage fees, legal fees and construction costs directly incurred by Tenant attributable to the Transfer, amortized on a straight-line basis, over the entire period for which Tenant is to receive excess Rent. If Tenant is in default (defined in Section 19.A. below), Landlord may require that all sublease payments be made directly to Landlord.
D. If Tenant is a corporation, limited liability company, partnership, or similar entity, and if the entity which owns or controls a majority of the voting shares/rights of Tenant at any time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall constitute a Transfer. The foregoing shall not apply so long as Tenant is an entity whose outstanding stock is listed on a recognized security exchange, or if at least 80% of its voting stock is owned by another entity, the voting stock of which is so listed.
E. So long as Tenant is not entering into the Permitted Transfer (as defined below) for the purpose of avoiding or otherwise circumventing the remaining terms of this Article 12, Tenant may assign its entire interest under this Lease, without the consent of Landlord, to (a) an affiliate, subsidiary, or parent of Tenant, or a corporation, partnership or other legal entity wholly owned by Tenant (collectively, an “ Affiliated Party ”), or (b) a successor to Tenant by purchase, merger, consolidation or reorganization, provided that all of the following conditions are satisfied (each such transfer a “ Permitted Transfer ” and any such assignee or sublessee of a Permitted Transfer, a “ Permitted Transferee ”): (i) Tenant is not in default under this Lease; (ii) the Permitted Use does not allow the Premises to be used for retail purposes; (iii) Tenant shall give Landlord written notice at least thirty (30) days prior to the effective date of the proposed Permitted Transfer; (iv) with respect to a proposed Permitted Transfer to an Affiliated Party, Tenant continues to have a net worth equal to or greater than Tenant’s net worth at the date of this Lease; and (v) with respect to a purchase, merger, consolidation or reorganization or any Permitted Transfer which results in Tenant ceasing to exist as a separate legal entity, (A) Tenant’s successor shall own all or substantially all of the assets of Tenant, and (B) Tenant’s
 
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successor shall have a net worth which is at least equal to the greater of Tenant’s net worth at the date of this Lease or Tenant’s net worth as of the day prior to the proposed purchase, merger, consolidation or reorganization. Tenant’s notice to Landlord shall include information and documentation showing that each of the above conditions has been satisfied. If requested by Landlord, Tenant’s successor shall sign a commercially reasonable form of assumption agreement. As used herein, (1) “ parent ” shall mean a company which owns a majority of Tenant’s voting equity; (2) “ subsidiary ” shall mean an entity wholly owned by Tenant or at least fifty- one percent (51%) of whose voting equity is owned by Tenant; and (3) “ affiliate ” shall mean an entity controlled, controlling or under common control with Tenant
13. Liens .
Tenant shall not permit mechanic’s or other liens to be placed upon the Premises, Building, Property, Project or Tenant’s leasehold interest in connection with any work or service done or purportedly done by or for benefit of Tenant. If a lien is so placed, Tenant shall, within 10 Business Days following written notice of the filing of the lien, fully discharge the lien by settling the claim which resulted in the lien or by bonding or insuring over the lien in the manner prescribed by the applicable lien Law. If Tenant fails to discharge the lien or provide Landlord with insurance against the same issued by a major title insurance company or such other protection against the same as Landlord shall reasonably accept, then, in addition to any other right or remedy of Landlord, Landlord may bond or insure over the lien or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount paid by Landlord to bond or insure over the lien or discharge the lien, including, without limitation, reasonable attorneys’ fees (if and to the extent permitted by Law) within 10 days after receipt of an invoice from Landlord.
14. Indemnity and Waiver of Claims .
A. Except to the extent caused by the active negligence or willful misconduct of Landlord or any Landlord Parties, Tenant shall indemnify, defend and hold Landlord, its trustees, members, principals, beneficiaries, partners, officers, directors, employees, Mortgagee(s) (defined in Article 26) and agents (“Landlord Parties”) harmless against and from all liabilities, obligations, damages, penalties, claims, actions, costs, charges and expenses, including, without limitation, reasonable attorneys’ fees and other professional fees (if and to the extent permitted by Law), which may be imposed upon, incurred by or asserted against Landlord or any of the Landlord Parties by any third party and arising out of or in connection with any damage or injury occurring in the Premises or any acts or omissions (including violations of Law) of Tenant, the Tenant Parties (defined below) or any of Tenant’s transferees, contractors or licensees.
B. Except to the extent caused by the active negligence and willful misconduct of Landlord or the Landlord Parties, Landlord and the Landlord Parties shall not be liable for, and Tenant waives, all claims for loss or damage to Tenant’s business or loss, theft or damage to Tenant’s Property or the property of any person claiming by, through or under Tenant resulting from: (1) wind or weather; (2) the failure of any sprinkler, heating or air-conditioning equipment, any electric wiring or any gas, water or steam pipes; (3) the backing up of any sewer pipe or downspout; (4) the bursting, leaking or running of any tank, water closet, drain or other pipe; (5) water, snow or ice upon or coming through the roof, skylight, stairs, doorways, windows, walks or any other place upon or near the Building or the Project; (6) any act or omission of any party other than Landlord or Landlord Parties; and (7) any causes not reasonably within the control of Landlord. Tenant shall insure itself against such losses under Article 15 below.
 
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15. Insurance. Tenant shall maintain in full force and effect during the entire term of this Lease, at its own cost and expense, the following policies of insurance:
A. Commercial General Liability Insurance and Umbrella Liability Insurance . Tenant shall carry Commercial General Liability insurance and Umbrella Liability insurance in an amount equal to that currently maintained by Tenant, but not less than $ 2,000,000 each occurrence. If such CGL insurance contains a general aggregate limit, it shall apply separately to this location. Said policy shall provide coverage for bodily injury, property damage and advertising/personal injury arising from premises, operations, independent contractors, products-completed operations, and liability assumed under an insured contract. Not more frequently than once each three (3) years, if, in the opinion of Landlord the amount of Commercial General Liability insurance coverage at that time is not adequate, Tenant shall increase the insurance coverage as reasonably required by Landlord not more than the amount customarily required by landlords for comparable buildings.
B. Commercial Automobile Insurance and Umbrella Liability Insurance . Tenant shall carry Commercial Automobile insurance and Umbrella Liability insurance in an amount equal to that currently maintained by Tenant, but not less than $5,000,000 each accident. Such insurance shall cover liability arising out of any auto (including owned, hired and non-owned autos).
C. Workers’ Compensation Insurance and Employers’ Liability Insurance . Tenant shall carry Worker’s Compensation insurance as required by law and Employer’s Liability insurance in an amount equal to that currently maintained by Tenant, but not less than the following:
 
 	1.	Bodily Injury by Accident: $1,000,000 each accident;	
 
 	2.	Bodily Injury by Disease: $1,000,000 policy limit; and	
 
 	3.	Bodily Injury by Disease: $1,000,000 each employee.	
D. Commercial Property Insurance . Tenant shall carry Commercial Property insurance covering the Premises including fixtures, inventory, equipment, furniture and other personal property (collectively, “ Tenant’s Property ”), Premises Improvements, Alterations and betterments and all other content of the Premises and (if any, such as installed by or for Tenant) all mechanical, plumbing, heating, ventilating, air conditioning, electrical. The policy shall, at minimum, cover the perils insured under the ISO Special Causes of Loss Form (CP 10 30), but must include coverage for the following: vandalism, malicious mischief, sprinkler leakage. Such insurance shall be in an amount equal to 100% of the full replacement cost. Any coinsurance requirement in the policy shall be eliminated through the attachment of an agreed amount endorsement, or as is otherwise appropriate under the particular policy form. The proceeds of such insurance, so long as this Lease remains in effect, shall be used to repair and/or replace the Premises, and the Leasehold Improvements, fixtures, glass, equipment, mechanical, plumbing, heating, ventilating, air conditioning, electrical, telecommunication and other equipment,
 
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systems and facilities so insured. Because this Property is located in a zone known for the hazard of Earthquakes, Tenant shall also purchase Earthquake coverage with a limit equal to the full replacement cost of the property described in this Section 15.D.
E. Business Interruption or Rental Loss Insurance . Tenant shall carry Business Interruption or Rental Loss insurance sufficient to cover, for a period of not less than one (1) year, all rental, expense and other payment obligations of Tenant under this Lease, including, without limitation, Base Rent and adjustments thereto and Taxes, Expenses and all other costs, fees, charges and payments which would be borne by or due from Tenant under this Lease if the Premises and Tenant’s business were fully open and operating.
F. Tenant shall also carry any other forms of insurance Landlord may reasonably require from time to time, in form and amounts and for insurance risks against which a prudent Tenant of comparable size in a comparable business would protect itself.
G. Form of Insurance . All insurance required to be carried by Tenant hereunder:
1. shall be issued by insurance carriers authorized to conduct business in the state in which the Premises are located and with an A.M. Best’s guide rating of no less than A- VII;
2. shall be written as primary insurance over any insurance purchased by Landlord;
3. shall contain a provision whereby each insurer agrees to give Landlord at least thirty (30) days prior written notice of cancellation or ten (10) days’ prior written notice of any nonpayment of premium;
4. may provide for a deductible so long as the deductible does not exceed $25,000 per occurrence. Notwithstanding the foregoing, Landlord hereby agrees that Tenant’s insurance policies may provide for an earthquake deductible equal to 10% of the claim with a $50,000.00 minimum, a Personal & Advertising Injury deductible equal to $500,000.00 and a workers’ compensation deductible in an amount equal to $150,000.00 per loss and $1,000,000.00 aggregate. Any increase in such deductibles shall be subject to the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed;
5. shall be written on an “occurrence” basis (except for Tenant’s Personal & Advertising Injury Policy, which may be on a “claims made” basis). Except as expressly provided with respect to Tenant’s Personal & Advertising Injury Policy, any policies underwritten as “claims made” will not satisfy the insurance requirements outlined in this Section;
6. shall not be modified to reduce the extent of coverage or limits required herein without the prior written consent of Landlord;
7. with respect to the Commercial General Liability, Commercial Automobile Liability policies, Tenant shall ensure that the following are added by endorsement under the ISO (CG 20 11) or comparable form as additional insureds to the policies: Landlord, its parent companies, subsidiaries, affiliate companies and partnerships and all of its directors, officers, agents, representatives and employees; and
 
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8. with respect to Commercial Property insurance shall be provided under the form ACORD 24, and certificates of all other insurance and appropriate endorsements shall be provided under the form ACORD 25, said certificates shall be provided to Landlord five (5) days prior to occupancy and evidence of renewal shall be provided to Landlord concurrent with the expiry of each policy.
H. Failure to Maintain . If Tenant shall fail to acquire and maintain the insurance required pursuant to this Section, Landlord may, in addition to any other rights and remedies available to Landlord, but shall not be obligated to, acquire such insurance and pay the premiums therefor, which premiums shall be payable by Tenant to Landlord immediately upon demand.
I. Blanket Insurance . Tenant may, at its option, satisfy its insurance obligations hereunder by policies of so-called blanket insurance carried by Tenant provided that the same shall, in all respects, comply with the provision hereof. In such event, Tenant shall not be deemed to have complied with its obligation hereunder until Tenant shall have obtained and delivered to Landlord a certificate of insurance with appropriate endorsements, or upon Landlord’s reasonable request, a copy of said policy with endorsements.
J. Insurance Maintained by Landlord . Landlord shall obtain and keep in force during the Term Commercial General Liability insurance, Commercial Property insurance and Boiler & Machinery insurance covering the Building, Property and permanent Tenant improvements provided by Landlord, with coverages and in amounts deemed prudent by Landlord from time to time. Tenant shall pay to Landlord as Additional Rent Tenant’s Share of the cost of the premiums for all such insurance and the reasonable cost of Landlord’s insurance consultants. Notwithstanding any contribution by Tenant to the cost of insurance premiums as provided herein, Tenant acknowledges that Tenant has no right to receive any proceeds from any insurance policies carried by Landlord.
16. Subrogation .
Landlord and Tenant hereby waive any recovery of damages against each other (including their employees, officers, directors, agents, or representatives) for loss or damage to the building, Tenant improvements and betterments, fixtures, equipment, and any other personal property to the extent covered by commercial property insurance or boiler and machinery insurance required above. If the commercial property insurance and boiler and machinery insurance purchased by Tenant or Landlord as required above do not expressly allow the insured to waive rights of subrogation prior to loss. Tenant and Landlord shall cause the policies to be endorsed with a waiver of subrogation to the extent described in this Section 16. The cost of the endorsement, if any, shall be borne exclusively by Tenant and Landlord respectively.
17. Casualty Damage .
A. If all or any part of the Premises is damaged by fire or other casualty, Tenant shall immediately notify Landlord in writing. During any period of time that all or a material portion of the Premises is rendered untenantable as a result of a fire or other casualty, the Rent shall
 
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abate for the portion of the Premises that is untenantable and not used by Tenant. Landlord shall have the right to terminate this Lease if: (1) the Building or the Project shall be damaged so that, in Landlord’s reasonable judgment, substantial alteration or reconstruction of the Building or the Project shall be required (whether or not the Premises has been damaged); (2) Landlord is not permitted by Law to rebuild the Building or the Project in substantially the same form as existed before the fire or casualty; (3) the Premises have been materially damaged and there is less than eighteen (18) months of the Term remaining on the date of the casualty; (4) any Mortgagee requires that the insurance proceeds be applied to the payment of the mortgage debt; or (5) a material uninsured loss to the Building or the Project occurs. Landlord may exercise its right to terminate this Lease by notifying Tenant in writing within 90 days after the date of the casualty. If Landlord does not terminate this Lease, Landlord shall commence and proceed with reasonable diligence to repair and restore the Building and the Premises Improvements (excluding any Alterations that were performed by Tenant in violation of this Lease). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the fire or other casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Article, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Lease. Tenant shall have the right to terminate this Lease i 1: (a) a substantial portion of the Premises has been damaged by fire or other casualty and such damage cannot reasonably be repaired (as reasonably determined by Landlord) within 60 days after Landlord’s receipt of all required permits to restore the Premises; (b) there is less than eighteen (18) months of the Term remaining on the date of such casualty; and (c) Tenant provides Landlord with written notice of its intent to terminate within thirty (30) days after the date of the fire or other casualty.
B. If all or any portion of the Premises shall be made untenantable by fire or other casualty, Landlord shall, with reasonable promptness, cause an architect or general contractor selected by Landlord to provide Landlord and Tenant with a written estimate of the amount of time required to substantially complete the repair and restoration of the Premises and make the Premises tenantable again, using standard working methods (“Completion Estimate”). If the Completion Estimate indicates that the Premises cannot be made tenantable within 270 days from the date the repair and restoration is started, then regardless of anything in Section 17.A above to the contrary, either party shall have the right to terminate this Lease by giving written notice to the other of such election within 10 days after receipt of the Completion Estimate. Tenant, however, shall not have the right to terminate this Lease if the fire or casualty was caused by the intentional misconduct of Tenant, Tenant Parties or any of Tenant’s transferees, contractors or licensees.
C. The provisions of this Lease, including this Article 17, constitute an express agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any part of the Premises, the Building, the Property or the Project, and any Laws, including, without limitation, Sections 1932(2) and 1933(4) of the California Civil Code, with respect to any rights or obligations concerning damage or destruction in the absence of an express agreement between the parties, and any similar or successor Laws now or hereinafter in effect, shall have no application to this Lease or any damage or destruction to all or any part of the Premises, the Building, the Property or the Project.
 
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18. Condemnation .
Either party may terminate this Lease if the whole or any material part of the Premises shall be taken or condemned for any public or quasi-public use under Law, by eminent domain or private purchase in lieu thereof (a “Taking”). Landlord shall also have the right to terminate this Lease if there is a Taking of any portion of the Building, Property or Project which would leave the remainder of the Building or the Project unsuitable for use as an office building or an office project in a manner comparable to the use of the Building or the Project prior to the Taking. In order to exercise its right to terminate the Lease, Landlord or Tenant, as the case may be, must provide written notice of termination to the other within 45 days after the terminating party first receives notice of the Taking. Any such termination shall be effective as of the date the physical taking of the Premises or the portion of the Building, Property or Project occurs. If this Lease is not terminated, the rentable square footage of the Building, the rentable square footage of the Premises, the Building’s allocable percentage of the Project and Tenant’s Share shall, if applicable, be appropriately adjusted. In addition, Rent for any portion of the Premises taken or condemned shall be abated during the unexpired Term of this Lease effective when the physical taking of the portion of the Premises occurs. All compensation awarded for a Taking, or sale proceeds, shall be the property of Landlord, any right to receive compensation or proceeds being expressly waived by Tenant. However, Tenant may file a separate claim at its sole cost and expense for Tenant’s Property and Tenant’s reasonable relocation expenses, provided the filing of the claim does not diminish the award which would otherwise be receivable by Landlord. Tenant hereby waives any and all rights it might otherwise have pursuant to Section 1265.130 of the California Code of Civil Procedure, or any similar or successor Laws.
19. Events of Default .
Tenant shall be considered to be in default of this Lease upon the occurrence of and during the continuance of any of the following events of default:
A. Tenant’s failure to pay when due all or any portion of the Rent when due (“ Monetary Default ”).
B. Tenant’s failure (other than a Monetary Default) to comply with any term, provision or covenant of this Lease, if the failure is not cured within 10 days after written notice to Tenant. However, if Tenant’s failure to comply cannot reasonably be cured within 10 days, Tenant shall be allowed additional time (not to exceed 60 days) as is reasonably necessary to cure the failure so long as: (1) Tenant commences to cure the failure within 10 days, and (2) Tenant diligently pursues a course of action that will cure the failure and bring Tenant back into compliance with the Lease. However, if Tenant’s failure to comply creates a hazardous condition, the failure must be cured immediately upon notice to Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts when due.
D. The leasehold estate is taken by process or operation of Law.
 
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E. In the case of any ground floor or retail Tenant, Tenant does not take possession of, or abandons or vacates all or any portion of the Premises.
F. Tenant is in default beyond any notice and cure period under any other lease or agreement with Landlord, including, without limitation, any lease or agreement for parking.
20. Remedies .
A. Upon the occurrence and continuance of any event or events of default under this Lease, whether enumerated in Article 19 or not, Landlord shall have the option to pursue any one or more of the following remedies without any notice (except as expressly prescribed herein) or demand whatsoever (and without limiting the generality of the foregoing, Tenant hereby specifically waives notice and demand for payment of Rent or other obligations, except for those notices specifically required pursuant to the terms of Article 19 or this Article 20, and waives any and all other notices or demand requirements imposed by applicable law):
1. Terminate this Lease and Tenant’s right to possession of the Premises and recover from Tenant an award of damages equal to the sum of the following:
(a) The Worth at the Time of Award of the unpaid Rent which had been earned at the time of termination;
(b) The Worth at the Time of Award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such Rent loss that Tenant affirmatively proves could have been reasonably avoided;
(c) The Worth at the Time of Award of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such Rent loss that Tenant affirmatively proves could be reasonably avoided;
(d) Any other amount necessary to compensate Landlord for all the detriment either proximately caused by Tenant’s failure to perform Tenant’s obligations under this Lease or which in the ordinary course of things would be likely to result therefrom; and
(e) All such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time under applicable law.
The “Worth at the Time of Award” of the amounts referred to in parts (a) and (b) above, shall be computed by allowing interest at the lesser of a per annum rate equal to: (i) the greatest per annum rate of interest permitted from time to time under applicable law, or (ii) the Prime Rate plus 5%. For purposes hereof, the “Prime Rate” shall be the per annum interest rate publicly announced as its prime or base rate by a federally insured bank selected by Landlord in the State of California. The “Worth at the Time of Award” of the amount referred to in part (c), above, shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus 1%;
2. Employ the remedy described in California Civil Code § 1951.4 (Landlord may continue this Lease in effect after Tenant’s breach and abandonment and recover Rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations); or
 
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3. Notwithstanding Landlord’s exercise of the remedy described in California Civil Code § 1951.4 in respect of an event or events of default, at such time thereafter as Landlord may elect in writing, to terminate this Lease if such event or events of default are continuing and Tenant’s right to possession of the Premises and recover an award of damages as provided above in Paragraph 20.A.1.
B. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord’s knowledge of such preceding breach at the time of acceptance of such Rent. No waiver by Landlord of any breach hereof shall be effective unless such waiver is in writing and signed by Landlord.
C. TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (c) AND 1179 OF THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE LEASE TERM PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT’S BREACH. TENANT ALSO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS LEASE.
D. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder or now or hereafter existing by agreement, applicable law or in equity. In addition to other remedies provided in this Lease, Landlord shall be entitled, to the extent permitted by applicable law, to injunctive relief, or to a decree compelling performance of any of the covenants, agreements, conditions or provisions of this Lease, or to any other remedy allowed to Landlord at law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default.
E. If Tenant is in default, then, to the extent permitted by Law, Landlord shall be entitled to receive interest on any unpaid item of Rent at a rate equal to the lesser of the maximum rate permitted by Law or the Prime Rate plus 5% per annum. For purposes hereof, the “Prime Rate” shall be the per annum interest rate publicly announced as its prime or base rate by a federally insured bank selected by Landlord in the state in which the Building is located.
F. This Article 20 shall be enforceable to the maximum extent such enforcement is not prohibited by applicable law, and the unenforceability of any portion thereof shall not thereby render unenforceable any other portion.
 
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21. Limitation of Liability .
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO LANDLORD’S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY LANDLORD RELATED PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) (DEFINED IN ARTICLE 26 BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN ARTICLE 26 BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.
22. No Waiver .
Either party’s failure to declare a default immediately upon its occurrence, or delay in taking action for a default shall not constitute a waiver of the default, nor shall it constitute an estoppel. Either party’s failure to enforce its rights for a default shall not constitute a waiver of its rights regarding any subsequent default. Receipt by Landlord of Tenant’s keys to the Premises shall not constitute an acceptance or surrender of the Premises.
23. Quiet Enjoyment .
Tenant shall, and may peacefully have, hold and enjoy the Premises, subject to the terms of this Lease, provided Tenant pays the Rent and fully performs all of its covenants and agreements. This covenant and all other covenants of Landlord shall he binding upon Landlord and its successors only during its or their respective periods of ownership of the Building, and shall not be a personal covenant of Landlord or the Landlord Parties.
24. Intentionally Omitted .
25. Holding Over .
If Tenant fails to surrender the Premises in accordance with the terms of this Lease at the expiration or earlier termination of this Lease, occupancy of the Premises after the termination or expiration shall be that of a tenancy at sufferance. Tenant’s occupancy of the Premises during the holdover shall be subject to all the terms and provisions of this Lease and Tenant shall pay an amount (on a per month basis without reduction for partial months during the holdover) equal to 150% of the sum of the Base Rent and Additional Rent due for the period immediately preceding the holdover. No holdover by Tenant or payment by Tenant after the expiration or early termination of this Lease shall be construed to extend the Term or prevent Landlord from immediate recovery of possession of the Premises by summary proceedings or otherwise. In addition to the payment of the amounts provided above, Tenant shall be liable to Landlord for all damages, including, without limitation, consequential damages, that Landlord suffers from the holdover.
 
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26. Subordination to Mortgages; Estoppel Certificate .
A. Tenant accepts this Lease subject and subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising upon the Premises, the Building, the Property or the Project, and to renewals, modifications, refinancings and extensions thereof (collectively referred to as a “Mortgage”). The party having the benefit of a Mortgage shall be referred to as a “Mortgagee”. This clause shall be self-operative, but upon request from a Mortgagee, Tenant shall execute a commercially reasonable subordination agreement in favor of the Mortgagee. In lieu of having the Mortgage be superior to this Lease, a Mortgagee shall have the right at any time to subordinate its Mortgage to this Lease. If requested by a successor-in-interest to all or a part of Landlord’s interest in the Lease, Tenant shall, without charge, attorn to the successor-in-interest.
B. Within 10 Business Days following any written request which Landlord may make from time to time, Tenant shall execute and deliver to Landlord or mortgagee or prospective mortgagee a sworn statement certifying: (a) the date of commencement of this Lease; (b) the fact that this Lease is unmodified and in full force and effect (or, if there have been modifications to this Lease, that this Lease is in full force and effect, as modified, and stating the date and nature of such modifications); (c) the date to which the rent and other sums payable under this Lease have been paid; (d) the fact that there are no current defaults under this Lease by Tenant or, to Tenant’s knowledge, by Landlord except as specified in Tenant’s statement; and (e) such other matters as may be reasonably requested by Landlord. Landlord and Tenant intend that any statement delivered pursuant to this Section may he relied upon by any mortgagee, beneficiary or purchaser. Tenant irrevocably agrees that if Tenant fails to execute and deliver such certificate within such 10 Business Day period Landlord or Landlord’s beneficiary or agent may execute and deliver such certificate on Tenant’s behalf, and that such certificate shall be fully binding on Tenant.
27. Attorneys’ Fees .
If either party institutes a suit against the other for violation of or to enforce any covenant or condition of this Lease, or if either party intervenes in any suit in which the other is a party to enforce or protect its interest or rights, the prevailing party shall be entitled to all of its costs and expenses, including, without limitation, reasonable attorneys’ fees.
28. Notice .
If a demand, request, approval, consent or notice (collectively referred to as a “notice”) shall or may be given to either party by the other, the notice shall be in writing and delivered by hand or sent by registered or certified mail with return receipt requested, or sent by overnight or same day courier service at the party’s respective Notice Address(es) set forth in Article I, except that if Tenant has vacated the Premises (or if the Notice Address for Tenant is other than the Premises, and Tenant has vacated such address) without providing Landlord a new Notice Address, Landlord may serve notice in any manner described in this Article or in any other
 
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manner permitted by Law. Each notice shall be deemed to have been received or given on the earlier to occur of actual delivery or the date on which delivery is refused, or, if Tenant has vacated the Premises or the other Notice Address of Tenant without providing a new Notice Address, 3 days after notice is deposited in the U.S. mail or with a courier service in the manner described above. Either party may, at any time, change its Notice Address (other than to a post office box address) by giving the other party written notice of the new address in the manner described in this Article.
29. Excepted Rights .
This Lease does not grant any rights to light or air over or about the Building or the Project. Landlord excepts and reserves exclusively to itself the use of: (1) roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms, Building risers or similar areas that are used by Landlord for the provision of Building services, (4) rights to the land and improvements below the floor of the Premises, (5) the improvements and air rights above the Premises, (6) the improvements and air rights outside the demising walls of the Premises, and (7) the areas within the Premises used for the installation of utility lines and other installations serving occupants of the Building or the Project. Landlord has the right to change the Building’s or Project’s name or address. Landlord also has the right to make such other changes to the Building, Property and Project as Landlord deems appropriate, provided the changes do not materially affect Tenant’s ability to use the Premises for the Permitted Use. Landlord shall also have the right (but not the obligation) to temporarily close the Building if Landlord reasonably determines that there is an imminent danger of significant damage to the Building or of personal injury to Landlord’s employees or the occupants of the Building. The circumstances under which Landlord may temporarily close the Building shall include, without limitation, electrical interruptions, hurricanes and civil disturbances. A closure of the Building under such circumstances shall not constitute a constructive eviction nor entitle Tenant to an abatement or reduction of Rent.
30. Surrender of Premises .
At the expiration or earlier termination of this Lease or Tenant’s right of possession, Tenant shall remove Tenant’s Property (defined in Article 15) from the Premises, and quit and surrender the Premises to Landlord, broom clean, and in good order, condition and repair, ordinary wear and tear excepted. Tenant shall also be required to remove the Required Removables in accordance with Article 8. If Tenant fails to remove any of Tenant’s Property as of the termination of this Lease or of Tenant’s right to possession, Landlord, at Tenant’s sole cost and expense, shall be entitled (but not obligated) to remove and store Tenant’s Property. Landlord shall not be responsible for the value, preservation or safekeeping of Tenant’s Property. Tenant shall pay Landlord, upon demand, the expenses and storage charges incurred for Tenant’s Property. In addition, if Tenant fails to remove Tenant’s Property from the Premises or storage, as the case may be, within 10 Business Days after written notice, Landlord may deem all or any part of Tenant’s Property to be abandoned, and title to Tenant’s Property shall be deemed to be immediately vested in Landlord.
 
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31. Miscellaneous .
A. This Lease and the rights and obligations of the parties shall be interpreted, construed and enforced in accordance with the Laws of the State of California and Landlord and Tenant hereby irrevocably consent to the jurisdiction and proper venue of such state. if any term or provision of this Lease shall to any extent be invalid or unenforceable, the remainder of this Lease shall not be affected, and each provision of this Lease shall be valid and enforced to the fullest extent permitted by Law. The headings and titles to the Articles and Sections of this Lease are for convenience only and shall have no effect on the interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without Landlord’s prior written consent.
C. Whenever a period of time is prescribed for the taking of an action by Landlord or Tenant, the period of time for the performance of such action shall be extended by the number of days that the performance is actually delayed due to strikes, acts of God, shortages of labor or materials, war, civil disturbances and other causes beyond the reasonable control of the performing party (“Force Majeure”). However, events of Force Majeure shall not extend any period of time for the payment of Rent or other sums payable by either party or any period of time for the written exercise of an option or right by either party.
D. Landlord shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under this Lease and in the Building, Property and/or Project referred to herein, and upon such transfer Landlord shall be released from any obligations hereunder arising after the date of such transfer, and Tenant agrees to look solely to the successor in interest of Landlord for the performance of such obligations.
E. Tenant represents that it has dealt directly with and only with the Broker as a broker in connection with this Lease. Tenant shall indemnify and hold Landlord and the Landlord Parties harmless from all claims of any other brokers claiming to have represented Tenant in connection with this Lease. Landlord agrees to indemnify and hold Tenant and the Tenant Parties harmless from all claims of any brokers claiming to have represented Landlord in connection with this Lease.
F. Tenant covenants, warrants and represents that: (1) each individual executing, attesting and/or delivering this Lease on behalf of Tenant is authorized to do so on behalf of Tenant; (2) this Lease is binding upon Tenant; and (3) Tenant is duly organized and legally existing in the state of its organization and is qualified to do business in the State of California. If there is more than one Tenant, or if Tenant is comprised of more than one party or entity, the obligations imposed upon Tenant shall be joint and several obligations of all the parties and entities. Notices, payments and agreements given or made by, with or to any one person or entity shall be deemed to have been given or made by, with and to all of them. Tenant hereby represents and warrants that neither Tenant, nor any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”); (ii) designated by the President or OFAC
 
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pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons.” If the foregoing representation is untrue at any time during the Term, an event of default will be deemed to have occurred, without the necessity of notice to Tenant.
G. Time is of the essence with respect to Tenant’s exercise of any expansion, renewal or extension rights granted to Tenant. This Lease shall create only the relationship of landlord and tenant between the parties, and not a partnership, joint venture or any other relationship. This Lease and the covenants and conditions in this Lease shall inure only to the benefit of and be binding only upon Landlord and Tenant and their permitted successors and assigns.
H. The expiration of the Term, whether by lapse of time or otherwise, shall not relieve either party of any obligations which accrued prior to or which may continue to accrue after the expiration or early termination of this Lease. Without limiting the scope of the prior sentence, it is agreed that Tenant’s obligations under Articles 4, 8, 9, 20, 25 and 30 shall survive the expiration or early termination of this Lease.
I. Landlord has delivered a copy of this Lease to Tenant for Tenant’s review only, and the delivery of it does not constitute an offer to Tenant or an option. This Lease shall not be effective against any party hereto until an original copy of this Lease has been signed by such party.
J. All understandings and agreements previously made between the parties are superseded by this Lease, and neither party is relying upon any warranty, statement or representation not contained in this Lease. This Lease may be modified only by a written agreement signed by Landlord and Tenant.
K. Tenant, within 15 Business Days after request, shall provide Landlord with a copy of its most current financial statement and such other information as Landlord may reasonably request in order to create a “business profile” of Tenant and determine Tenant’s ability to fulfill its obligations under this Lease. Landlord, however, shall not require Tenant to provide such information unless Landlord is requested to produce the information in connection with a proposed financing or sale of the Building. Upon written request by Tenant, Landlord shall enter into a commercially reasonable confidentiality agreement covering any confidential information that is disclosed by Tenant prior to such disclosure.
L. If one or more buildings are removed from the group of buildings comprising the Project, whether as a result of a sale or demolition of the building(s) or otherwise, or if one or more buildings owned by Landlord are added to the group of buildings comprising the Project, as described above in this Section, then the definition of “Project” and “Tenant’s Share” with respect to the Premises, shall he appropriately modified or adjusted to reflect the deletion or addition of such buildings.
 
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32. Waiver of Jury Trial. LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY JURY, AND, TO THE EXTENT ENFORCEABLE UNDER CALIFORNIA LAW, EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, TENANT’S USE OR OCCUPANCY OF THE PREMISES AND/OR ANY CLAIM OF INJURY OR DAMAGE. FURTHERMORE. THIS WAIVER AND RELEASE OF ALL RIGHTS TO A JURY TRIAL IS DEEMED TO BE INDEPENDENT OF EACH AND EVERY OTHER PROVISION, COVENANT, AND/OR CONDITION SET FORTH IN THIS LEASE.
IF THE JURY WAIVER PROVISIONS OF THIS SECTION 32 ARE NOT ENFORCEABLE UNDER CALIFORNIA LAW, THEN THE FOLLOWING PROVISIONS OF THIS SECTION 33 SHALL APPLY. IT IS THE DESIRE AND INTENTION OF THE PARTIES TO AGREE UPON A MECHANISM AND PROCEDURE UNDER WHICH CONTROVERSIES AND DISPUTES ARISING OUT OF THIS LEASE OR RELATED TO THE PREMISES WILL BE RESOLVED IN A PROMPT AND EXPEDITIOUS MANNER. ACCORDINGLY, EXCEPT WITH RESPECT TO ACTIONS FOR UNLAWFUL OR FORCIBLE DETAINER OR WITH RESPECT TO THE PREJUDGMENT REMEDY OF ATTACHMENT, ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, TENANT’S USE OR OCCUPANCY OF THE PREMISES AND/OR ANY CLAIM OF INJURY OR DAMAGE, SHALL BE HEARD AND RESOLVED BY A REFEREE UNDER THE PROVISIONS OF THE CALIFORNIA CODE OF CIVIL PROCEDURE, SECTIONS 638 — 645.1, INCLUSIVE (AS SAME MAY BE AMENDED, OR ANY SUCCESSOR STATUTE(S) THERETO) (THE “REFEREE SECTIONS”). ANY FEE TO INITIATE THE JUDICIAL REFERENCE PROCEEDINGS SHALL BE PAID BY THE PARTY INITIATING SUCH PROCEDURE; PROVIDED HOWEVER, THAT THE COSTS AND FEES, INCLUDING ANY INITIATION FEE, OF SUCH PROCEEDING SHALL ULTIMATELY BE BORNE IN ACCORDANCE WITH SECTION 27 ABOVE. THE VENUE OF THE PROCEEDINGS SHALL BE IN THE COUNTY IN WHICH THE PREMISES ARE LOCATED. WITHIN TEN (10) DAYS OF RECEIPT BY ANY PARTY OF A WRITTEN REQUEST TO RESOLVE ANY DISPUTE OR CONTROVERSY PURSUANT TO THIS SECTION 32, THE PARTIES SHALL AGREE UPON A SINGLE REFEREE WHO SHALL TRY ALL ISSUES, WHETHER OF FACT OR LAW, AND REPORT A FINDING AND JUDGMENT ON SUCH ISSUES AS REQUIRED BY THE REFEREE SECTIONS. IF THE PARTIES ARE UNABLE TO AGREE UPON A REFEREE WITHIN SUCH TEN (10) DAY PERIOD, THEN ANY PARTY MAY THEREAFTER FILE A LAWSUIT IN THE COUNTY IN WHICH THE PREMISES ARE LOCATED FOR THE PURPOSE OF APPOINTMENT OF A
 
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REFEREE UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 638 AND 640, AS SAME MAY BE AMENDED OF ANY SUCCESSOR STATUTE(S) THERETO. IF THE REFEREE IS APPOINTED BY THE COURT, THE REFEREE SHALL BE A NEUTRAL AND IMPARTIAL RETIRED JUDGE WITH SUBSTANTIAL EXPERIENCE IN THE RELEVANT MATTERS TO BE DETERMINED, FROM JAMS/ENDISPUTE, INC., THE AMERICAN ARBITRATION ASSOCIATION OR SIMILAR MEDIATION/ARBITRATION ENTITY. THE PROPOSED REFEREE MAY RE CHALLENGED BY ANY PARTY FOR ANY OF THE GROUNDS LISTED IN SECTION 641 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE, AS SAME MAY BE AMENDED OR ANY SUCCESSOR STATUTE(S) THERETO. THE REFEREE SHALL HAVE THE POWER TO DECIDE ALL ISSUES OF FACT AND LAW AND REPORT HIS OR HER DECISION ON SUCH ISSUES, AND TO ISSUE ALL RECOGNIZED REMEDIES AVAILABLE AT LAW OR IN EQUITY FOR ANY CAUSE OF ACTION THAT IS BEFORE THE REFEREE, INCLUDING AN AWARD OF ATTORNEYS’ FEES AND COSTS IN ACCORDANCE WITH CALIFORNIA LAW. THE REFEREE SHALL NOT, HOWEVER, HAVE THE POWER TO AWARD PUNITIVE DAMAGES, NOR ANY OTHER DAMAGES WHICH ARE NOT PERMITTED BY THE EXPRESS PROVISIONS OF THIS LEASE, AND THE PARTIES HEREBY WAIVE ANY RIGHT TO RECOVER ANY SUCH DAMAGES. THE PARTIES SHALL BE ENTITLED TO CONDUCT ALL DISCOVERY AS PROVIDED IN THE CALIFORNIA CODE OF CIVIL PROCEDURE, AND THE REFEREE SHALL OVERSEE DISCOVERY AND MAY ENFORCE ALL DISCOVERY ORDERS IN THE SAME MANNER AS ANY TRIAL COURT JUDGE, WITH RIGHTS TO REGULATE DISCOVERY AND TO ISSUE AND ENFORCE SUBPOENAS, PROTECTIVE ORDERS AND OTHER LIMITATIONS ON DISCOVERY AVAILABLE UNDER CALIFORNIA LAW. THE REFERENCE PROCEEDING SHALL BE CONDUCTED IN ACCORDANCE WITH CALIFORNIA LAW (INCLUDING THE RULES OF EVIDENCE), AND IN ALL REGARDS, THE REFEREE SHALL FOLLOW CALIFORNIA LAW APPLICABLE AT THE TIME OF THE REFERENCE PROCEEDING. IN ACCORDANCE WITH SECTION 644 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE, THE DECISION OF THE REFEREE UPON THE WHOLE ISSUE MUST STAND AS THE DECISION OF THE COURT, AND UPON THE FILING OF THE STATEMENT OF DECISION WITH THE CLERK OF THE COURT, OR WITH THE JUDGE IF THERE IS NO CLERK, JUDGMENT MAY BE ENTERED THEREON IN THE SAME MANNER AS IF THE ACTION HAD BEEN TRIED BY THE COURT. THE PARTIES SHALL PROMPTLY AND DILIGENTLY COOPERATE WITH ONE ANOTHER AND THE REFEREE, AND SHALL PERFORM SUCH ACTS AS MAY BE NECESSARY TO OBTAIN A PROMPT AND EXPEDITIOUS RESOLUTION OF THE DISPUTE OR CONTROVERSY IN ACCORDANCE WITH THE TERMS OF THIS SECTION 32. TO THE EXTENT THAT NO PENDING LAWSUIT HAS BEEN FILED TO OBTAIN THE APPOINTMENT OF A REFEREE, ANY PARTY, AFTER THE ISSUANCE OF THE DECISION OF THE REFEREE, MAY APPLY TO THE COURT OF THE COUNTY IN WHICH THE PREMISES ARE LOCATED FOR CONFIRMATION BY THE COURT OF THE DECISION OF THE REFEREE IN THE SAME MANNER AS A PETITION FOR CONFIRMATION OF AN ARBITRATION AWARD PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 1285 ET SEQ . (AS SAME MAY BE AMENDED OR ANY SUCCESSOR STATUTE(S) THERETO).
 
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33. Entire Agreement .
This Lease, including the following exhibits and attachments which are hereby incorporated into and made a part of this Lease, constitute the entire agreement between the parties and supersede all prior agreements and understandings related to the Premises, including all lease proposals, letters of intent and other documents: Exhibit A (Outline and Location of Premises), Exhibit B (Building Rules and Regulations), Exhibit C (Commencement Letter), Exhibits D-1 and D-2 (Work Letter), Exhibit D-3 (Warm Shell Specifications, Exhibit E (Expenses and Taxes), Exhibit F (Parking Agreement), and Exhibit G (Form of Letter of Credit).
34. Option to Renew .
Provided this Lease is in full force and effect and Tenant is not in default under any of the other terms and conditions of this Lease at the time of notification, Tenant shall have one (1) option to renew (the “Renewal Option”) this Lease for a term of five (5) years (the “Renewal Term”), for the portion of the Premises being leased by Tenant as of the date the Renewal Term is to commence, on the same terms and conditions set forth in this Lease, except as modified by the terms; covenants and conditions as set forth below:
A. if Tenant elects to exercise the Renewal Option, then Tenant shall provide Landlord with written notice no earlier than the date which is fifteen (15) months prior to the expiration of the Term of this Lease but no later than the date which is twelve (12) months prior to the expiration of the Term of this Lease. If Tenant fails to provide such notice, Tenant shall have no further or additional right to extend or renew the Term of this Lease.
B. The Annual Rent and Monthly Installment of Rent in effect at the expiration of the Term of this Lease shall be increased to reflect the Prevailing Market (as defined in Section 34.I.) rate. Landlord shall advise Tenant of the new Annual Rent and Monthly Installment of Rent for the Premises no later than thirty (30) days after receipt of Tenant’s written request therefor. Said request shall be made no earlier than thirty (30) days prior to the first date on which Tenant may exercise its Renewal Option under this Article 34. Said notification of the new Annual Rent and Monthly Installment of Rent may include a provision for its escalation to provide for a change in the Prevailing Market rate between the time of notification and the commencement of the Renewal Term. Notwithstanding anything to the contrary set forth herein, in no event shall the rate of the Annual Rent and Monthly Installment of Rent for the Renewal Term he less than the rate of the Annual Rent and Monthly Installment of Rent in the preceding period (the “ Minimum Renewal Rental Rate ”).
C. If Tenant and Landlord are unable to agree on a mutually acceptable Annual Rent and Monthly Installment of Rent for the Renewal Term not later than sixty (60) days prior to the expiration of the initial Term, then Landlord and Tenant, within five (5) days after such date, shall each simultaneously submit to the other, in a sealed envelope, its good faith estimate of the Prevailing Market rate for the Premises during the Renewal Term (collectively referred to as the
 
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“ Estimates ”), subject to the terms of Section 34.E below regarding the Minimum Renewal Rental Rate. If the higher of such Estimates is not more than one hundred five percent (105%) of the lower of such Estimates, then the Prevailing Market rate shall be the average of the two Estimates. If the Prevailing Market rate is not established by the exchange of Estimates, then, within seven (7) Business Days after the exchange of Estimates, Landlord and Tenant shall each select an appraiser to determine which of the two Estimates most closely reflects the Prevailing Market rate for the Premises during the Renewal Term. Each appraiser so selected shall be certified as an MAI appraiser or as an ASA appraiser and shall have had at least five (5) years experience within the previous ten (10) years as a real estate appraiser working in the San Mateo/Foster City/Redwood Shores, California area, with working knowledge of current rental rates and practices. For purposes hereof, an “ MAI ” appraiser means an individual who holds an MAI designation conferred by, and is an independent member of, the American Institute of Real Estate Appraisers (or its successor organization, or in the event there is no successor organization, the organization and designation most similar), and an “ASA” appraiser means an individual who holds the Senior Member designation conferred by, and is an independent member of the American Society of Appraisers (or its successor organization, or, in the event there is no successor organization, the organization and designation most similar).
D. Upon selection, Landlord’s and Tenant’s appraisers shall work together in good faith to agree upon which of the two Estimates most closely reflects the Prevailing Market rate for the Premises. The Estimates chosen by such appraisers shall be binding on both Landlord and Tenant, subject to the Minimum Renewal Rental Rate. If either Landlord or Tenant fails to appoint an appraiser within the seven (7) Business Day period referred to above, the appraiser appointed by the other party shall be the sole appraiser for the purposes hereof. If the two appraisers cannot agree upon which of the two Estimates most closely reflects the Prevailing Market rate within twenty (20) days after their appointment, then, within ten (10) days after the expiration of such twenty (20) day period, the two appraisers shall select a third appraiser meeting the aforementioned criteria. Once the third appraiser (i.e., the arbitrator) has been selected as provided for above, then, as soon thereafter as practicable but in any case within fourteen (14) Business Days, the arbitrator shall make his or her determination of which of the two Estimates most closely reflects the Prevailing Market rate and such Estimate shall be binding on both Landlord and Tenant as the Prevailing Market rate for the Premises, subject to the Minimum Renewal Rental Rate. If the arbitrator believes that expert advice would materially assist him or her, he or she may retain one or more qualified persons to provide such expert advice, The parties shall share equally in the costs of the arbitrator and of any experts retained by the arbitrator. Any fees of any appraiser, counsel or experts engaged directly by Landlord or Tenant, however, shall be borne by the party retaining such appraiser, counsel or expert.
E. If the Prevailing Market rate has not been determined by the commencement date of the Renewal Term, Tenant shall pay Monthly Installments of Rent upon the terms and conditions in effect during the last month of the initial Term until such time as the Prevailing Market rate has been determined. Upon such determination, the Annual Rent and Monthly Installments of Rent for the Premises shall be retroactively adjusted to the commencement of such Renewal Term for the Premises.
F. This Renewal Option is not transferable; the parties hereto acknowledge and agree that they intend that the aforesaid option to renew this Lease shall be “personal” to Tenant as set forth above and that in no event will any assignee or sublessee have any rights to exercise this Renewal Option.
 
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G. If Tenant validly exercises or fails to exercise this Renewal Option, Tenant shall have no further right to extend the Term of this Lease.
H. For purposes of this Renewal Option, “Prevailing Market” shall mean the arms length fair market annual rental rate per rentable square foot under renewal leases and amendments entered into on or about the date on which the Prevailing Market is being determined hereunder for space comparable to the Premises in the Building and buildings comparable to the Building in the same rental market in the San Mateo/Foster City/Redwood Shores, California area as of the date the Renewal Term is to commence, taking into account the specific provisions of this Lease which will remain constant. The determination of Prevailing Market shall take into account any material economic differences between the terms of this Lease and any comparison lease or amendment, such as rent abatements, construction costs and other concessions and the manner, if any, in which the landlord under any such lease is reimbursed for operating expenses and taxes. The determination of Prevailing Market shall also take into consideration any reasonably anticipated changes in the Prevailing Market rate from the time such Prevailing Market rate is being determined and the time such Prevailing Market rate will become effective under this Lease.
I. Notwithstanding anything herein to the contrary, the Renewal Option is subject and subordinate to the expansion rights (whether such rights are designated as a right of first offer, right of first refusal, expansion option or otherwise) of any tenant of the Building existing on the date hereof.
35. Letter of Credit .
Concurrent with Tenant’s execution and delivery of this Lease to Landlord, Tenant shall deliver to Landlord, as collateral for the full performance by Tenant of all of its obligations under this Lease and for all losses and damages Landlord may suffer as a result of Tenant’s failure to comply with one or more provisions of this Lease, including, but not limited to, any post lease termination damages under Section 1951.2 of the California Civil Code, an Irrevocable Standby Letter of Credit (the “Letter of Credit”) in the total amount of One Million Three Hundred Thousand Dollars ($1,300,000.00). The following terms and conditions shall apply to the Letter of Credit:
1. The Letter of Credit shall be in favor of Landlord, shall be issued by a bank acceptable to Landlord, shall comply with all of the terms and conditions of this Article and shall otherwise be substantially in the form attached hereto as Exhibit G .
2. The Letter of Credit or any replacement Letter of Credit shall be irrevocable for the term thereof and shall automatically renew on a year to year basis until a period ending not earlier than two months subsequent to the Termination Date (the “LOC Expiration Date”) without any action whatsoever on the part of Landlord; provided that the issuing bank shall have the right not to renew the Letter of Credit by giving written notice to Landlord not less than thirty (30) days prior to the expiration of the then current term of the Letter of Credit that it does not
 
31

intend to renew the Letter of Credit. Tenant understands that the election by the issuing bank not to renew the Letter of Credit shall not, in any event, diminish the obligation of Tenant to deposit the Security Deposit or maintain such an irrevocable Letter of Credit in favor of Landlord through the LOC Expiration Date.
3. Landlord, or its then authorized representative, upon Tenant’s failure to comply with one or more provisions of this Lease, or as otherwise specifically agreed by Landlord and Tenant pursuant to this Lease or any amendment hereof, without prejudice to any other remedy provided in this Lease or by Regulations, shall have the right from time to time to make one or more draws on the Letter of Credit and use all or part of the proceeds in accordance with Section (4) below. In addition, if Tenant fails to furnish a renewal or replacement letter of credit complying with all of the provisions of this Article 35 at least sixty (60) days prior to the stated expiration date of the Letter of Credit then held by Landlord, Landlord may draw upon such Letter of Credit and hold the proceeds thereof (and such proceeds need not be segregated) in accordance with the terms of this Article 35. Funds may be drawn down on the Letter of Credit upon presentation to the issuing bank of Landlord’s (or Landlord’s then authorized representative’s) certification set forth in Exhibit G .
4. Tenant acknowledges and agrees (and the Letter of Credit shall so state) that the Letter of Credit shall be honored by the issuing bank without inquiry as to the truth of the statements set forth in such draw request and regardless of whether the Tenant disputes the content of such statement. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (a) against any rent or other amounts payable by Tenant under this Lease that is unpaid and was not paid when due; (b) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of Tenant’s failure to comply with one or more provisions of this Lease, including any damages arising under Section 1951.2 of the California Civil Code following termination of this Lease; (c) against any costs incurred by Landlord in connection with this Lease (including attorneys’ fees); and (d) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s default. Provided Tenant has performed all of its obligations under this Lease, Landlord agrees to pay to Tenant within sixty (60) days after the LOC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided, that if prior to the LOC Expiration Date a voluntary petition is filed by Tenant or any guarantor, or an involuntary petition is filed against Tenant or any guarantor by any of Tenant’s or guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.
5. lf, as result of any application or use by Landlord of all or any part of the Letter of Credit, the amount of the Letter of Credit shall be less than the amount set forth in this Article 35, Tenant shall, within ten (10) Business Days thereafter, provide Landlord with additional letter(s) of credit in an amount equal to the deficiency (or a replacement letter of credit in the total amount required pursuant to this Article 35), and any such additional (or replacement) letter
 
32

of credit shall comply with all of the provisions of this Article 35, and if Tenant fails to comply with the foregoing, notwithstanding anything to the contrary contained in this Lease, the same shall constitute an incurable Event of Default by Tenant. Tenant further covenants and warrants that it will neither assign nor encumber the Letter of Credit or any part thereof and that neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance.
6. Landlord may, at any time and without notice to Tenant and without first obtaining Tenant’s consent thereto, transfer all or any portion of its interest in and to the Letter of Credit to another party, person or entity, including Landlord’s mortgagee and/or to have the Letter of Credit reissued in the name of Landlord’s mortgagee. If Landlord transfers its interest in the Building and transfers the Letter of Credit (or any proceeds thereof then held by Landlord) in whole or in part to the transferee, Landlord shall, without any further agreement between the parties hereto, thereupon be released by Tenant from all liability therefor if such transferee has assumed all of Landlord’s obligations under this Lease. The provisions hereof shall apply to every transfer or assignment of all or any part of the Letter of Credit to a new landlord. In connection with any such transfer of the Letter of Credit by Landlord, Tenant shall, at Tenant’s sole cost and expense, execute and submit to the issuer of the Letter of Credit such applications, documents and instruments as may be necessary to effectuate such transfer. Landlord shall be responsible for paying the issuer’s transfer and processing fees in connection with any transfer of the Letter of Credit.
7. If the Letter of Credit expires earlier than the LOC Expiration Date, or the issuing bank notifies Landlord that it shall not renew the Letter of Credit, Landlord shall accept a renewal thereof or substitute letter credit (such renewal or substitute Letter of Credit to be in effect not later than thirty (30) days prior to the expiration thereof), irrevocable and automatically renewable through the LOC Expiration Date upon the same terms as the expiring Letter of Credit or upon such other terms as may be acceptable to Landlord. However, if (a) the Letter of Credit is not timely renewed, or (b) a substitute Letter of Credit, complying with all of the terms and conditions of this paragraph is not timely received, Landlord may present such Letter of Credit to the issuing bank, and the entire sum so obtained shall be paid to Landlord, to be held by Landlord in accordance with Article 6 of this Lease. Notwithstanding the foregoing, Landlord shall be entitled to receive from Tenant all attorneys’ fees and costs incurred in connection with the review of any proposed substitute Letter of Credit pursuant to this Section.
8. Landlord and Tenant (a) acknowledge and agree that in no event or circumstance shall the Letter of Credit or any renewal thereof or substitute therefor or any proceeds thereof be deemed to be or treated as a “security deposit” under any Law applicable to security deposits in the commercial context including Section 1950.7 of the California Civil Code, as such section now exist or as may be hereafter amended or succeeded (“Security Deposit Laws”), (b) acknowledge and agree that the Letter of Credit (including any renewal thereof or substitute therefor or any proceeds thereof) is not intended to serve as a security deposit, and the Security Deposit Laws shall have no applicability or relevancy thereto, and (c) waive any and all rights, duties and obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws. Tenant hereby waives the provisions of Section 1950.7 of the California Civil Code and all other provisions of Laws, now or hereafter in effect, which (i) establish the time frame by which Landlord must refund a security deposit under a lease, and/or
 
33

(ii) provide that Landlord may claim from the security deposit only those sums reasonably necessary to remedy defaults in the payment of rent, to repair damage caused by Tenant or to clean the Premises, it being agreed that Landlord may, in addition, claim those sums specified above in this Section 35 and/or those sums reasonably necessary to compensate Landlord for any loss or damage caused by Tenant’s breach of this Lease or the acts or omission of Tenant or any other Tenant Entities, including any damages Landlord suffers following termination of this Lease.
9. Notwithstanding anything to the contrary contained in this Lease, in the event that at any time the financial institution which issues said Letter of Credit is declared insolvent by the FDIC or is closed for any reason, Tenant must immediately provide a substitute letter of credit that satisfies the requirements of this Lease hereby from a financial institution acceptable to Landlord, in Landlord’s sole discretion.
10. Provided no event of default has occurred hereunder in the twelve (12) month period prior to the reduction, and no less than thirty (30) days prior to each requested letter of credit reduction date, Tenant may reduce the amount of Letter of Credit to the amounts specified as follows: (i) to $1,000,000.00 effective as of the first day of the 37th full calendar month of the Term; and (ii) to $700,000.00 effective as of as of the first day of the 49th full calendar month of the Term. Notwithstanding the foregoing, subject to the remaining terms of this Section, and provided Tenant has timely paid all Rent due under this Lease during the 12 month period immediately preceding the effective date of any reduction of the Letter of Credit amount, and Tenant’s Financial Information (defined below) reflects a tangible net worth exceeding $200,000,000.00 for the four (4) consecutive calendar quarters immediately prior to the date of Tenant’s request for reduction in the Letter of Credit amount, Tenant shall have the right to reduce the amount of the Letter of Credit amount so that the new Letter of Credit amount will he $700,000.00. In addition, at any time following the first day of the 37th month of the Term, provided Tenant has timely paid all Rent due under this Lease during the 12 month period immediately preceding the effective date of any reduction of the Letter of Credit amount, and Tenant’s Financial Information reflects a tangible net worth exceeding $400,000,000.00 for three (3) of the four (4) consecutive calendar quarters immediately prior the date of Tenant’s request for reduction in the Letter of Credit amount, Tenant shall have the right to reduce the amount of the Letter of Credit amount so that the new Letter of Credit amount will be $350,000.00. Notwithstanding anything to the contrary contained herein, if Tenant has been in default under this Lease at any time prior to the effective date of any reduction of the Letter of Credit amount and Tenant has failed to cure such default within any applicable cure period, then Tenant shall have no further right to reduce the amount of the Letter of Credit amount as described herein. If Tenant is entitled to a reduction in the Letter of Credit amount, Tenant shall provide Landlord with written notice requesting that the Letter of Credit amount be reduced as provided above (the “Reduction Notice”). Concurrent with Tenant’s delivery of the Reduction Notice, Tenant shall deliver to Landlord for review Tenant’s financial statements prepared in accordance with generally accepted accounting principles and audited by a nationally recognized public accounting firm acceptable to Landlord, and any other financial information requested by Landlord (“Tenant’s Financial Information”). If Tenant provides Landlord with a Reduction Notice, and Tenant is entitled to reduce the Letter of Credit amount as provided herein, any reduction in the Letter of Credit amount shall be accomplished by Tenant providing Landlord with a substitute Letter of Credit in the reduced amount, which substitute Letter of Credit shall comply with the requirements of this Article 35, and Landlord shall execute any documents and take any actions reasonably requested b) Tenant to effectuate such reduction.
 
34

11. Notwithstanding anything contained in this Lease to the contrary, Tenant shall have the right, in its sole discretion at any time(s), to replace all of the Letter of Credit with cash, which cash shall thereupon become part of the Security Deposit held by Landlord under the Lease and shall be subject to the terms and conditions of Section 6 of the Lease as if it were part of the original Security Deposit delivered to Landlord upon Tenant’s execution of the Lease. For purposes hereof; the term “cash” shall mean (a) a certified check payable to Landlord, or (b) a wire of immediately available funds to an account designated by Landlord. In the event that tenant replaces the entire Letter of Credit with cash, Landlord shall promptly return the Letter of Credit to Tenant, and Tenant shall have no further obligations under this Article 35. In addition, Tenant shall have the right, in its sole discretion at any time(s), to replace the Letter of Credit then held by Landlord with a new Letter of Credit so long as such replacement Letter of Credit complies with all of the provisions of this Article 35, shall be irrevocable, transferable and otherwise upon the same terms as the replaced Letter of Credit or such other terms as may be acceptable to Landlord in its sole discretion.
36. Signage .
A. Building Signage .
1. Tenant shall be entitled to the greater of: (i) one (1) exclusive tenant identification sign per Building that does not to exceed 75 square feet, or (ii) Tenant’s pro rata share of the maximum exterior signage permitted by applicable Laws that is allocated to the parcel on which the Building is located (the “Building Signage”). The exact location of the Building Signage shall be determined by Tenant, subject to all applicable Laws, any reasonable signage guidelines for the Project established by Landlord that are provided to Tenant prior to installation of the Building Signage, and Landlord’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Such right to the Building Signage is personal to Tenant and is subject to the following terms and conditions: (a) Tenant shall submit plans and drawings for the Building Signage to Landlord and to the City of San Mateo and to any other public authorities having jurisdiction and shall obtain written approval from Landlord (not to be unreasonably withheld, conditioned or delayed) and, if applicable, each such jurisdiction prior to installation, and shall comply with all applicable Laws; (b) Tenant shall, at Tenant’s sole cost and expense, design, construct and install the Building Signage; (c) the size, color and design of the Building Signage shall be subject to Landlord’s prior written approval; and (d) Tenant shall maintain the Building Signage in good condition and repair, and all costs of maintenance and repair shall be borne by Tenant. Maintenance shall include, without limitation, cleaning and, if the Building Signage is illuminated, relamping at reasonable intervals. Tenant shall be responsible for any electrical energy used in connection with the Building Signage. Notwithstanding the foregoing, Tenant shall not be liable for any fee in connection with Tenant’s right to display the Building Signage in accordance with this Lease. At Landlord’s option, Tenant’s right to the Building Signage may be revoked and terminated upon occurrence of any of the following events: (i) Tenant shall be in default under this Lease beyond any applicable notice and cure periods; (ii) Tenant leases or occupies less than 75% of the Premises, or (iii) this Lease shall terminate or otherwise no longer be in effect.
 
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2. Upon the expiration or earlier termination of this Lease or at such other time that Tenant’s signage rights are terminated pursuant to the terms hereof, if Tenant fails to remove the Building Signage and repair the Building in accordance with the terms of this Lease, Landlord shall cause the Building Signage to be removed from the Building and the Building to be repaired and restored to the condition which existed prior to the installation of the Building Signage (including, if necessary, the replacement of any precast concrete panels), all at the sole cost and expense of Tenant and otherwise in accordance with this Lease, without further notice from Landlord notwithstanding anything to the contrary contained in this Lease. Tenant shall pay all costs and expenses for such removal and restoration within fifteen (15) business days following delivery of an invoice therefor accompanied by reasonable supporting documentation. The rights provided in this Section 36.A shall be non-transferable (except with respect to a Permitted Transferee) unless otherwise agreed by Landlord in writing in its sole discretion.
B. Monument Signage .
1. So long as (a) Tenant is not in default beyond applicable notice and cure periods under the terms of the Lease; and (b) Tenant has not assigned this Lease (other than to a Permitted Transferee) or sublet greater than 75% of the Building, Tenant shall have the right to have its name listed on the shared monument sign for the Project (the “Monument Sign”), subject to the terms of this Section. The design, size and color of Tenant’s signage with Tenant’s name to be included on the Monument Sign, and the manner in which it is attached to the Monument Sign, shall comply with all applicable Laws and shall be subject to the approval of Landlord (which approval shall not be unreasonably withheld, conditioned or delayed) and any applicable governmental authorities. Landlord shall have the right to require that all names on the Monument Sign be of the same size and style. Tenant must obtain Landlord’s written consent to any proposed signage and lettering prior to its fabrication and installation. Tenant’s right to place its name on the Monument Sign, and the location of Tenant’s name on the Monument Sign, shall be subject to Landlord’s approval, which approval shall not be unreasonably withheld, conditioned or delayed. Tenant’s right to place its name on any Building Monument Sign shall be free of charge during the Term, and Tenant’s right to place its name on any Project Monument Sign shall be upon financial terms that are the same as those terms granted to any other tenant of the Project (considering the location and size of the tenant’s name on such Project Monument Sign). To obtain Landlord’s consent, Tenant shall submit design drawings to Landlord showing the type and sizes of all lettering; the colors, finishes and types of materials used; and (if applicable and Landlord consents in its sole discretion) any provisions for illumination. Although the Monument Sign will be maintained by Landlord, Tenant shall pay its proportionate share of the cost of any maintenance and repair associated with the Monument Sign. In the event that additional names are listed on the Monument Sign, all future costs of maintenance and repair shall be prorated between Tenant and the other parties that are listed on such Monument Sign.
2. Tenant’s name on the Monument Sign shall be designed, constructed, installed, insured, maintained, repaired and removed from the Monument Sign all at Tenant’s sole risk, cost and expense. Tenant, at its cost, shall be responsible for the maintenance, repair or replacement of Tenant’s signage on the Monument Sign, which shall be maintained in a manner reasonably satisfactory to Landlord.
 
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3. If during the Term (and any extensions thereof) (a) Tenant is in default under the terms of this Lease after the expiration of applicable cure periods; (b) Tenant leases less than 75% of the Building; or (c) Tenant assigns this Lease (other than to a Permitted Transferee), then Tenant’s rights granted herein will terminate and Landlord may remove Tenant’s name from the Monument Sign at Tenant’s sole cost and expense and restore the Monument Sign to the condition it was in prior to installation of Tenant’s signage thereon, ordinary wear and tear excepted. The cost of such removal and restoration shall be payable as additional rent within five (5) days of Landlord’s demand. Landlord may, at anytime during the Term (or any extension thereof), upon five (5) days prior written notice to Tenant, relocate the position of Tenant’s name on the Monument Sign. The cost of such relocation of Tenant’s name shall be at the cost and expense of Landlord.
4. The rights provided in this Section 36.B shall be non-transferable (except with respect to a Permitted Transferee) unless otherwise agreed by Landlord in writing in its sole discretion.
C. Lobby Signage . Subject to the terms of Section 9 of this Lease, provided that Tenant leases and is in occupancy of the entire Building, Tenant may install signage in the lobby of the Building that is visible from the exterior of the Building through the entry doors. Such signage shall be designed, constructed, installed, insured, maintained, repaired and removed from the lobby all at Tenant’s sole cost and expense. Tenant, at its cost, shall be responsible for the maintenance, repair or replacement of Tenant’s lobby signage.
 
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Landlord and Tenant have executed this Lease as of the day and year first above written.

	  	LANDLORD:	
		
	  	LOCON SAN MATEO, LLC,
a Delaware limited liability company	
		
	  	By: Lowe Enterprises Real Estate Group, its Authorized Agent	
			
	  	By:	 	/s/ Hanns Lee	
	  	Name:	 	Hanns Lee	
	  	Title:	 	Senior Vice President	
		
	  	TENANT:	
		
	  	WOODMAN LABS, INC.,
a California corporation	
			
	  	By:	 	/s/ Nicholas Woodman	
	  	Name:	 	Nicholas Woodman	
	  	Title:	 	CEO	
			
	  	By:	 	/s/ Kurt Amundson	
	  	Name:	 	Kurt Amundson	
	  	Title:	 	CFO	
 
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EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”) and WOODMAN LABS, INC. , a California corporation (“ Tenant ”) for space in the Buildings located at 3000E and 3000F Clearview Way, San Mateo, California.

 
A-1

 

 
A-2

 

 
A-3

EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the Premises, the Building, the parking facility (if any), the Property, the Project and the appurtenances. Capitalized terms have the same meaning as defined in the Lease.
 
1.	Sidewalks, doorways, vestibules, halls, stairways and other similar areas shall not be obstructed by Tenant or used by Tenant for any purpose other than ingress and egress to and from the Premises. No rubbish, litter, trash, or material shall be placed, emptied, or thrown in those areas. At no time shall Tenant permit Tenant’s employees to loiter in Common Areas or elsewhere about the Building, Property or Project.	
 
2.	Plumbing fixtures and appliances shall be used only for the purposes for which designed, and no sweepings, rubbish, rags or other unsuitable material shall be thrown or placed in the fixtures or appliances. Damage resulting to fixtures or appliances by Tenant, its agents, employees or invitees, shall be paid for by Tenant, and Landlord shall not be responsible for the damage.	
 
3.	No signs, advertisements or notices shall be painted or affixed to windows, doors or other parts of the Building or Project, except those of such color, size, style and in such places as are first approved in writing by Landlord. All tenant identification and suite numbers at the entrance to the Premises shall be installed by Landlord, at Tenant’s cost and expense, using the standard graphics for the Building. Except in connection with the hanging of lightweight pictures and wall decorations, no nails, hooks or screws shall be inserted into any part of the Premises, Building or Project except by the Building maintenance personnel.	
 
4.	Landlord may provide and maintain in the first floor (main lobby) of the Building an alphabetical directory board or other directory device listing tenants, and no other directory shall be permitted unless previously consented to by Landlord in writing.	
 
5.	Tenant shall not place any lock(s) on any door in the Premises, Building or Project without Landlord’s prior written consent and Landlord shall have the right to retain at all times and to use keys to all locks within and into the Premises. A reasonable number of keys to the locks on the entry doors in the Premises shall be furnished by Landlord to Tenant at Tenant’s cost, and Tenant shall not make any duplicate keys. All keys shall be returned to Landlord at the expiration or early termination of this Lease.	
 
6.	All contractors, contractor’s representatives and installation technicians performing work in the Building or Project shall be subject to Landlord’s prior approval and shall be required to comply with Landlord’s standard rules, regulations, policies and procedures, which may be revised from time to time.	
 
7.	Movement in or out of the Building or the Project of furniture or office equipment, or dispatch or receipt by Tenant of merchandise or materials requiring the use of elevators, stairways, lobby areas or loading dock areas, shall be restricted to hours designated by	
 
B-1

 	Landlord. Tenant shall obtain Landlord’s prior approval by providing a detailed listing of the activity. If approved by Landlord, the activity shall be under the supervision of Landlord and performed in the manner required by Landlord. Tenant shall assume all risk for damage to articles moved and injury to any persons resulting from the activity. If equipment, property, or personnel of Landlord or of any other party is damaged or injured as a result of or in connection with the activity, Tenant shall be solely liable for any resulting damage or loss.	
 
8.	Landlord shall have the right to approve the weight, size, or location of heavy equipment or articles in and about the Premises. Damage to the Building or the Project by the installation, maintenance, operation, existence or removal of Tenant’s Property shall be repaired at Tenant’s sole expense.	
 
9.	Corridor doors, when not in use, shall be kept closed.	
 
10.	Tenant shall not: (l) make or permit any improper, objectionable or unpleasant noises or odors in the Building or the Project, or otherwise interfere in any way with other tenants or persons having business with them; (2) solicit business or distribute, or cause to be distributed, in any portion of the Building or the Project, handbills, promotional materials or other advertising; or (3) conduct or permit other activities in the Building or the Project that might, in Landlord’s sole opinion, constitute a nuisance.	
 
11.	No animals, except those assisting handicapped persons, shall be brought into the Building or the Project or kept in or about the Premises.	
 
12.	No inflammable, explosive or dangerous fluids or substances shall be used or kept by Tenant in the Premises, the Building, the Property or about the Project. Tenant shall not, without Landlord’s prior written consent, use, store, install, spill, remove, release or dispose of, within or about the Premises or any other portion of the Building, the Property or the Project, any asbestos- containing materials or any solid, liquid or gaseous material now or subsequently considered toxic or hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any other applicable environmental Law which may now or later be in effect. Tenant shall comply with all Laws pertaining to and governing the use of these materials by Tenant, and shall remain solely liable for the costs of abatement and removal.	
 
13.	Tenant shall not use or occupy the Premises in any manner or for any purpose which might injure the reputation or impair the present or future value of the Premises, the Building or the Project. Tenant shall not use, or permit any part of the Premises to be used, for lodging, sleeping or for any illegal purpose.	
 
14.	Tenant shall not take any action which would violate Landlord’s labor contracts or which would cause a work stoppage, picketing, labor disruption or dispute, or interfere with Landlord’s or any other tenant’s or occupant’s business or with the rights and privileges of any person lawfully in the Building or the Project (“Labor Disruption”). Tenant shall take the actions necessary to resolve the Labor Disruption, and shall have pickets removed and, at the request of Landlord, immediately terminate any work in the Premises	
 
B-2

that gave rise to the Labor Disruption, until Landlord gives its written consent for the work to resume. Tenant shall have no claim for damages against Landlord or any of the Landlord Parties, nor shall the Commencement Date of the Term be extended as a result of the above actions.
 
15.	Tenant shall not install, operate or maintain in the Premises or in any other area of the Building or the Project, electrical equipment that would overload the electrical system beyond its capacity for proper, efficient and safe operation as determined solely by Landlord. Tenant shall not furnish cooling or heating to the Premises, including, without limitation, the use of electric or gas heating devices, without Landlord’s prior written consent. Tenant shall not use more than its proportionate share of telephone lines and other telecommunication facilities available to service the Building or the Project.	
 
16.	Tenant shall not operate or permit to be operated a coin or token operated vending machine or similar device (including, without limitation, telephones, lockers, toilets, scales, amusement devices and machines for sale of beverages, foods, candy, cigarettes and other goods), except for machines for the exclusive use of Tenant’s employees, and then only if the operation does not violate the lease of any other tenant in the Building or the Project.	
 
17.	Bicycles and other vehicles are not permitted inside the Building or on the walkways outside the Building, except in areas designated by Landlord.	
 
18.	Landlord may from time to time adopt systems and procedures for the security and safety of the Building, the Property, and the Project, its occupants, entry, use and contents. Tenant, its agents, employees, contractors, guests and invitees shall comply with Landlord’s systems and procedures.	
 
19.	Landlord shall have the right to prohibit the use of the name of the Building or the Project or any other publicity by Tenant that in Landlord’s sole opinion may impair the reputation of the Building or the Project or their desirability. Upon written notice from Landlord, Tenant shall refrain from and discontinue such publicity immediately.	
 
20.	Tenant shall not canvass, solicit or peddle in or about the Building, the Property or the Project.	
 
21.	Neither Tenant nor its agents, employees, contractors, guests or invitees shall smoke or permit smoking in the Common Areas or the Exterior Common Areas, unless the Common Areas or the Exterior Common Areas have been declared a designated smoking area by Landlord, nor shall the above parties allow smoke from the Premises to emanate into the Common Areas or any other part of the Building or the Project. Landlord shall have the right to designate the Building and/or the Project (including the Premises) as a non-smoking building.	
 
22.	Landlord shall have the right to designate and approve standard window coverings for the Premises and to establish rules to assure that the Building presents a uniform exterior appearance. Tenant shall ensure, to the extent reasonably practicable, that window coverings are closed on windows in the Premises while they are exposed to the direct rays of the sun.	
 
B-3

23.	Deliveries to and from the Premises shall be made only at the times, in the areas and through the entrances and exits designated by Landlord. Tenant shall not make deliveries to or from the Premises in a manner that might interfere with the use by any other tenant of its premises or of the Common Areas, any pedestrian use, or any use which is inconsistent with good business practice.	
 
24.	The work of cleaning personnel shall not be hindered by Tenant after 5:30 P.M., and cleaning work may be done at any time when the offices are vacant. Windows, doors and fixtures may be cleaned at any time. Tenant shall provide adequate waste and rubbish receptacles to prevent unreasonable hardship to the cleaning service.	
 
B-4

EXHIBIT C
COMMENCEMENT LETTER
(EXAMPLE)

Date	 	 	
		
Tenant	 	 	
Address	 	 	

 
Re:	Commencement Letter with respect to that certain Lease dated as of the             day of             , 20    , by and between                     , as Landlord, and                     , as Tenant, for                     rentable square feet on the                     floor of the Building located at                     , California.	
Dear                      :
In accordance with the terms and conditions of the above referenced Lease, Tenant accepts possession of the Premises and agrees:
1. The Commencement Date [E Premises Commencement Date] [Initial F Premises Commencement Date] [Additional F Premises Commencement Date] of the Lease is                     ;
2. The Termination Date of the Lease is                     .
3. The schedule of the Base Rent for the Premises set forth on the Reference Pages is deleted in its entirety, and the following is substituted therefor:
[insert rent schedule]
4. Capitalized terms not defined herein shall have the same meaning as set forth in the Lease.
Please acknowledge your acceptance of possession and agreement to the terms set forth above by signing all 3 counterparts of this Commencement Letter in the space provided and returning 2 fully executed counterparts to my attention.

Sincerely,	

Authorized Signatory / Property Manager	
	
Agreed and Accepted:	
		
        Tenant:	 	 	
 
C-1

			
By:	 	 	
Name:	 	 	
Title:	 	 	
Date:	 	 	
 
C-2

EXHIBIT D-1
WORK LETTER
BUILDING E
This Exhibit is attached to and made a part of the Lease by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”) and WOODMAN LABS, INC. , a California corporation (“ Tenant ”) for space in the Buildings located at 3000E and 3000F Clearview Way, San Mateo, California.
 
1.	This Exhibit D-1 shall set forth the obligations of Landlord and Tenant with respect to the improvements to be performed in Premises located in Building E for Tenant’s use. All improvements described in this Exhibit D-1 to be constructed in and upon the Premises located in Building E by Landlord are hereinafter referred to as the “Building E Tenant Improvements.” It is agreed that construction of the Building E Tenant Improvements will be completed at Landlord’s sole cost and expense (subject to the Building E Maximum Amount and further subject to the terms of Section 5 below), using Building standard methods, materials, and finishes. Notwithstanding the foregoing, Landlord and Tenant acknowledge that Plans (hereinafter defined) for the Building E Tenant Improvements have not yet been prepared and, therefore, it is impossible to determine the exact cost of the Building E Tenant Improvements at this time. Accordingly, Landlord and Tenant agree that Landlord’s obligation to pay for the cost of Building E Tenant Improvements (inclusive of the cost of preparing Plans, obtaining permits, a construction management fee equal to 5% of the total construction costs, and other related costs) shall be limited to $2,271,750.00 ($50.00 per rentable square foot of the Premises located in Building E) (the “Building E Maximum Amount”) and that Tenant shall be responsible for the cost of Building E Tenant Improvements, plus any applicable state sales or use tax, if any, to the extent that it exceeds the Building E Maximum Amount. Landlord shall enter into a direct contract for the Building E Tenant Improvements with a general contractor selected by Landlord. In addition, Landlord shall have the right to select and/or approve of any subcontractors used in connection with the Building E Tenant Improvements.	
 
2.	Tenant shall be solely responsible for the timely preparation and submission to Landlord of the final architectural, electrical and mechanical construction drawings, plans and specifications (called “Plans”) necessary to construct the Building F Tenant Improvements, which Plans shall be subject to approval by Landlord and Landlord’s architect and engineers and shall comply with their requirements to avoid aesthetic or other conflicts with the design and function of the balance of the Building. Tenant shall be responsible for all elements of the design of the Plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of the Plans shall in no event relieve Tenant of the responsibility for such design. If requested by Tenant, Landlord’s architect will prepare the Plans necessary for such construction at Tenant’s cost. Whether or not the layout and Plans are prepared with the help (in whole or in part) of Landlord’s architect, Tenant	
 
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 	agrees to remain solely responsible for the timely preparation and submission of the Plans and for all elements of the design of such Plans and for all costs related thereto. Tenant has assured itself by direct communication with the architect and engineers (Landlord’s or its own, as the case may be) that the final approved Plans can be delivered to Landlord on or November 21, 2011 (the “Plans Due Date”), provided that Tenant promptly furnishes complete information concerning its requirements to said architect and engineers as and when requested by them. Tenant covenants and agrees to cause said final, approved Plans to be delivered to Landlord on or before said Plans Due Date and to devote such time as may be necessary in consultation with said architect and engineers to enable them to complete and submit the Plans within the required time limit. Time is of the essence in respect of preparation and submission of Plans by Tenant. If the Plans are not fully completed and approved by the Plans Due Date, Tenant shall he responsible for one day of Tenant Delay (as defined in the Lease to which this Work Letter is attached) for each day during the period beginning on the day following the Plans Due Date and ending on the date completed Plans are approved. (The word “architect” as used in this Exhibit D-1 shall include an interior designer or space planner.)	
 
3.	If Landlord’s estimate and/or the actual cost of the Building E Tenant Improvements shall exceed the Building E Maximum Amount, Landlord, prior to commencing any construction of Building E Tenant Improvements, shall submit to Tenant a written estimate setting forth the anticipated cost of the Building E Tenant Improvements, including but not limited to labor and materials, contractor’s fees and permit fees. Within three (3) Business Days thereafter, Tenant shall either notify Landlord in writing of its approval of the cost estimate, or specify its objections thereto and any desired changes to the proposed Building E Tenant Improvements. If Tenant notifies Landlord of such objections and desired changes, Tenant shall work with Landlord to reach a mutually acceptable alternative cost estimate.	
 
4.	If the estimated cost of construction shall exceed the Building E Maximum Amount (such amounts exceeding the Building E Maximum Amount being herein referred to as the “Excess Costs”), Tenant shall pay to Landlord such Excess Costs, plus any applicable state sales or use tax thereon, within thirty (30) days of Landlord’s demand (which demand shall be made no earlier than the date that Landlord enters into the construction contract with the general contractor); provided, however, that if the actual cost of construction is less than the estimated cost, Landlord shall refund such overage to Tenant within thirty (30) days following completion of the Building E Tenant Improvements. In addition, if during the construction process, there are additional costs of the Building E Tenant Improvements that were not included in the initial cost estimate, the parties shall comply with the process set forth in Section 3 above, and Tenant shall pay such additional Excess Costs to Landlord within thirty (30) days of Landlord’s demand. The amounts payable by Tenant hereunder constitute rent payable pursuant to the Lease, and the failure to timely pay same constitutes an event of default under the Lease.	
 
5.	If Tenant shall request any change, addition or alteration in any of the Plans after approval by Landlord, Landlord shall have such revisions to the drawings prepared, and Tenant shall reimburse Landlord for the cost thereof, plus any applicable state sales or use tax thereon, within ten (10) days following written demand to the extent that the cost	
 
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 	of performing such revisions cause the cost of Building E Tenant Improvements to exceed the Building E Maximum Amount. Promptly upon completion of the revisions, Landlord shall notify Tenant in writing of the increased cost, if any, which will be chargeable to Tenant by reason of such change, addition or deletion. Tenant, within one business day, shall notify Landlord in writing whether it desires to proceed with such change, addition or deletion. In the absence of such written authorization, Landlord shall have the option to continue work on the Premises disregarding the requested change, addition or alteration, or Landlord may elect to discontinue work on the Premises until it receives notice of Tenant’s decision, in which event Tenant shall be responsible for any Tenant Delay in completion of the Premises resulting therefrom. If such revisions result in a higher estimate of the cost of construction and/or higher actual construction costs which exceed the Building E Maximum Amount, such increased estimate or costs shall be deemed Excess Costs pursuant to Section 4 hereof and Tenant shall pay such Excess Costs, plus any applicable state sales or use tax thereon, upon demand.	
 
6.	Following approval of the Plans and the payment by Tenant of the required portion of the Excess Costs, if any, Landlord shall cause the Building E Tenant Improvements to be constructed substantially in accordance with the approved Plans. Landlord shall notify Tenant of substantial completion of the Building E Tenant Improvements.	
 
7.	Any portion of the Building E Maximum Amount which exceeds the cost of the Building E Tenant Improvements or is otherwise remaining after August 15, 2012, shall accrue to the sole benefit of Landlord, it being agreed that Tenant shall not be entitled to any credit, offset, abatement or payment with respect thereto.	
 
8.	Landlord and Tenant agree to cooperate with each other in order to enable the Building E Tenant Improvements to be performed in a timely manner and with as little inconvenience to the operation of Tenant’s business as is reasonably possible. Notwithstanding anything herein to the contrary, any delay in the completion of the Building E Tenant Improvements or inconvenience suffered by Tenant during the performance of the Building E Tenant Improvements shall not subject Landlord to any liability for any loss or damage resulting therefrom or entitle Tenant to any credit, abatement or adjustment of rent or other sums payable under the Lease.	
 
9.	Subject to the provisions contained herein, so long as Tenant is not in default under the Lease, Tenant shall be entitled to apply the Building E Maximum Amount (not to exceed $10.00 per rentable square foot of the Premises located in Building E) to the purchase of general office equipment, the purchase and installation of telephone and computer cabling in the Premises, the purchase and installation of furniture, cabling, voice/data infrastructure and systems (but expressly excluding any leased equipment or other leasing costs associated therewith) (collectively, the “FF&E”) to be located at all times at the Premises and for use by Tenant in the Premises. Tenant hereby acknowledges and agrees that the FF&E shall expressly exclude office supplies (including, without limitation, letterhead and business cards), facsimile machines, copy machines, and computer equipment. Landlord shall own all the FF&E until the expiration of the Lease (provided that Tenant, not Landlord, shall be responsible for all costs associated with such FF&E including, without limitation, the cost of insuring the same, all maintenance and repair	
 
D-1-3

 	costs and taxes), at which time the FF&E shall become the property of Tenant. Tenant shall maintain and repair the FF&E in good and working order and shall insure the FF&E to the same extent Tenant is required to insure Tenant’s Personal Property pursuant to the terms of the Lease. In the event that the Lease is terminated prior to the Termination Date, Tenant, at Landlord’s election, shall pay to Landlord the unamortized portion of the costs of the FF&E to the extent paid from the Building E Maximum Amount (no later than the Termination Date of the Lease), or the FF&E shall remain the property of Landlord and Tenant shall and, in such event, hereby does, waive all of its rights thereto.	
 
10.	Notwithstanding the foregoing, Landlord shall be responsible for defects in the Building E Tenant Improvements of which Tenant notifies Landlord to the extent that the correction of such defects is covered under valid and enforceable warranties given Landlord by contractors or subcontractors performing the Building E Tenant Improvements. Landlord shall pursue such claims directly.	
 
11.	This Exhibit D-1 shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease.	
 
D-1-4

EXHIBIT D-2
WORK LETTER
BUILDING F
This Exhibit is attached to and made a part of the Lease by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”) and WOODMAN LABS, INC. , a California corporation (“ Tenant ”) for space in the Buildings located at 3000E and 3000F Clearview Way, San Mateo, California.
 
1.	This Exhibit D-2 shall set forth the obligations of Landlord and Tenant with respect to the improvements to be performed in the Premises located in Building F for Tenant’s use. All improvements described in this Exhibit D-2 to be constructed in and upon the Premises located in Building F by Landlord are hereinafter referred to as the “Building F Tenant Improvements.” It is agreed that construction of the Building F Tenant Improvements will be completed at Landlord’s sole cost and expense (subject to the Building F Maximum Amount and further subject to the terms of Section 5 below), using Building standard methods, materials, and finishes. Notwithstanding the foregoing, Landlord and Tenant acknowledge that Plans (hereinafter defined) for the Building F Tenant Improvements have not yet been prepared and, therefore, it is impossible to determine the exact cost of the Building F Tenant Improvements at this time. Accordingly, Landlord and Tenant agree that Landlord’s obligation to pay for the cost of Building F Tenant Improvements (inclusive of the cost of preparing Plans, obtaining permits, a construction management fee equal to 5% of the total construction costs, and other related costs) shall be limited to $1,861,100.00 ($50.00 per rentable square foot of the Premises located in Building E) (the “Building F Maximum Amount”) and that Tenant shall be responsible for the cost of Building F Tenant Improvements, plus any applicable state sales or use tax, if any, to the extent that it exceeds the Building F Maximum Amount. Landlord shall enter into a direct contract for the Building F Tenant Improvements with a general contractor selected by Landlord. In addition, Landlord shall have the right to select and/or approve of any subcontractors used in connection with the Building F Tenant Improvements.	
 
2.	Tenant shall be solely responsible for the timely preparation and submission to Landlord of the final architectural, electrical and mechanical construction drawings, plans and specifications (called “Plans”) necessary to construct the Building F Tenant Improvements, which Plans shall be subject to approval by Landlord and Landlord’s architect and engineers and shall comply with their requirements to avoid aesthetic or other conflicts with the design and function of the balance of the Building. Tenant shall be responsible for all elements of the design of the Plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of the Plans shall in no event relieve Tenant of the responsibility for such design. If requested by Tenant, Landlord’s architect will prepare the Plans necessary for such construction at Tenant’s cost. Whether or not the layout and Plans are prepared with the help (in whole or in part) of Landlord’s architect, Tenant	
 
D-2-1

 	agrees to remain solely responsible for the timely preparation and submission of the Plans and for all elements of the design of such Plans and for all costs related thereto. Tenant has assured itself by direct communication with the architect and engineers (Landlord’s or its own, as the case may be) that the final approved Plans can be delivered to Landlord on or before May 31, 2012 (the “Plans Due Date”), provided that Tenant promptly furnishes complete information concerning its requirements to said architect and engineers as and when requested by them. Tenant covenants and agrees to cause said final, approved Plans to be delivered to Landlord on or before said Plans Due Date and to devote such time as may be necessary in consultation with said architect and engineers to enable them to complete and submit the Plans within the required time limit. Time is of the essence in respect of preparation and submission of Plans by Tenant. If the Plans are not fully completed and approved by the Plans Due Date, Tenant shall be responsible for one day of Tenant Delay (as defined in the Lease to which this Work Letter is attached) for each day during the period beginning on the day following the Plans Due Date and ending on the date completed Plans are approved. (The word “architect” as used in this Exhibit B shall include an interior designer or space planner.)	
 
3.	If Landlord’s estimate and/or the actual cost of the Building F Tenant Improvements shall exceed the Building F Maximum Amount, Landlord, prior to commencing any construction of Building F Tenant Improvements, shall submit to Tenant a written estimate setting forth the anticipated cost of the Building F Tenant Improvements, including but not limited to labor and materials, contractor’s fees and permit fees. Within three (3) business days thereafter, Tenant shall either notify Landlord in writing of its approval of the cost estimate, or specify its objections thereto and any desired changes to the proposed Building F Tenant Improvements. If Tenant notifies Landlord of such objections and desired changes, Tenant shall work with Landlord to reach a mutually acceptable alternative cost estimate.	
 
4.	If the estimated cost of construction shall exceed the Building F Maximum Amount (such amounts exceeding the Building F Maximum Amount being herein referred to as the “Excess Costs”), Tenant shall pay to Landlord such Excess Costs, plus any applicable state sales or use tax thereon, within thirty (30) days of Landlord’s demand (which demand shall be made no earlier than the date that Landlord enters into the construction contract with the general contractor); provided, however, that if the actual cost of construction is less than the estimated cost, Landlord shall refund such overage to Tenant within thirty (30) days following completion of the Building F Tenant Improvements. In addition, if during the construction process, there are additional costs of the Building F Tenant Improvements that were not included in the initial cost estimate, the parties shall comply with the process set forth in Section 3 above, and Tenant shall pay such additional Excess Costs to Landlord within thirty (30) days of Landlord’s demand. The amounts payable by Tenant hereunder constitute rent payable pursuant to the Lease, and the failure to timely pay same constitutes an event of default under the Lease.	
 
5.	If Tenant shall request any change, addition or alteration in any of the Plans after approval by Landlord, Landlord shall have such revisions to the drawings prepared, and Tenant shall reimburse Landlord for the cost thereof, plus any applicable state sales or use tax thereon, within ten (10) days following written demand to the extent that the cost	
 
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 	of performing such revisions cause the cost of Building F Tenant Improvements to exceed the Building F Maximum Amount. Promptly upon completion of the revisions, Landlord shall notify Tenant in writing of the increased cost, if any, which will be chargeable to Tenant by reason of such change, addition or deletion. Tenant, within one business day, shall notify Landlord in writing whether it desires to proceed with such change, addition or deletion. In the absence of such written authorization, Landlord shall have the option to continue work on the Premises disregarding the requested change, addition or alteration, or Landlord may elect to discontinue work on the Premises until it receives notice of Tenant’s decision, in which event Tenant shall be responsible for any Tenant Delay in completion of the Premises resulting therefrom. If such revisions result in a higher estimate of the cost of construction and/or higher actual construction costs which exceed the Building F Maximum Amount, such increased estimate or costs shall be deemed Excess Costs pursuant to Section 4 hereof and Tenant shall pay such Excess Costs, plus any applicable state sales or use tax thereon, upon demand.	
 
6.	Following approval of the Plans and the payment by Tenant of the required portion of the Excess Costs, if any, Landlord shall cause the Building F Tenant Improvements to be constructed substantially in accordance with the approved Plans. Landlord shall notify Tenant of substantial completion of the Building F Tenant Improvements.	
 
7.	Any portion of the Building F Maximum Amount which exceeds the cost of the Building F Tenant Improvements or is otherwise remaining after August 15, 2013, shall accrue to the sole benefit of Landlord, it being agreed that Tenant shall not be entitled to any credit, offset, abatement or payment with respect thereto.	
 
8.	Landlord and Tenant agree to cooperate with each other in order to enable the Building F Tenant Improvements to be performed in a timely manner and with as little inconvenience to the operation of Tenant’s business as is reasonably possible. Notwithstanding anything herein to the contrary, any delay in the completion of the Building F Tenant Improvements or inconvenience suffered by Tenant during the performance of the Building F Tenant Improvements shall not subject Landlord to any liability for any loss or damage resulting therefrom or entitle Tenant to any credit, abatement or adjustment of rent or other sums payable under the Lease.	
 
9.	Subject to the provisions contained herein, so long as Tenant is not in default under the Lease, Tenant shall be entitled to apply the Building F Maximum Amount (not to exceed $10.00 per rentable square foot of the Premises located in Building F) to the purchase of general office equipment, the purchase and installation of telephone and computer cabling in the Premises, the purchase and installation of furniture, cabling, voice/data infrastructure and systems (but expressly excluding any leased equipment or other leasing costs associated therewith) (collectively, the “FF&E”) to be located at all times at the Premises and for use by Tenant in the Premises. Tenant hereby acknowledges and agrees that the FF&E shall expressly exclude office supplies (including, without limitation, letterhead and business cards), facsimile machines, copy machines, and computer equipment. Landlord shall own all the FF&E until the expiration of the Lease (provided that Tenant, not Landlord, shall be responsible for all costs associated with such FF&E including, without limitation, the cost of insuring the same, all maintenance and repair	
 
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 	costs and taxes), at which time the FF&E shall become the property of Tenant. Tenant shall maintain and repair the FF&E in good and working order and shall insure the FF&E to the same extent Tenant is required to insure Tenant’s Personal Property pursuant to the terms of the Lease. In the event that the Lease is terminated prior to the Termination Date, Tenant, at Landlord’s election, shall pay to Landlord the unamortized portion of the costs of the FF&E (no later than the Termination Date of the Lease), or the FF&E shall remain the property of Landlord and Tenant shall and, in such event, hereby does, waive all of its rights thereto.	
 
10.	Notwithstanding the foregoing, Landlord shall be responsible for defects in the Building F Tenant Improvements of which Tenant notifies Landlord to the extent that the correction of such defects is covered under valid and enforceable warranties given Landlord by contractors or subcontractors performing the Building F Tenant Improvements. Landlord shall pursue such claims directly.	
 
11.	This Exhibit D-2 shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease.	
 
D-2-4

EXHIBIT D-3
WARM SHELL SPECIFICATIONS
This Exhibit is attached to and made a part of the Lease by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”) and WOODMAN LABS, INC. , a California corporation (“ Tenant ”) for space in the Buildings located at 3000E and 3000F Clearview Way, San Mateo, California.
Landlord, at Landlord’s sole cost and expense, shall deliver the Buildings consistent with the following warm shell specifications. All work to be completed in excess of the below specifications will be deemed Tenant Improvements. If there are defects in any of the following work as of the date possession of the applicable portion of the Premises is delivered to Tenant and Tenant provides Landlord with notice of the same within ninety (90) days following the date Landlord delivers possession of the Premises to Tenant, Landlord shall be responsible for repairing or restoring the same. Notwithstanding the foregoing, Landlord shall be responsible for defects in the warn shell specifications of which Tenant notifies Landlord to the extent that the correction of such defects is covered under valid and enforceable warranties given Landlord by contractors or subcontractors performing the warn shell specifications. Landlord shall pursue such claims directly.
 
 	A)	Water-tight shell.	
 
 	B)	Ground floor lobby with finishes consistent with Landlord’s specifications.	
 
 	C)	Complete, operational elevator system and finished elevator cabs per Landlord’s specifications.	
 
 	D)	Base building exit stairs, including painted walls, hand rails, and appropriate lighting and signage as required by applicable code, in effect and as enforced as of the date of performance of the work.	
 
 	E)	Base building mechanical system distributed via stub-outs to each Floor: The air conditioning system consists of cooling towers, chillers, and pumps and a penthouse mounted built-up or package system. The heating system will be supported with a penthouse mounted hot water boiler with vertical hot water loop valved to each floor. The mechanical systems will be controlled via a web based, Direct Digital Controls (DDC) system.	
 
 	F)	Base building telephone room at the ground floor main point of entry (MPOE) with riser capacity to connect to telephone closets on each floor.	
 
 	G)	Base building restrooms, including fixture counts required by applicable code, in effect and as enforced as of the date of performance of the work, (for typical office layout and occupancy), and finishes consistent with Landlord’s specifications.	
 
D-3-1

 	H)	Base building electrical power system (4801277V) with standard vertical power distribution to floor distribution panels in electrical closets on each floor.	
 
 	I)	Base building fire sprinklers required by applicable code, in effect and as enforced as of the date of performance of the work.	
 
 	J)	Base building fire/life-safety system, including all devices required by by applicable code, in effect and as enforced as of the date of performance of the work, for the base building shell.	
 
 	K)	Surface parking and required signage, as determined by Landlord.	
 
 	L)	Site landscaping and lighting, as determined by Landlord.	
 
D-3-2

EXHIBIT E
EXPENSES AND TAXES
This Exhibit is attached to and made a part of the Lease by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”) and WOODMAN LABS, INC., a California corporation (“ Tenant ”) for space in the Buildings located at 3000E and 3000F Clearview Way, San Mateo, California
A. Landlord shall provide Tenant with a good faith estimate of the total amount of Expenses and Taxes for each calendar year during the Term. On or before the first day of each month, Tenant shall pay to Landlord a monthly installment equal to one-twelfth of Tenant’s Share of Landlord’s estimate of the total amount of Expenses and Taxes, which initial monthly sum is defined in Section I.D. above as the “Tenant’s Monthly Expense and Tax Payment”. If Landlord determines that its good faith estimate was incorrect by a material amount, Landlord may provide Tenant with a revised estimate. After its receipt of the revised estimate, Tenant’s Monthly Expense and Tax Payment shall be based upon the revised estimate. If Landlord does not provide Tenant with an estimate of the total amount of Expenses and Taxes by January 1 of a calendar year, Tenant shall continue to pay monthly installments based on the previous year’s estimate until Landlord provides Tenant with the new estimate. Upon delivery of the new estimate, an adjustment shall be made for any month for which Tenant paid monthly installments based on the previous year’s estimate. Tenant shall pay Landlord the amount of any underpayment within 30 days after receipt of the new estimate. Any overpayment shall be refunded to Tenant within 30 days or credited against the next due future installment(s) of Additional Rent.
As soon as is practical following the end of each calendar year, Landlord shall furnish Tenant with a statement of the actual amount of Expenses and Taxes for the prior calendar year and Tenant’s Share of the actual amount of Expenses and Taxes for the prior calendar year. If the estimated amount of Expenses and Taxes for the prior calendar year is more than the actual amount of Expenses and Taxes for the prior calendar year, Landlord shall apply any overpayment by Tenant against Additional Rent due or next becoming due, provided if the Term expires before the determination of the overpayment, Landlord shall refund any overpayment to Tenant after first deducting the amount of Rent due. If the estimated amount of Expenses and Taxes for the prior calendar year is less than the actual amount of Expenses and Taxes for such prior year, Tenant shall pay Landlord, within 30 days after its receipt of the statement of Expenses and Taxes, any underpayment for the prior calendar year.
B. Expenses Defined . “Expenses” means the sum of (i) all direct and indirect costs and expenses incurred in each calendar year in connection with operating, maintaining, repairing, and managing the Buildings and the Property (including any costs and expenses in connection with operating, maintaining, repairing and managing the Exterior Common Areas located on the Property to the extent such costs and expenses are not deemed to be costs and expenses of the Project as a whole), and (ii) the Buildings’, the Property’s and the Landlord’s allocable portion of (a) all direct and indirect costs of operating, maintaining, repairing and managing the Project (including any costs and expenses in connection with operating, maintaining, repairing and managing the Exterior Common Areas located on the Project to the extent such costs and
 
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expenses are not specifically allocated to and payable by individual buildings within the Project), (b) all costs, fees or other amounts payable to any association established for the benefit of the Project and/or other properties, if any (but only to the extent of the Project’s pro rata share of such costs), and (c) all fees payable to the company or association, if applicable, managing the parking areas within the Project, including, but not limited to:
1. Labor costs, including, wages, salaries, social security and employment taxes, medical and other types of insurance, uniforms, training, and retirement and pension plans.
2. Management fees, the cost of equipping and maintaining a management office, accounting and bookkeeping services, legal fees not attributable to leasing or collection activity, and other administrative costs. Landlord, by itself or through an affiliate, shall have the right to directly perform or provide any services under this Lease (including management services), provided that the cost of any such services shall not exceed the cost that would have been incurred had Landlord entered into an arms- length contract for such services with an unaffiliated entity of comparable skill and experience.
3. The cost of services, including amounts paid to service providers and the rental and purchase cost of parts, supplies, tools and equipment.
4. Premiums and deductibles paid by Landlord for insurance, including workers compensation, fire and extended coverage, earthquake, general liability, rental loss, elevator, boiler and other insurance customarily carried from time to time by owners of comparable office buildings; provided, however, that if Tenant’s Share of any deductible is in excess of $100,000.00 (such excess amount referred to herein as the “Excess Deductible Share”), such Excess Deductible Share shall be amortized in the same manner as capital improvements (as described in item #6 below).
5. Electrical Costs (defined below) and charges for water, gas, steam and sewer, but excluding those charges for which Landlord is reimbursed by tenants. “Electrical Costs” means: (a) charges paid by Landlord for electricity; (b) costs incurred in connection with an energy management program for the Building, the Property or the Project; and (c) if and to the extent permitted by Law, a fee for the services provided by Landlord in connection with the selection of utility companies and the negotiation and administration of contracts for electricity, provided that such fee shall not exceed 50% of any savings obtained by Landlord. Electrical Costs shall be adjusted as follows: (i) amounts received by Landlord as reimbursement for above standard electrical consumption shall be deducted from Electrical Costs; (ii) the cost of electricity incurred to provide overtime HVAC to specific tenants (as reasonably estimated by Landlord) shall be deducted from Electrical Costs; and (iii) if Tenant is billed directly for the cost of building standard electricity to the Premises as a separate charge in addition to Base Rent, the cost of electricity to individual tenant spaces in the Building shall be deducted from Electrical Costs.
6. The amortized cost of capital improvements (as distinguished from replacement parts or components installed in the ordinary course of business) made to the Building, Property or Project which are: (a) performed primarily to reduce operating expense costs or otherwise improve the operating efficiency of the Building, Property or Project; or (b) required to comply
 
E-2

with any Laws that are enacted, or first interpreted to apply to the Building, Property or Project, after the date of this Lease. The cost of capital improvements shall be amortized by Landlord over 7 years. The amortized cost of capital improvements may, at Landlord’s option, include actual or imputed interest at the rate that Landlord would reasonably be required to pay to finance the cost of the capital improvement
7. Any fees, costs and expenses relating to operating, managing, repairing and maintaining the parking facilities servicing the Building, Property, or Project, and any fitness center(s), conference center(s), concierge services, or other amenities (if any) in the Project.
If Landlord incurs Expenses for any Building, the Property or the Project together with one or more other buildings or properties, whether pursuant to a reciprocal easement agreement, common area agreement or otherwise, the shared costs and expenses shall be equitably prorated and apportioned among the Building, the Property and the Project and the other buildings or properties. Expenses shall not include: the cost of capital improvements (except as set forth above); depreciation; interest (except as provided above for the amortization of capital improvements); principal payments of mortgage and other non-operating debts of Landlord; the cost of repairs or other work to the extent Landlord is reimbursed by insurance or condemnation proceeds; costs in connection with leasing space in the Building, including brokerage commissions; lease concessions, including rental abatements and construction allowances, granted to specific tenants; costs incurred in connection with the sale, financing or refinancing of the Building; fines, interest and penalties incurred due to the late payment of Taxes (defined in Section 4.D) or Expenses; organizational expenses associated with the creation and operation of the entity which constitutes Landlord; the cost of investigation or remediation (including removal) of hazardous materials (except to the extent of any removal, cleaning, abatement or remediation that is related to the general repair and maintenance of the Building) unless present due to the acts of Tenant or Tenant’s contractors or representatives; or any penalties or damages that Landlord pays to Tenant under this Lease or to other tenants in the Project under their respective leases. If the Building is not at least 95% occupied during any calendar year or if Landlord is not supplying services to at least 95% of the total rentable square footage of the Building at any time during a calendar year, Expenses shall, at Landlord’s option, be determined as if the Building had been 95% occupied and Landlord had been supplying services to 95% of the rentable square footage of the Building during that calendar year. The extrapolation of Expenses under this Section shall be performed by appropriately adjusting the cost of those components of Expenses that are impacted by changes in the occupancy of the Building.
C. Taxes Defined . “Taxes” shall mean: (1) all real estate taxes and other assessments on the Building and/or Property, and the Building’s and Property’s share of such taxes relating to the Project, including, but not limited to, assessments for special improvement districts and building improvement districts, taxes and assessments levied in substitution or supplementation in whole or in part of any such taxes and assessments and the Building’s and Property’s share of any real estate taxes and assessments under any reciprocal easement agreement, common area agreement or similar agreement as to the Building, Property and/or Project; (2) all personal property taxes for property that is owned by Landlord to the extent used in connection with the operation, maintenance and repair of the Building, Property or the Project; and (3) all costs and fees incurred in connection with seeking reductions in any tax liabilities described in (1) and (2), including, without limitation, any costs incurred by Landlord for compliance, review and appeal
 
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of tax liabilities. Without limitation, Taxes shall not include any income, capital levy, franchise, capital stock, gift, estate or inheritance tax. If an assessment may be paid in installments, Taxes for the year shall include the amount of the installment and any interest due and payable if Landlord elects to pay in installments or the amount Landlord would have paid if it elected to pay it in installments during that year. For all other real estate taxes, Taxes for that year shall, at Landlord’s election, include either the amount accrued, assessed or otherwise imposed for the year or the amount due and payable for that year, provided that Landlord’s election shall be applied consistently throughout the Term. If a change in Taxes is obtained for any year of the Term, then Taxes for that year will be retroactively adjusted and Landlord shall provide Tenant with a credit, if any, based on the adjustment.
D. Audit Rights . Tenant may, within 90 days after receiving Landlord’s statement of Expenses, give Landlord written notice (“Review Notice”) that Tenant intends to review Landlord’s records of the Expenses for that calendar year. Within a reasonable time after receipt of the Review Notice, Landlord shall make all pertinent records available for inspection that are reasonably necessary for Tenant to conduct its review. If any records are maintained at a location other than the office of the Building, Tenant may either inspect the records at such other location or pay for the reasonable cost of copying and shipping the records. If Tenant retains an agent to review Landlord’s records, the agent must be with a licensed CPA firm. Tenant shall be solely responsible for all costs, expenses and fees incurred for the audit. However, notwithstanding the foregoing, if Landlord and Tenant determine that Expenses for the Building for the year in question were less than stated by more than 5%, Landlord, within thirty (30) days after its receipt of paid invoices therefor from Tenant, and in addition to reimbursing Tenant for any overpayment, shall reimburse Tenant for the reasonable amounts paid by Tenant to third parties in connection with such review by Tenant (not to exceed $5,000.00). Within 60 days after the records arc made available to Tenant, Tenant shall have the right to give Landlord written notice (an “Objection Notice”) stating in reasonable detail any objection to Landlord’s statement of Expenses for that year. If Tenant fails to give Landlord an Objection Notice within the 60 day period or fails to provide Landlord with a Review Notice within the 90 day period described above, Tenant shall be deemed to have approved Landlord’s statement of Expenses and shall be barred from raising any claims regarding the Expenses for that year. If Tenant provides Landlord with a timely Objection Notice, Landlord and Tenant shall work together in good faith to resolve any issues raised in Tenant’s Objection Notice. If Landlord and Tenant determine that Expenses for the calendar year are less than reported, Landlord shall provide Tenant with a credit against the next installment of Rent in the amount of the overpayment by Tenant. Likewise, if Landlord and Tenant determine that Expenses for the calendar year are greater than reported, Tenant shall pay Landlord the amount of any underpayment within 30 days. The records obtained by Tenant shall be treated as confidential. In no event shall Tenant be permitted to examine Landlord’s records or to dispute any statement of Expenses unless Tenant has paid and continues to pay all Rent when due.
 
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EXHIBIT F
PARKING AGREEMENT
This Exhibit (the “Parking Agreement”) is attached to and made a part of the Lease by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”) and WOODMAN LABS, INC. , a California corporation (“ Tenant ”) for space in the Buildings located at 3000E and 3000F Clearview Way, San Mateo, California.
 
1.	The capitalized terms used in this Parking Agreement shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Parking Agreement. In the event of any conflict between the Lease and this Parking Agreement, the latter shall control.	
 
2.	Landlord hereby grants to Tenant and persons designated by Tenant a license to use non-reserved parking spaces at a ratio of 3 spaces per 1,000 square feet (totaling 248 non-reserved parking spaces once all Commencement Dates have occurred) and 0 reserved parking spaces in the parking facility servicing the Building (“Parking Facility”). The term of such license shall commence on the Commencement Date under the Lease and shall continue until the earlier to occur of the Termination Date under the Lease, the sooner termination of the Lease, or Tenant’s abandonment of the Premises thereunder. During the term of this license, Tenant shall pay Landlord the prevailing monthly charges established from time to time for parking in the Parking Facility, payable in advance, with Tenant’s payment of monthly Base Rent. The initial charge for such parking spaces is $0.00 per non-reserved parking pass, per month, and $N/A per reserved parking pass, per month. No deductions from the monthly charge shall be made for days on which the Parking Facility is not used by Tenant. Tenant may, from time to time request additional parking spaces, and if Landlord shall provide the same, such parking spaces shall be provided and used on a month-to-month basis, and otherwise on the foregoing terms and provisions, and at such prevailing monthly parking charges as shall be established from time to time.	
 
3.	Tenant shall at all times comply with all applicable ordinances, rules, regulations, codes, laws, statutes and requirements of all federal, state, county and municipal governmental bodies or their subdivisions respecting the use of the Parking Facility. Landlord reserves the right to adopt, modify and enforce reasonable rules (“Rules”) governing the use of the Parking Facility from time to time including any key-card, sticker or other identification or entrance system and hours of operation. The Rules set forth herein are currently in effect. Landlord may refuse to permit any person who violates such Rules to park in the Parking Facility, and any violation of the Rules shall subject the car to removal from the Parking Facility.	
 
4.	Unless specified to the contrary above, the parking spaces hereunder shall be provided on a non-designated “first-come, first-served” basis. Tenant acknowledges that Landlord has no liability for claims arising through acts or omissions of any independent operator of the Parking Facility. Landlord shall have no liability whatsoever for any damage to items located in the Parking Facility, nor for any personal injuries or death arising out of	
 
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 	any matter relating to the Parking Facility, and in all events, Tenant agrees to look first to its insurance carrier and to require that Tenant’s employees look first to their respective insurance carriers for payment of any losses sustained in connection with any use of the Parking Facility. Tenant hereby waives on behalf of its insurance carriers all rights of subrogation against Landlord or Landlord’s agents. Landlord reserves the right to assign specific parking spaces, and to reserve parking spaces for visitors, small cars, handicapped persons and for other tenants, guests of tenants or other parties, which assignment and reservation or spaces may be relocated as determined by Landlord from time to time, and Tenant and persons designated by Tenant hereunder shall not park in any location designated for such assigned or reserved parking spaces. Tenant acknowledges that the Parking Facility may be closed entirely or in part in order to make repairs or perform maintenance services, or to alter, modify, re-stripe or renovate the Parking Facility, or if required by casualty, strike, condemnation, act of God, governmental law or requirement or other reason beyond the operator’s reasonable control. In such event, Landlord shall refund any prepaid parking fee hereunder, prorated on a per diem basis.	
 
5.	If Tenant shall default under this Parking Agreement, the operator shall have the right to remove from the Parking Facility any vehicles hereunder which shall have been involved or shall have been owned or driven by parties involved in causing such default, without liability therefor whatsoever. In addition, if Tenant shall default under this Parking Agreement, Landlord shall have the right to cancel this Parking Agreement on 10 days’ written notice, unless within such 10 day period, Tenant cures such default. If Tenant defaults with respect to the same term or condition under this Parking Agreement more than 3 times during any 12 month period, and Landlord notifies Tenant thereof promptly after each such default, the next default of such term or condition during the succeeding 12 month period, shall, at Landlord’s election, constitute an incurable default. Such cancellation right shall be cumulative and in addition to any other rights or remedies available to Landlord at law or equity, or provided under the Lease (all of which rights and remedies under the Lease are hereby incorporated herein, as though fully set forth). Any default by Tenant under the Lease shall be a default under this Parking Agreement, and any default under this Parking Agreement shall be a default under the Lease.	
RULES
 
 	(i)	Landlord reserves the right to establish and change Parking Facility hours from time to time, although, as of the date of this Lease, Tenant shall have access to the Parking Facility on a 24-hour basis, 7 days a week, subject to the other terms of this Parking Agreement. Tenant shall not store or permit its employees to store any automobiles in the Parking Facility without the prior written consent of the operator. Except for emergency repairs, Tenant and its employees shall not perform any work on any automobiles while located in the Parking Facility, or on the Property. If it is necessary for Tenant or its employees to leave an automobile in the Parking Facility overnight, Tenant shall provide the operator with prior notice thereof designating the license plate number and model of such automobile.	
 
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 	(ii)	Cars must be parked entirely within the stall lines painted on the floor, and only small cars may be parked in areas reserved for small cars.	
 
 	(iii)	All directional signs and arrows must be observed.	
 
 	(iv)	The speed limit shall be 5 miles per hour.	
 
 	(v)	Parking spaces reserved for handicapped persons must be used only by vehicles properly designated.	
 
 	(vi)	Parking is prohibited in all areas not expressly designated for parking, including without limitation:	
 
 	(a)	Areas not striped for parking	
 	(b)	aisles	
 	(c)	where “no parking” signs are posted	
 	(d)	ramps	
 	(e)	loading zones	
 
 	(vii)	Parking stickers, key cards or any other devices or forms of identification or entry supplied by the operator shall remain the property of the operator. Such device must be displayed as requested and may not be mutilated in any manner. The serial number of the parking identification device may not be obliterated. Parking passes and devices are not transferable and any pass or device in the possession of an unauthorized holder will be void.	
 
 	(viii)	Monthly fees shall be payable in advance prior to the first day of each month. Failure to do so will automatically cancel parking privileges and a charge at the prevailing daily parking rate will be due. No deductions or allowances from the monthly rate will be made for days on which the Parking Facility is not used by Tenant or its designees.	
 
 	(ix)	Parking Facility managers or attendants are not authorized to make or allow any exceptions to these Rules.	
 
 	(x)	Every parker is required to park and lock his/her own car.	
 
 	(xi)	Loss or theft of parking pass, identification, key cards or other such devices must be reported to Landlord and to the Parking Facility manager immediately. Any parking devices reported lost or stolen found on any authorized car will be confiscated and the illegal holder will be subject to prosecution. Lost or stolen passes and devices found by Tenant or its employees must be reported to the office of the Parking Facility immediately.	
 
 	(xii)	Washing, waxing, cleaning or servicing of any vehicle by the customer and/or his agents is prohibited. Parking spaces may be used only for parking automobiles.	
 
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 	(xiii)	Tenant agrees to acquaint all persons to whom Tenant assigns a parking space with these Rules.	
 
6.	TENANT ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO TENANT OR TENANT’S PROPERTY (INCLUDING, WITHOUT LIMITATIONS, ANY LOSS OR DAMAGE TO TENANT’S AUTOMOBILE OR THE CONTENTS THEREOF DUE TO THEFT, VANDALISM OR ACCIDENT) ARISING FROM OR RELATED TO TENANTS USE OF THE PARKING FACILITY OR EXERCISE OF ANY RIGHTS UNDER THIS PARKING AGREEMENT, WHETHER OR NOT SUCH LOSS OR DAMAGE RESULTS FROM LANDLORD’S ACTIVE NEGLIGENCE OR NEGLIGENT OMISSION. THE LIMITATION ON LANDLORD’S LIABILITY UNDER THE PRECEDING SENTENCE SHALL NOT APPLY HOWEVER TO LOSS OR DAMAGE ARISING DIRECTLY FROM LANDLORD’S WILLFUL MISCONDUCT.	
 
7.	Without limiting the provisions of Paragraph 6 above, Tenant hereby voluntarily releases, discharges, waives and relinquishes any and all actions or causes of action for personal injury or property damage occurring to Tenant arising as a result of parking in the Parking Facility, or any activities incidental thereto, wherever or however the same may occur, and further agrees that Tenant will not prosecute any claim for personal injury or property damage against Landlord or any of its officers, agents, servants or employees for any said causes of action. It is the intention of Tenant by this instrument, to exempt and relieve Landlord from liability for personal injury or property damage caused by negligence.	
 
8.	The provisions of Article XXI of the Lease are hereby incorporated by reference as if fully recited.	
Tenant acknowledges that Tenant has read the provisions of this Parking Agreement, has been fully and completely advised of the potential dangers incidental to parking in the Parking Facility and is fully aware of the legal consequences of agreeing to this instrument.
 
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EXHIBIT G
FORM OF LETTER OF CREDIT
This Exhibit is attached to and made a part of the Lease by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”) and WOODMAN LABS, INC. , a California corporation (“ Tenant ”) for space in the Buildings located at 3000E and 3000F Clearview Way, San Mateo, California.
FORM OF LETTER OF CREDIT

 	 	 	 	 	
[Name of Financial Institution]

Irrevocable Standby	
Letter of Credit	
No.	 	 	
			
Issuance Date:	 	 	
			
Expiration Date:	 	 	
			
Applicant:	 	 	
Beneficiary

[ Insert Name of Landlord ]	
[ Insert Building management office address ]	

 	
With copies of all notices to Beneficiary
Also delivered to:
[TO BE PROVIDED]
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor for the account of the above referenced Applicant in the amount of                     U.S. Dollars ($            ) available for payment at sight by your draft drawn on us when accompanied by the following documents:
 
1.	An original copy of this Irrevocable Standby Letter of Credit.	
 
2.	Beneficiary’s dated statement purportedly signed by an authorized signature or agent reading: “This draw in the amount of             U.S. Dollars ($            ) under your Irrevocable Standby Letter of Credit No.             represents funds due and owing to us pursuant to the terms of that certain lease by and between             , as landlord, and             , as tenant, and/or any amendment to the lease or any other agreement between such parties related to the lease.”	
 
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It is a condition of this Irrevocable Standby Letter of Credit that it will be considered automatically renewed for a one year period upon the expiration date set forth above and upon each anniversary of such date, unless at least 90 days prior to such expiration date or applicable anniversary thereof, we notify you in writing, by certified mail return receipt requested or by recognized overnight courier service, that we elect not to so renew this Irrevocable Standby Letter of Credit. In addition to the foregoing, we understand and agree that you shall be entitled to draw upon this Irrevocable Standby Letter of Credit by complying with items 1 and 2 above in the event that we elect not to renew this Irrevocable Standby Letter of Credit and, in addition, you provide us with a dated statement purportedly signed by an authorized signatory or agent of Beneficiary stating that the Applicant has failed to provide you with an acceptable substitute irrevocable standby letter of credit in accordance with the terms of the above referenced lease. We further acknowledge and agree that: (a) upon receipt of the documentation required herein, we will honor your draws against this Irrevocable Standby Letter of Credit without inquiry into the accuracy of Beneficiary’s signed statement and regardless of whether Applicant disputes the content of such statement and without signatory confirmation by your current lender or banker; (b) this Irrevocable Standby Letter of Credit shall permit partial draws and, in the event you elect to draw upon less than the full stated amount hereof; the stated amount of this Irrevocable Standby Letter of Credit shall be automatically reduced by the amount of such partial draw; and (c) you shall be entitled to transfer your interest in this Irrevocable Standby Letter of Credit from time to time and more than one time without our approval and without charge by competing and delivering to us our Form of Transfer attached hereto as Exhibit A. In the event of a transfer, we reserve the right to require reasonable evidence of such transfer as a condition to any draw hereunder. Any fees or charges that arise or accrue hereunder are for the account of Applicant and shall in no event be a condition to our honoring of your draw request.
Payment against presentations hereunder prior to 10:00 a.m. California time, on a business day shall be made by bank during normal business hours of the bank’s office on the next succeeding business day. Payment against presentations hereunder after 10:00 a.m. California time, on a business day shall be made by bank during normal business hours of the bank’s office on the second succeeding business day. For purposes hereof, business days shall mean calendar days other than weekends and legally recognized bank holidays.
All drafts must be marked “drawn under                     Standby Letter of Credit number             .”
This Irrevocable Standby Letter of Credit is subject to the terms and conditions of the International Standby Practices (ISP 98).
We hereby engage with you to honor drafts and documents drawn under and in compliance with the terms of this Irrevocable Standby Letter of Credit.
 
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This Irrevocable Standby Letter of Credit sets forth in full the terms of our undertaking which shall not in any way be modified, amended, amplified, or limited by reference to any document, instrument, or agreement, whether or not referred to herein.
All communications to us with respect to this Irrevocable Standby Letter of Credit must be addressed to our office located at                      to the attention of                     .

Very truly yours,	

[name]	
[title]	
 
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EXHIBIT A TO LETTER OF CREDIT NO.     
FORM OF TRANSFER
[Name and Address of Issuing Bank]
Ladies and Gentlemen:
We refer to your enclosed Irrevocable Letter of Credit No.          (the “Letter of Credit”) in the available amount of US $            .
We hereby assign all of our right, title and interest as beneficiary under the Letter of Credit to              (“Transferee”), whose address is             .
Upon your acknowledgment of this transfer of the Letter of Credit and receipt by us of your acknowledgment and the acknowledgment by the Transferee of this transfer notice, the Letter of Credit shall be deemed to have been transferred to the Transferee.
( Name of Beneficiary )

By:	 	 	
Its:	 	Authorized Representative	
Date:	 	 	
	
Agreed and Accepted:	
	
(Name of Issuer)	
		
By:	 	 	
Its:	 	Authorized Representative	
Date:	 	 	
	
Acknowledged:	
	
(Name of Transferee)	
		
By:	 	 	
Its:	 	Authorized Representative	
Date:	 	 	
 
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FIRST AMENDMENT TO OFFICE LEASE AGREEMENT
THIS FIRST AMENDMENT TO OFFICE LEASE AGREEMENT (the “ Amendment ”) is made and entered into as of August 29, 2012, by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”), and WOODMAN LABS, INC. , a California corporation (“ Tenant ”).
RECITALS
A. Landlord and Tenant are parties to that certain Office Lease Agreement, dated November 1, 2011 (the “ Lease ”). Pursuant to the Lease, Landlord has leased to Tenant space currently containing 45,435 rentable square feet comprising the entire building located at 3000E Clearview Way, San Mateo, California (“ Building E ”) and 37,222 rentable square feet comprising the entire building located at 3000F Clearview Way, San Mateo, California (“ Building F ”) (collectively, the “ Original Premises ”).
B. Tenant has requested that additional space containing approximately 9,483 rentable square feet comprised of (i) 1,696 rentable square feet known as the marketing suite (the “ Marketing Suite ”) on the first floor of the building commonly known as Building A located at 3155 Clearview Way, San Mateo, California (“ Building A ”) and (ii) 7,787 rentable square feet known as the shell space (the “ Shell Space ”) on the first floor of Building A, each as shown on Exhibit A hereto (collectively, the “Temporary Space”) be added to the Original Premises on a temporary basis and that the Lease be appropriately amended and Landlord is willing to do the same on the following terms and conditions.
C. Landlord and Tenant are currently negotiating the terms of a letter of intent for Tenant’s lease from Landlord approximately 16,674 rentable square feet located on the second floor of Building A (the “ Expansion Space ”).
NOW, THEREFORE , in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
1. Temporary Expansion and Effective Date .
1.1 For the period commencing on September 1, 2012 (the “ Temporary Space Effective Date ”) and ending on the Temporary Space Termination Date (as defined below), the Premises, as defined in the Lease, is temporarily increased from 85,657 rentable square feet located in Building E and Building F by the addition of the Temporary Space, and during the Temporary Space Term (as defined below), the Original Premises and the Temporary Space, collectively, shall be deemed the Premises, as defined in the Lease and as used herein, and the “Building”, as defined in the Lease, shall be deemed to mean, collectively, Building E, Building F and Building A.
1.2 The Term for the Temporary Space (the “ Temporary Space Term ”) shall commence on the Temporary Space Effective Date and end on September 30, 2012, unless sooner terminated pursuant to the terms of the Lease (the “ Temporary Space Termination

Date ”), provided that the Temporary Space Term shall automatically renew for consecutive periods of one (1) month each until terminated by either party with at least thirty (30) days’ advance written notice of termination delivered to the other party. The Temporary Space is subject to all the terms and conditions of the Lease except as expressly modified herein and except that Tenant shall not be entitled to receive any allowances, abatement, building signage or financial concession granted with respect to the Original Premises unless such concessions are expressly provided for herein with respect to the Temporary Space.
2. Base Rent . In addition to Tenant’s obligation to pay Base Rent for the Original Premises, during the Temporary Space Term, Tenant shall pay Landlord the sum of $11,603.00 per month as Base Rent for the Temporary Space, plus applicable state sales and use taxes, with each such installment payable on or before the first day of each month during the period beginning on the Temporary Space Effective Date and ending on the Temporary Space Termination Date, prorated for any partial month within the Temporary Space Term. All such Base Rent, plus applicable state sales and use taxes, shall be payable by Tenant in accordance with the terms of the Lease. Notwithstanding anything to the contrary in this Section 2, Tenant shall be entitled to an abatement of Base Rent with respect to the Premises in the monthly amount of $11,603.00 per month for the Temporary Space Term (collectively, the “Abated Base Rent”). However, if Landlord desires to lease the Expansion Space to Tenant and Landlord and Tenant have not entered into a lease amendment for the Expansion Space on or before August 31, 2012, then all Abated Base Rent shall immediately become due and payable, and notwithstanding anything in Section 1 above to the contrary, the Temporary Space Termination Date shall be September 30, 2012. If Landlord elects not to lease the Expansion Space to Tenant, Tenant may continue to lease the Temporary Space on a month to month basis, but shall no longer be entitled to the Abated Base Rent, and Tenant shall pay Base Rent for the Temporary Space, effective immediately upon Landlord’s notice to Tenant. Only Base Rent shall be abated pursuant to this Section, as more particularly described herein, and Tenant’s Share of Expenses and Taxes and all other rent and other costs and charges specified in the Lease, as amended hereby, shall remain as due and payable pursuant to the provisions of the Lease, as amended hereby.
3. Additional Security Deposit . No additional Security Deposit shall be required in connection with this Amendment.
4. Tenant’s Share . For the period commencing with the Temporary Space Effective Date and ending on the Temporary Space Termination Date, Tenant shall pay Tenant’s Share of Expenses and Taxes for the Temporary Space in the same manner that Tenant pays Tenant’s Share of Expenses and Taxes for the Original Premises as provided in Article 4 and Exhibit E of the Lease. During such period, Tenant’s Share of the Building for the Temporary Space is 19.11% and Tenant’s Share of the Project for the Temporary Space is 3.55%.
5. Improvements to Temporary Space .
5.1 Condition of Temporary Space . Tenant has inspected the Temporary Space and agrees to accept the same “as-is” without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements. Tenant shall vacate the Temporary Space on or prior to the Temporary Space Termination Date and deliver up the Temporary Space to Landlord in as good condition as the Temporary Space was delivered to Tenant, ordinary wear and tear excepted.
 
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5.2 Responsibility for Improvements to Temporary Space . Tenant may perform improvements to the Temporary Space in accordance with the terms of Exhibit B attached hereto. Notwithstanding anything in the Lease to the contrary, Landlord hereby reserves its right to require Tenant to remove the Temporary Space Alterations at the expiration or earlier termination of the Temporary Space Term and repair damage resulting therefrom.
6. Early Access to Temporary Space . During any period that Tenant shall be permitted to enter the Temporary Space prior to the Temporary Space Effective Date (e.g., to perform alterations or improvements, if any), Tenant shall comply with all terms and provisions of the Lease, except those provisions requiring payment of Monthly Installment of Rent or Tenant’s Proportionate Share of Expenses and Taxes as to the Temporary Space. If Tenant takes possession of the Temporary Space prior to the Temporary Space Effective Date for any reason whatsoever (other than the performance of work in the Temporary Space with Landlord’s prior approval), such possession shall be subject to all the terms and conditions of the Lease and this Amendment, and Tenant shall pay Monthly Installment of Rent and Tenant’s Proportionate Share of Expenses and Taxes as applicable to the Temporary Space to Landlord on a per diem basis for each day of occupancy prior to the Temporary Space Effective Date.
7. No Extension or Expansion Options . The parties hereto acknowledge and agree that any option or other rights contained in the Lease which entitle Tenant to extend the term of the Lease or expand the Premises shall apply only to the Original Premises and shall not be applicable to the Temporary Space in any manner.
8. Holdover . If Tenant should holdover in the Temporary Space after expiration or earlier termination of the Temporary Space Term, any remedies available to Landlord as a consequence of such holdover contained in Article 25 of the Lease or otherwise shall be applicable, but only with respect to the Temporary Space and shall not be deemed applicable to the Original Premises unless and until Tenant holds over in the Original Premises after expiration or earlier termination of the Term.
9. Services .
9.1 Notwithstanding anything in Sections 7.A. and B. of the Lease to the contrary, Landlord shall furnish the following services to the Temporary Space (and Tenant shall not have the right to separately contract for such services with the applicable utility): (i) water service for use in the lavatories on the floor on which the Temporary Space is located, (ii) janitorial service on Business Days, and (iii) electricity to the Temporary Space for general office use, in accordance with and subject to the terms and conditions of Article 10 of the Lease (as amended by Section 9.2 below with respect to the Temporary Space only). In addition, notwithstanding anything in Section 7.A. of the Lease to the contrary, upon advance notice as is reasonably required by Landlord, Tenant may elect to receive HVAC service during hours other than Normal Business Hours, and Tenant shall pay Landlord the standard charge for such additional service as reasonably determined by Landlord from time to time. Such charge shall be payable as Additional Rent upon ten (10) days’ written notice from Landlord.
 
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9.2 Notwithstanding anything in Section 10.A. of the Lease to the contrary, electricity used by Tenant in the Temporary Space shall be paid for by Tenant through inclusion in Expenses (except as provided in Section 10.B of the Lease with respect to excess usage).
10. Miscellaneous .
10.1 This Amendment sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall Tenant be entitled to any rent abatement, improvement allowance, leasehold improvements, or other work to the Premises, or any similar economic incentives that may have been provided Tenant in connection with entering into the Lease, unless specifically set forth in this Amendment.
10.2 Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect. In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control. The capitalized terms used in this Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Amendment.
10.3 Submission of this Amendment by Landlord is not an offer to enter into this Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Amendment until Landlord has executed and delivered the same to Tenant.
10.4 Tenant hereby represents to Landlord that Tenant has dealt with no broker in connection with this Amendment. Tenant agrees to indemnify and hold Landlord and the Landlord Parties harmless from all claims of any brokers claiming to have represented Tenant in connection with this Amendment.
10.5 Each signatory of this Amendment represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting. Tenant hereby represents and warrants that neither Tenant, nor any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“ OFAC ”); (ii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701¬06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons.” If the foregoing representation is untrue at any time during the Term, an event of default under the Lease will be deemed to have occurred, without the necessity of notice to Tenant.
10.6 Redress for any claim against Landlord under the Lease and this Amendment shall be limited to and enforceable only against and to the extent of Landlord’s interest in the Building. The obligations of Landlord under the Lease are not intended to and shall not be personally binding on, nor shall any resort be had to the private properties of, any of its trustees
 
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or board of directors and officers, as the case may be, its investment manager, the general partners thereof, or any beneficiaries, stockholders, employees, or agents of Landlord or the investment manager, and in no case shall Landlord be liable to Tenant hereunder for any lost profits, damage to business, or any form of special, indirect or consequential damage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
 
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IN WITNESS WHEREOF , Landlord and Tenant have duly executed this Amendment as of the day and year first above written.

LANDLORD:	  		  	TENANT:	
			
LOCON SAN MATEO, LLC,	  		  	WOODMAN LABS, INC.,	
a Delaware limited liability company	  		  	a California corporation	
					
By:	 	/s/ Hanns Lee	  		  	By:	 	/s/ Kurt Amundson	
Name:	 	Hanns Lee	  		  	Name:	 	Kurt Amundson	
Title:	 	Senior Vice President	  		  	Title:	 	CFO	
Dated:	 	August 29, 2012	  		  	Date:	 	August 27, 2012	
					
	 		  		  	By:	 	 	
	 		  		  	Name:	 	 	
	 		  		  	Title:	 	 	
	 		  		  	Dated:	 	 	
 
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EXHIBIT A
OUTLINE AND LOCATION OF TEMPORARY SPACE
attached to and made a part of the Amendment dated as of August 29, 2012, between LOCON SAN MATEO, LLC, a Delaware limited liability company, as Landlord and WOODMAN LABS, INC., a California corporation, as Tenant
Exhibit A is intended only to show the general layout of the Temporary Space as of the beginning of the Temporary Space Effective Date. It does not in any way supersede any of Landlord’s rights set forth in the Lease with respect to arrangements and/or locations of public parts of the Building and changes in such arrangements and/or locations. It is not to be scaled; any measurements or distances shown should be taken as approximate.
 
A-1

EXHIBIT B - TEMPORARY SPACE ALTERATIONS
attached to and made a part of the Amendment dated as of August 29, 2012, between LOCON SAN MATEO, LLC, a Delaware limited liability company, as Landlord and WOODMAN LABS, INC., a California corporation, as Tenant
 
1.	Tenant, following the delivery of the Temporary Space by Landlord and the full and final execution and delivery of the Amendment to which this Exhibit B is attached and all insurance certificates required under the Lease, shall have the right to perform alterations and improvements (the “ Temporary Space Alterations ”) in the Temporary Space substantially in accordance with the plans attached hereto as Schedule l (the “ Plans ”). Notwithstanding the foregoing, Tenant and its contractors shall not have the right to perform Temporary Space Alterations in the Premises unless and until Tenant has complied with all of the terms and conditions of Article 9 of the Lease, including, without limitation, approval by Landlord of the final plans for the Temporary Space Alterations and the contractors to be retained by Tenant to perform such Temporary Space Alterations. Tenant shall be responsible for all elements of the design of Tenant’s plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Temporary Space and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of Tenant’s plans shall in no event relieve Tenant of the responsibility for such design. Landlord’s approval of the contractors to perform the Temporary Space Alterations shall not be unreasonably withheld. The parties agree that Landlord’s approval of the general contractor to perform the Initial Alterations shall not be considered to be unreasonably withheld if any such general contractor (i) does not have trade references reasonably acceptable to Landlord, (ii) does not maintain insurance as required pursuant to the terms of the Lease, (iii) does not have the ability to be bonded for the work in an amount of no less than 150% of the total estimated cost of the Initial Alterations, (iv) does not provide current financial statements reasonably acceptable to Landlord, or (v) is not licensed as a contractor in the state/municipality in which the Premises is located. Tenant acknowledges the foregoing is not intended to be an exclusive list of the reasons why Landlord may reasonably withhold its consent to a general contractor. In addition, Tenant, at Tenant’s sole cost and expense, shall be responsible for arranging for the installation of any cabling and electrical wiring and for keying both the Shell Space and the Marketing Suite.	
 
2.	Tenant agrees to accept the Temporary Space in its “as-is” condition and configuration, it being agreed that Landlord shall not be required to perform any work or incur any costs in connection with the construction or demolition of any improvements in the Temporary Space. This Exhibit B shall not be deemed applicable to an additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease.	
 
B-1

SCHEDULE 1 TO EXHIBIT B
PLANS
 
B-2

SECOND AMENDMENT TO OFFICE LEASE AGREEMENT
THIS SECOND AMENDMENT TO OFFICE LEASE AGREEMENT (the “ Amendment ”) is made and entered into as of September 11, 2012, by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”), and WOODMAN LABS, INC. , a California corporation (“ Tenant ”).
RECITALS
A. Landlord and Tenant are parties to that certain Office Lease Agreement (the “ Original Lease ”), dated November 1, 2011, as amended by that certain First Amendment to Office Lease Agreement, dated as of August 29, 2012 (collectively, the “ Lease ”). Pursuant to the Lease, Landlord has leased to Tenant space totaling 92,140 rentable square feet, currently containing (i) 45,435 rentable square feet comprising the entire building located at 3000E Clearview Way, San Mateo, California (“ Building E ”), and (ii) 37,222 rentable square feet comprising the entire building located at 3000F Clearview Way, San Mateo, California (“ Building F ”), and (iii) 9,483 rentable square feet (the “ Temporary Space ”) comprised of (A) 1,696 rentable square feet known as the marketing suite on the first floor of the building commonly known as Building A located at 3155 Clearview Way, San Mateo, California (“ Building A ”) and (B) 7,787 rentable square feet known as the shell space on the first floor of Building A (collectively, the “ Original Premises ”).
B. Tenant has requested that additional space containing approximately 16,674 rentable square feet described as Suite 200 on the second floor(s) of Building A shown on Exhibit A hereto (the “ Expansion Space ”) be added to the Original Premises and that the Lease be appropriately amended and Landlord is willing to do the same on the following terms and conditions.
NOW, THEREFORE , in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
1. Expansion . Effective as of the Expansion Effective Date (defined below), the Premises, as defined in the Lease, is increased from approximately 92,140 rentable square feet comprised of Building E, Building F and the Temporary Space in Building A to approximately 108,814 rentable square feet by the addition of the Expansion Space, and from and after the Expansion Effective Date, the Original Premises and the Expansion Space, collectively, shall be deemed the “ Premises ”, as defined in the Lease and as used herein. The Term for the Expansion Space shall commence on the Expansion Effective Date and end on the Termination Date (as defined in the Lease). The Expansion Space is subject to all the terms and conditions of the Lease except as expressly modified herein and except that Tenant shall not be entitled to receive any allowances, abatements or other financial concessions granted with respect to the Original Premises unless such concessions are expressly provided for herein with respect to the Expansion Space.
1.1 The “ Expansion Effective Date ” shall be the date upon which Landlord delivers the Expansion Space to Tenant with the Tenant Alterations (as defined in Exhibit B attached hereto) substantially complete, which is estimated to be February 15, 2013 (“ Target Expansion
 
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Effective Date ”). The Expansion Effective Date shall be the date upon which the Tenant Alterations (as defined in Exhibit B attached hereto) in the Expansion Space has been substantially completed; provided, however, that if Landlord shall be delayed in substantially completing the Tenant Alterations in the Expansion Space as a result of the occurrence of a Tenant Delay (defined below), then, for purposes of determining the Expansion Effective Date, the date of substantial completion shall be deemed to be the day that said Tenant Alterations would have been substantially completed absent any such Tenant Delay(s). A “ Tenant Delay ” means any act or omission of Tenant or its agents, employees, vendors or contractors that actually delays substantial completion of the Tenant Alterations, including, without limitation, the following:
1.1.1 Tenant’s failure to furnish information or approvals within any time period specified in the Lease or this Amendment, including the failure to prepare or approve preliminary or final plans by any applicable due date;
1.1.2 Tenant’s selection of equipment or materials that have long lead times after first being informed by Landlord that the selection may result in a delay;
1.1.3 Changes requested or made by Tenant to previously approved plans and specifications;
1.1.4 The performance of work in the Expansion Space by Tenant or Tenant’s contractor(s) during the performance of the Tenant Alterations; or
1.1.5 If the performance of any portion of the Tenant Alterations depends on the prior or simultaneous performance of work by Tenant, a delay by Tenant or Tenant’s contractor(s) in the completion of such work.
The Expansion Space shall be deemed to be substantially completed on the date that Landlord reasonably determines that all Tenant Alterations have been performed (or would have been performed absent any Tenant Delays), other than any details of construction, mechanical adjustment or any other matter, the noncompletion of which does not materially interfere with Tenant’s use of the Expansion Space. The adjustment of the Expansion Effective Date and, accordingly, the postponement of Tenant’s obligation to pay rent on the Expansion Space shall be Tenant’s sole remedy and shall constitute full settlement of all claims that Tenant might otherwise have against Landlord by reason of the Expansion Space not being ready for occupancy by Tenant on the Target Expansion Effective Date.
1.2 In addition to the postponement, if any, of the Expansion Effective Date as a result of the applicability of subsection 1.1 of this Amendment, the Expansion Effective Date shall be delayed to the extent that Landlord fails to deliver possession of the Expansion Space for any other reason (other than Tenant Delays by Tenant), including but not limited to, holding over by prior occupants. Any such delay in the Expansion Effective Date shall not subject Landlord to any liability for any loss or damage resulting therefrom. If the Expansion Effective Date is delayed, the Termination Date shall not be similarly extended.
 
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2. Tenant’s Share . For the period commencing with the Expansion Effective Date and ending on the Termination Date, Tenant’s Share for the Expansion Space is 33.60% of the Building and 6.24% of the Project.
3. Base Rent . In addition to Tenant’s obligation to pay Base Rent for the Original Premises, Tenant shall pay Landlord Base Rent for the Expansion Space as follows:

Months of Term or Period	  	Annual Rent
Per Square Foot	 	  	Annual
Rent	 	  	Monthly
Base Rent	 	
2/15/13* - 2/14/14	  	$	28.80	  	  	$	480,211.20	  	  	$	40,017.60	  	
2/15/14 - 2/14/15	  	$	30.00	  	  	$	500,220.00	  	  	$	41,685.00	  	
2/15/15 - 2/14/16	  	$	31.20	  	  	$	520,228.80	  	  	$	43,352.40	  	
2/15/16 - 2/14/17	  	$	32.40	  	  	$	540,237.60	  	  	$	45,019.80	  	
2/15/17 - 2/14/18	  	$	33.60	  	  	$	560,246.40	  	  	$	46,687.20	  	
2/15/18 - 2/14/19	  	$	34.80	  	  	$	580,255.20	  	  	$	48,354.60	  	
All such Base Rent shall be payable by Tenant in accordance with the terms of the Lease, as amended hereby. The Base Rent and Tenant’s Share of Expenses and Taxes due with respect to the second (2nd) month following the Expansion Effective Date shall be delivered to Landlord simultaneously with Tenant’s execution and delivery of this Amendment.
Notwithstanding anything in the Lease, as amended hereby, to the contrary, so long as Tenant is not in default under the Lease, as amended hereby, Tenant shall be entitled to an abatement of Monthly Installment of Rent with respect to the Premises for the first full month following the Expansion Effective Date (the “Abated Base Rent”). If Tenant defaults under the Lease, as amended hereby, at any time during the Term and fails to cure such default within any applicable cure period under the Lease, then all Abated Base Rent shall immediately become due and payable. Only Base Rent shall be abated pursuant to this Section, as more particularly described herein, and Tenant’s Share of Expenses and Taxes and all other rent and other costs and charges specified in the Lease, as amended hereby, shall remain as due and payable pursuant to the provisions of the Lease, as amended hereby.
 
*	Landlord and Tenant acknowledge that the foregoing schedule is based on the assumption that the Expansion Effective Date is the Target Expansion Effective Date. If the Expansion Effective Date occurs after the Target Expansion Effective Date, the schedule set forth above with respect to the payment of any installment(s) of Base Rent for the Expansion Space shall be appropriately adjusted on a per diem basis to reflect the actual Expansion Effective Date, and the actual Expansion Effective Date shall be set forth in a confirmation letter to be prepared by Landlord. However, the effective date of any increases or decreases in the Base Rent rate shall not be postponed as a result of an adjustment of the Expansion Effective Date as provided above. If the Expansion Effective Date occurs prior to the Target Expansion Effective Date, then, notwithstanding anything in the rent schedule above to the contrary, the annual rent per square foot shall be $27.60 during the period commencing on the Expansion Effective Date and ending February 14, 2013. Beginning February 15, 2013 and ending February 14, 2014, the rental rate shown above (i.e., $28.80) shall apply and the increases in Base Rent rate shall occur on February 15th of each year during the Term.	
 
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4. Additional Security Deposit . Upon Tenant’s execution hereof, Tenant shall pay Landlord the sum of $121,386.00 which is added to and becomes part of the Security Deposit, if any, held by Landlord as provided under Section 6 of the Lease, as amended by Section 9.4 below, as security for payment of Rent and the performance of the other terms and conditions of the Lease by Tenant. Accordingly, simultaneously with the execution hereof, the Security Deposit is increased from $1,300,000.00 to $1,421,386.00.
5. Additional Rent . For the period commencing with the Expansion Effective Date and ending on the Termination Date, Tenant shall pay all additional rent payable under the Lease, including Tenant’s Share of Expenses and Taxes applicable to the Expansion Space, in accordance with the terms of the Lease, as amended hereby.
6. Improvements to Expansion Space .
6.1 Condition of Expansion Space . Tenant has inspected the Expansion Space and agrees to accept the same “as is” without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements, except as may be expressly provided otherwise in this Amendment.
6.2 Responsibility for Improvements to Expansion Space . Landlord shall perform improvements to the Expansion Space in accordance with the terms of Exhibit B attached hereto.
7. Early Access to Expansion Space . Tenant shall be permitted to enter the Expansion Space approximately thirty (30) days prior to Landlord’s reasonable estimate of the Expansion Effective Date. During such period, Tenant shall comply with all terms and provisions of the Lease, except those provisions requiring payment of Base Rent or Tenant’s Share of Expenses and Taxes as to the Expansion Space. If Tenant takes possession of the Expansion Space prior to the Expansion Effective Date for any reason whatsoever (other than the performance of work in the Expansion Space with Landlord’s prior approval), such possession shall be subject to all the terms and conditions of the Lease and this Amendment, and Tenant shall pay Base Rent and Tenant’s Share of Expenses and Taxes as applicable to the Expansion Space to Landlord on a per diem basis for each day of occupancy prior to the Expansion Effective Date. Landlord may withdraw such permission to enter the Expansion Space prior to the Expansion Effective Date at any time that Landlord reasonably determines that such entry by Tenant is causing a dangerous situation for Landlord, Tenant or their respective contractors or employees, or if Landlord reasonably determines that such entry by Tenant is substantially hampering or otherwise preventing Landlord from proceeding with the completion of the Tenant Alterations described in Exhibit B at the earliest possible date.
8. Services .
8.1 Notwithstanding anything in Sections 7.A. and B. of the Lease to the contrary, Landlord shall furnish the following services to the Expansion Space (and Tenant shall not have the right to separately contract for such services with the applicable utility): (i) water service for
 
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use in the lavatories on the floor on which the Expansion Space is located, (ii) janitorial service on Business Days, and (iii) electricity to the Expansion Space for general office use, in accordance with and subject to the terms and conditions of Article 10 of the Lease (as amended by Section 9.2 below with respect to the Expansion Space only). In addition, notwithstanding anything in Section 7.A. of the Lease to the contrary, upon advance notice as is reasonably required by Landlord, Tenant may elect to receive HVAC service during hours other than Normal Business Hours, and Tenant shall pay Landlord the standard charge for such additional service as reasonably determined by Landlord from time to time. Such charge shall be payable as Additional Rent upon ten (10) days’ written notice from Landlord.
8.2 Notwithstanding anything in Section 1 0.A. of the Lease to the contrary, electricity used by Tenant in the Expansion Space shall be paid for by Tenant through inclusion in Expenses (except as provided in Section 10.B of the Lease with respect to excess usage).
9. Other Pertinent Provisions . Landlord and Tenant agree that, effective as of the date of this Amendment (unless different effective date(s) is/are specifically referenced in this Section), the Lease shall be amended in the following additional respects:
9.1 Insurance . Tenant’s insurance required under Article 15 of the Lease (“ Tenant’s Insurance ”) shall include the Expansion Space. Tenant shall provide Landlord with a certificate of insurance, in form and substance satisfactory to Landlord and otherwise in compliance with Article 15 of the Lease, evidencing that Tenant’s Insurance covers the Original Premises and the Expansion Space, upon delivery of this Amendment, executed by Tenant, to Landlord, and thereafter as necessary to assure that Landlord always has current certificates evidencing Tenant’s Insurance.
9.2 Parking . Effective as of the Expansion Effective Date, Tenant’s unreserved parking spaces shall be increased from 248 unreserved parking spaces to 298 unreserved parking spaces. Except as modified herein, the use of such unreserved parking spaces shall be subject to the terms of the Lease.
9.3 Signage .
9.3.1 Elevator Lobby Signage . Provided that Tenant leases and is in occupancy of the Expansion Space, Tenant may install signage in the elevator lobby on the second floor of Building A. Such signage shall be designed, constructed, installed, insured, maintained, repaired and removed from the lobby all at Tenant’s sole cost and expense and subject to Landlord’s reasonable, prior written approval. Tenant, at its cost, shall be responsible for the maintenance, repair or replacement of Tenant’s lobby signage.
9.3.2 Directory Signage . Landlord shall provide and install, at Landlord’s sole cost and expense, the initial signage for Tenant in the Building directory. Such signage (and any replacement or modification thereof) shall consist of Building standard materials and shall comply with Landlord’s then current Building specifications.
9.3.3 Monument Signage . If, in Landlord’s sole discretion, Landlord erects a monument sign serving Building A, Tenant shall have the right to have its name installed on such shared monument sign, and such monument signage rights shall be subject to all of the terms of Section 9.B of the Original Lease.
 
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9.3.4 Building Signage .
(a) If Tenant leases and occupies no less than two (2) full floors of Building A, Tenant shall be entitled to one (1) tenant identification sign on Building A (the “ Building A Signage ”). The exact location of the Building A Signage shall be determined by Tenant, subject to all applicable Laws, any reasonable signage guidelines for the Project established by Landlord that are provided to Tenant prior to installation of the Building A Signage, and Landlord’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Such right to the Building A Signage is personal to Tenant and is subject to the following terms and conditions: (a) Tenant shall submit plans and drawings for the Building Signage to Landlord and to the City of San Mateo and to any other public authorities having jurisdiction and shall obtain written approval from Landlord (not to be unreasonably withheld, conditioned or delayed) and, if applicable, each such jurisdiction prior to installation, and shall comply with all applicable Laws; (b) Tenant shall, at Tenant’s sole cost and expense, design, construct and install the Building A Signage; (c) the size, color and design of the Building A Signage shall be subject to Landlord’s prior written approval; and (d) Tenant shall maintain the Building A Signage in good condition and repair, and all costs of maintenance and repair shall be borne by Tenant. Maintenance shall include, without limitation, cleaning and, if the Building A Signage is illuminated, relamping at reasonable intervals. Tenant shall be responsible for any electrical energy used in connection with the Building A Signage. Notwithstanding the foregoing, Tenant shall not be liable for any fee in connection with Tenant’s right to display the Building A Signage in accordance with the Lease, as amended hereby. At Landlord’s option, Tenant’s right to the Building A Signage may be revoked and terminated upon occurrence of any of the following events: (i) Tenant shall be in default under the Lease, as amended hereby beyond any applicable notice and cure periods; (ii) Tenant leases or occupies less than two (2) full floors of Building A, or (iii) the Lease, as amended, shall terminate or otherwise no longer be in effect.
(b) Upon the expiration or earlier termination of the Lease or at such other time that Tenant’s signage rights are terminated pursuant to the terms hereof, if Tenant fails to remove the Building A Signage and repair the Building in accordance with the terms of the Lease, as amended hereby, Landlord shall cause the Building A Signage to be removed from the Building and the Building to be repaired and restored to the condition which existed prior to the installation of the Building A Signage (including, if necessary, the replacement of any precast concrete panels), all at the sole cost and expense of Tenant and otherwise in accordance with the Lease, as amended hereby, without further notice from Landlord notwithstanding anything to the contrary contained in the Lease, as amended hereby. Tenant shall pay all costs and expenses for such removal and restoration within fifteen (l5) business days following delivery of an invoice therefor accompanied by reasonable supporting documentation. The rights provided in this Section 9.3 shall be non-transferable (except with respect to a Permitted Transferee) unless otherwise agreed by Landlord in writing in its sole discretion.
 
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9.4 Letter of Credit Deletion . Landlord and Tenant acknowledge that Tenant has elected to provide a cash Security Deposit in lieu of the Letter of Credit. Accordingly, Article 35 of the Lease is hereby deleted in its entirety and of no further force and effect.
9.5 Security Deposit and Reduction . Article 6 of the Original Lease is hereby deleted in its entirety and replaced with the following:
“The Security Deposit delivered to Landlord by Tenant shall be held by Landlord without liability for interest (unless required by Law) as security for the performance of Tenant’s obligations. The Security Deposit is not an advance payment of Rent or a measure of Tenant’s liability for damages. Landlord may, from time to time, without prejudice to any other remedy, use all or a portion of the Security Deposit to satisfy past due Rent or to cure any uncured default by Tenant. If Landlord uses the Security Deposit, Tenant shall on demand restore the Security Deposit to its original amount. At the later of (i) termination of this Lease, or (ii) the date Tenant surrenders the Premises to Landlord in accordance with the provisions of this Lease, Landlord shall return any unapplied portion of the Security Deposit (less any amounts retained to reimburse Landlord for any uncured defaults) to Tenant within 10 Business Days after the date this Lease expires or terminates and Tenant surrenders possession of the Premises to Landlord in accordance with this Lease. In addition to any other deductions Landlord is entitled to make pursuant to the terms hereof, Landlord shall have the right to make a good faith estimate of any unreconciled Expenses and/or Taxes as of the Termination Date and to deduct any anticipated shortfall from the Security Deposit. If Landlord transfers its interest in the Premises, Landlord may assign the Security Deposit to the transferee and, following the assignment, Landlord shall have no further liability for the return of the Security Deposit, provided that such transferee has agreed in writing to assume the obligations of Landlord under this Lease with respect to the Security Deposit. Landlord shall not be required to keep the Security Deposit separate from its other accounts. Tenant hereby waives the provisions of Section 1950.7 of the California Civil Code, or any similar or successor Laws now or hereinafter in effect.
Provided no event of default has occurred hereunder in the twelve (12) month period prior to the reduction, and no less than thirty (30) days prior to each requested letter of credit reduction date, Tenant may reduce the amount of the Security Deposit to the amounts specified as follows: (i) to $1,100,000.00 effective as of the first day of the 37th full calendar month of the Term; and (ii) to $750,000.00 effective as of as of the first day of the 49th full calendar month of the Term. Notwithstanding the foregoing, subject to the remaining terms of this Section, and provided Tenant has timely paid all Rent due under this Lease during the 12 month period immediately preceding the effective date of any reduction of the Security Deposit amount, and Tenant’s Financial Information (defined below) reflects a tangible net worth exceeding $200,000,000.00 for the four (4) consecutive calendar quarters immediately prior to the date of Tenant’s request for reduction in the Security Deposit amount, Tenant shall have the right to reduce the amount of the Security Deposit amount so that the new Letter of Credit amount will be $750,000.00. In addition, at any time following the first day of the 37th month of the Term, provided Tenant has timely paid all Rent due under this Lease during the 12 month period immediately preceding the effective date of any reduction of the Letter of Credit amount, and Tenant’s Financial Information reflects a tangible net worth exceeding $400,000,000.00 for three (3) of the four (4) consecutive calendar quarters immediately prior the date of Tenant’s request for reduction in the Security Deposit amount, Tenant shall have the right to reduce the
 
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amount of the Security Deposit amount so that the new Letter of Credit amount will be $325,000.00. Notwithstanding anything to the contrary contained herein, if Tenant has been in default under this Lease at any time prior to the effective date of any reduction of the Security Deposit amount and Tenant has failed to cure such default within any applicable cure period, then Tenant shall have no further right to reduce the amount of the Security Deposit amount as described herein. If Tenant is entitled to a reduction in the Security Deposit amount, Tenant shall provide Landlord with written notice requesting that the Security Deposit amount be reduced as provided above (the “ Reduction Notice ”). Concurrent with Tenant’s delivery of the Reduction Notice, Tenant shall deliver to Landlord for review Tenant’s financial statements prepared in accordance with generally accepted accounting principles and audited by a nationally recognized public accounting firm acceptable to Landlord, and any other financial information requested by Landlord (“ Tenant’s Financial Information ”). If Tenant provides Landlord with a Reduction Notice, and Tenant is entitled to reduce the Security Deposit amount as provided herein, Landlord shall Landlord shall return to Tenant the applicable amount within thirty (30) days following the applicable reduction date.”
10. Right of First Offer .
10.1 Provided Tenant is not then in default under the terms, covenants and conditions of the Lease, as amended hereby, during the period commencing as of the date of this Amendment and ending August 15, 2013, Tenant shall have a one time right of offer (the “ Offer Right ”) to lease each of the separately demised space on the first floor of Building A (as depicted on Exhibit C attached hereto) (each, an “ Offer Space ”) at such time as such Offer Space becomes Available (defined below). Tenant’s Offer Right shall be exercised as follows: at any time after Landlord has determined that the Offer Space has become Available (defined below), Landlord shall advise Tenant (the “ Advice ”) of the terms under which Landlord is prepared to lease such Offer Space to Tenant on the terms set forth in the Advice, which terms shall reflect the Prevailing Market (hereinafter defined) rate for the Offer Space as reasonably determined by Landlord. For purposes hereof, the Offer Space shall be deemed to become “ Available ” as follows: (i) if the Offer Space is not under lease to a third party or otherwise occupied as of the date of mutual execution and delivery of this Amendment, the Offer Space shall be deemed to first become Available (A) at the time Landlord elects, in its sole discretion, to build spec suites in such Offer Space, or (B) prior to Landlord’s leasing of the Offer Space when Landlord has located a prospective tenant that may be interested in leasing the Offer Space; and (ii) thereafter, or if the Offer Space is under lease to a third party or otherwise occupied as of the date of mutual execution and delivery of this Amendment, the Offer Space shall be deemed to become Available when Landlord has determined that the third- party tenant of the Offer Space will not extend or renew the term of its lease, or enter into a new lease, for the Offer Space. Tenant may lease such Offer Space in its entirety only, under such terms, by delivering written notice of exercise to Landlord (the “ Notice of Exercise ”) within five (5) days after the date of Tenant’s receipt (or deemed receipt, per the notice provision of the Lease) of the Advice, failing which Landlord may lease the subject Offer Space to any third party on whatever basis Landlord desires, and Tenant shall have no further rights with respect to such subject Offer Space. If Tenant exercises its Offer Right for the Offer Space in accordance with the terms and conditions of this Section 10, effective as of the date Landlord delivers the subject Offer Space, such Offer Space shall automatically be included within the Premises and subject to all the terms and conditions of the Lease, as amended hereby, except as set forth in Landlord’s notice and as follows:
 
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10.1.1 Tenant’s Share shall be recalculated, using the total square footage of the Premises, as increased by the subject Offer Space, as the case may be.
10.1.2 the subject Offer Space shall be leased on an “as is” basis and Landlord shall have no obligation to improve the subject Offer Space or grant Tenant any improvement allowance thereon except as may be provided in Landlord’s Advice.
10.2 The term for the subject Offer Space shall commence upon the commencement date stated in the Advice and thereupon such Offer Space shall be considered a part of the Premises, provided that all of the terms stated in the Advice, including the termination date set forth in the Advice, shall govern Tenant’s leasing of the Offer Space and only to the extent that they do not conflict with the Advice, the terms and conditions of the Lease, as amended hereby shall apply to the Offer Space and possession shall be tendered to Tenant upon such commencement date. Tenant shall pay Base Rent, Tenant’s Share of Expenses and Taxes and any other additional rent for the Offer Space in accordance with the terms and conditions of the Advice.
10.3 Notwithstanding anything to the contrary set forth herein, Tenant shall have no such Offer Right with respect to the subject Offer Space, as the case may be, and Landlord need not provide Tenant with an Advice, if (a) Tenant is in default under the Lease, as amended hereby, at the time that Landlord would otherwise deliver its Advice for the subject Offer Space as described above; (b) the Premises, or any portion thereof, is sublet at the time Landlord would otherwise deliver its written notice of the subject Offer Right as described above; (c) the Lease, as amended hereby has been assigned prior to the date Landlord would otherwise deliver its written notice of the subject Offer Right as described above; (d) Tenant is not occupying the Premises on the date Landlord would otherwise deliver its written notice of the Offer Right as described above; (e) the subject Offer Space is not intended for the exclusive use of Tenant during the Term; or (f) the existing tenant in the subject Offer Space is interested in extending or renewing its lease for such Offer Space or entering into a new lease for such Offer Space.
10.4 If Landlord is delayed delivering possession of the subject Offer Space due to the holdover or unlawful possession of such space by any party, Landlord shall use reasonable efforts to obtain possession of such space, and the commencement of the term for the subject Offer Space shall be postponed until the date Landlord delivers possession of the subject Offer Space to Tenant free from occupancy by any party.
10.5 The rights of Tenant hereunder with respect to any Potential Offer Space shall terminate on the earlier to occur of: (a) August 15, 2013; (b) Tenant’s failure to exercise its offer right with respect to such Potential Offer Space within the five (5) day period provided in Section 10.1 above; (c) simultaneously with Tenant’s providing Landlord with a Notice of Exercise; and (d) the date Landlord would have provided Tenant an Advice with respect to such Potential Offer Space if Tenant had not been in violation of one or more of the conditions set forth in Section 10.3 above. In addition, if Landlord provides Tenant with an Advice for any Potential Offer Space that contains expansion rights (whether such rights are described as an
 
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expansion option, right of first refusal, right of first offer or otherwise) with respect to any other portion of the Potential Offer Space (such other portion of the Offer Space subject to such expansion rights is referred to herein as the “ Encumbered Potential Offer Space ”) and Tenant does not exercise its Offer Right to lease such Offer Space, Tenant’s Offer Right with respect to the Encumbered Potential Offer Space shall be subject and subordinate to all such expansion rights contained in the Advice.
10.6 If Tenant exercises its Offer Right as to a subject Offer Space, Landlord shall prepare an amendment (an “ Offer Amendment ”) adding the subject Offer Space to the Premises on the terms set forth in the Advice and reflecting the changes in the Monthly Installment of Rent, Annual Rent, rentable square footage of the Premises, Tenant’s Proportionate Share and other appropriate terms. A copy of the Offer Amendment shall be sent to Tenant within a reasonable time after Landlord’s receipt of the Notice of Exercise executed by Tenant, and Tenant shall execute and return the Offer Amendment to Landlord within ten (10) days thereafter, but an otherwise valid exercise of the Offer Right shall be fully effective whether or not the Offer Amendment is executed.
10.7 For purposes of this Section 10, “ Prevailing Market ” shall mean the annual rental rate per square foot for space comparable to the Offer Space in the Building under leases and renewal and expansion amendments being entered into at or about the time that Prevailing Market is being determined, giving appropriate consideration to tenant concessions, brokerage commissions, tenant improvement allowances, existing improvements in the space in question, and the method of allocating operating expenses and taxes. Notwithstanding the foregoing, space leased under any of the following circumstances shall not be considered to be comparable for purposes hereof (a) the lease term is for less than the lease term of the subject Offer Space, (b) the space is encumbered by the option rights of another tenant, or (c) the space has a lack of windows and/or an awkward or unusual shape or configuration. The foregoing is not intended to be an exclusive list of space that will not be considered to be comparable.
10.8 Notwithstanding anything to the contrary set forth herein, if Tenant exercises its Offer Right for an Offer Space between the period commencing on the date of this Amendment through October 31, 2012 (the “ Initial Exercise Period ”), the initial annual rate per rentable square foot of the applicable Offer Space shall be the same as the annual rate per rentable square foot for the Expansion Space on the date the term for the Offer Space commences and thereafter, Base Rent for the applicable Offer Space shall increase at such times and in such amount as Base Rent for the Expansion Space, it being the intent of Landlord and Tenant that the annual rate per rentable square foot for the Offer Space shall always be the same as the annual rate per rentable square foot for Expansion Space. If Tenant exercises its Offer Right during the Initial Exercise Period, Tenant shall be entitled to an abatement of Base Rent with respect to such Offer Space on a prorated basis, as determined by Landlord in proportion to the abatement of Base Rent applicable to the Expansion Space. In addition, if Tenant exercises its Offer Right during the Initial Exercise Period, Tenant shall be entitled to receive an allowance (the “ Offer Space Allowance ”) per square foot of rentable area in the applicable Offer Space leased by Tenant in an amount determined by multiplying $0.625 by the number of full calendar months remaining in the Term on the commencement date for the applicable Offer Space. For example, if there are sixty (60) full calendar months remaining in the Term on the commencement of the term for the subject Offer Space, Tenant shall be entitled to receive an Offer Space Allowance of $37.50 per
 
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square foot of rentable area of Offer Space ($0.625 x 60 = $37.50). Such Offer Space Allowance shall be applied toward the cost of initial improvements to be performed by Landlord in the subject Offer Space (the “ Offer Space Improvements ”), including the cost of preparing plans, drawings and specifications in connection therewith. Notwithstanding anything herein to the contrary, Landlord shall not be obligated to disburse any portion of the Offer Space Allowance during the continuance of an uncured default under the Lease, and Landlord’s obligation to disburse shall only resume when and if such default is cured. The Offer Space Allowance may only be used for the cost of labor, material, permits and contractors fees for the Offer Space Improvements to the Offer Space and the cost of preparing plans and drawings in connection therewith. In no event shall the Offer Space Allowance be used for the purchase of equipment, furniture or other items of personal property of Tenant. Any Offer Space Allowance remaining after the date which is six (6) months following the commencement of the term for the Offer Space shall accrue to Landlord and Tenant shall have no claim in connection therewith.
10.9 Notwithstanding anything herein to the contrary, Tenant’s Offer Right is subject and subordinate to the expansion rights (whether such rights are designated as a right of first offer, right of first refusal, expansion option or otherwise) of any tenant of the Building existing on the date hereof.
11. Miscellaneous .
11.1 This Amendment, including Exhibit A (Outline and Location of Expansion Space) and Exhibit B (Tenant Alterations) attached hereto, sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall Tenant be entitled to any Rent abatement, improvement allowance, leasehold improvements, or other work to the Premises, or any similar economic incentives that may have been provided Tenant in connection with entering into the Lease, unless specifically set forth in this Amendment.
11.2 Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect. In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control. The capitalized terms used in this Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Amendment.
11.3 Submission of this Amendment by Landlord is not an offer to enter into this Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Amendment until Landlord has executed and delivered the same to Tenant.
11.4 Tenant hereby represents to Landlord that Tenant has dealt with no broker other than Kidder Mathews in connection with this Amendment. Tenant agrees to indemnify and hold Landlord and the Landlord Parties harmless from all claims of any other brokers claiming to have represented Tenant in connection with this Amendment.
11.5 Each signatory of this Amendment represents hereby on behalf of Tenant that he or she has the authority to execute and deliver the same on behalf of the party hereto for which
 
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such signatory is acting. Tenant hereby represents and warrants that neither Tenant, nor any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“ OFAC ”); (ii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons.” If the foregoing representation is untrue at any time during the Term, an event of default under the Lease will be deemed to have occurred, without the necessity of notice to Tenant.
IN WITNESS WHEREOF , Landlord and Tenant have duly executed this Amendment as of the day and year first above written.

LANDLORD:	  		  	TENANT:	
			
LOCON SAN MATEO, LLC,	  		  	WOODMAN LABS, INC.,	
a Delaware limited liability company	  		  	a California corporation	
					
By:	 	/s/ Hanns Lee	  		  	By:	 	/s/ Kurt Amundson	
Name:	 	Hanns Lee	  		  	Name:	 	Kurt Amundson	
Title:	 	Senior Vice President	  		  	Title:	 	CFO	
Dated:	 	Sept. 17, 2012	  		  	Date:	 	Sept. 11, 2012	
 
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EXHIBIT A - OUTLINE AND LOCATION OF EXPANSION SPACE
attached to and made a part of the Amendment dated as of September 11, 2012, between LOCON SAN MATEO, LLC, a Delaware limited liability company, as Landlord and WOODMAN LABS, INC., a California corporation, as Tenant
Exhibit A is intended only to show the general layout of the Expansion Space as of the beginning of Expansion Effective Date. It does not in any way supersede any of Landlord’s rights set forth in the Lease with respect to arrangements and/or locations of public parts of the Building and changes in such arrangements and/or locations. It is not to be scaled; any measurements or distances shown should be taken as approximate.

 
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EXHIBIT B - TENANT ALTERATIONS
attached to and made a part of the Amendment dated as of September 11, 2012, between LOCON SAN MATEO, LLC, a Delaware limited liability company, as Landlord and WOODMAN LABS, INC., a California corporation, as Tenant
 
1.	This Exhibit B shall set forth the obligations of Landlord and Tenant with respect to the improvements to be performed in the Expansion Space for Tenant’s use. All improvements described in this Exhibit B to be constructed in and upon the Expansion Space by Landlord are hereinafter referred to as the “ Tenant Alterations .” It is agreed that construction of the Tenant Alterations will be completed at Landlord’s sole cost and expense (subject to the Maximum Amount and further subject to the terms of Section 5 below), using Building standard methods, materials, and finishes. Notwithstanding the foregoing, Landlord and Tenant acknowledge that Plans (hereinafter defined) for the Tenant Alterations have not yet been prepared and, therefore, it is impossible to determine the exact cost of the Tenant Alterations at this time. Accordingly, Landlord and Tenant agree that Landlord’s obligation to pay for the cost of the Tenant Alterations (inclusive of the cost of preparing Plans, obtaining permits, a construction management fee equal to 5% of the total construction costs, and other related costs) shall be limited to $45.00 per rentable square foot of the Expansion Space (the “ Maximum Amount ”) and that Tenant shall be responsible for the cost of Tenant Alterations, plus any applicable state sales or use tax, if any, to the extent that it exceeds the Maximum Amount. Landlord shall enter into a direct contract for the Tenant Alterations with a general contractor selected by Landlord. In addition, Landlord shall have the right to select and/or approve of any subcontractors used in connection with the Tenant Alterations.	
 
2.	Landlord shall cause to be prepared the final architectural, electrical and mechanical construction drawings, plans and specifications (called “ Plans ”) necessary to construct the Tenant Alterations, which Plans shall be mutually and reasonably approved by Landlord and Tenant. Tenant shall be responsible for all elements of the design of the Plans (including, without limitation, functionality of design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment). Tenant shall promptly furnish complete information concerning its requirements to the responsible architect and engineers as and when requested by them. Tenant covenants and agrees to devote such time as may be necessary in consultation with said architect and engineers to enable them to complete and submit the Plans on or before September 14, 2012 (the “ Plans Due Date ”). Time is of the essence in respect of review and approval of the Plans by Tenant. If the Plans are not fully completed and approved by the Plans Due Date, as a result of any delay by Tenant with respect to review and approval of the Plans, Tenant shall be responsible for one day of Tenant Delay for each day during the period beginning on the day following the Plans Due Date and ending on the date completed Plans are approved. (The word “ architect ” as used in this Exhibit B shall include an interior designer or space planner.)	
 
3.	If Landlord’s estimate and/or the actual cost of the Tenant Alterations shall exceed the Maximum Amount, Landlord, prior to commencing any construction of Tenant Alterations, shall submit to Tenant a written estimate setting forth the anticipated cost of	
 
B-1

 	the Tenant Alterations, including but not limited to labor and materials, contractor’s fees and permit fees. Within three (3) business days thereafter, Tenant shall either notify Landlord in writing of its approval of the cost estimate, or specify its objections thereto and any desired changes to the proposed Tenant Alterations. If Tenant notifies Landlord of such objections and desired changes, Tenant shall work with Landlord to reach a mutually acceptable alternative cost estimate.	
 
4.	If Landlord’s estimate and/or the actual cost of construction shall exceed the Maximum Amount (such amounts exceeding the Maximum Amount being herein referred to as the “ Excess Costs ”), Tenant shall pay to Landlord such Excess Costs, plus any applicable state sales or use tax thereon, upon demand. The statements of costs submitted to Landlord by Landlord’s contractors shall be conclusive for purposes of determining the actual cost of the items described therein. The amounts payable by Tenant hereunder constitute rent payable pursuant to the Lease, and the failure to timely pay same constitutes an event of default under the Lease.	
 
5.	If Tenant shall request any change, addition or alteration in any of the Plans after approval by Landlord, Landlord shall have such revisions to the drawings prepared, and Tenant shall reimburse Landlord for the cost thereof, plus any applicable state sales or use tax thereon, upon demand to the extent that the cost of performing such revisions causes the cost of Tenant Alterations to exceed the Maximum Amount. Promptly upon completion of the revisions, Landlord shall notify Tenant in writing of the increased cost, if any, which will be chargeable to Tenant by reason of such change, addition or deletion. Tenant, within one (1) business day, shall notify Landlord in writing whether it desires to proceed with such change, addition or deletion. In the absence of such written authorization, Landlord shall have the option to continue work on the Expansion Space disregarding the requested change, addition or alteration, or Landlord may elect to discontinue work on the Expansion Space until it receives notice of Tenant’s decision, in which event Tenant shall be responsible for any Tenant delay in completion of the Expansion Space resulting therefrom. If such revisions result in a higher estimate of the cost of construction and/or higher actual construction costs which exceed the Maximum Amount, such increased estimate or costs shall be deemed Excess Costs pursuant to Section 4 hereof and Tenant shall pay such Excess Costs, plus any applicable state sales or use tax thereon, upon demand.	
 
6.	Following approval of the Plans and the payment by Tenant of the required portion of the Excess Costs, if any, Landlord shall cause the Tenant Alterations to be constructed substantially in accordance with the approved Plans. Landlord shall notify Tenant of substantial completion of the Tenant Alterations.	
 
7.	Any portion of the Maximum Amount which exceeds the cost of the Tenant Alterations or is otherwise remaining after March 31, 2013, shall accrue to the sole benefit of Landlord, it being agreed that Tenant shall not be entitled to any credit, offset, abatement or payment with respect thereto. Notwithstanding the foregoing, if the cost of the Tenant Alterations is less than the Maximum Amount, so long as Tenant is not in default under the Lease, as amended, Tenant shall be entitled to apply the unused Maximum Amount to the cost of purchasing and installing furniture (collectively, the “ Furniture Costs ”),	
 
B-2

 	which furniture shall be located at all times at the Expansion Space and for use by Tenant in the Expansion Space. Such portion of the unused Maximum Amount which Tenant is entitled to apply toward its Furniture Costs is referred to herein as the “ Furniture Allowance .” Any unused portion of the Maximum Amount that is in excess of the Furniture Allowance shall accrue to the sole benefit of Landlord, it being understood and agreed that Tenant shall not be entitled to receive any credit or abatement in connection therewith. Landlord shall disburse the Furniture Allowance, or applicable portion thereof, to Tenant within forty-five (45) days after the later to occur of (i) receipt of paid invoices from Tenant with respect to Tenant’s actual Furniture Costs, together with any required lien waivers, and (ii) the Expansion Effective Date. However, in no event shall Landlord have any obligation to disburse any portion of the Furniture Allowance after March 31, 2013.	
 
8.	This Exhibit B shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease.	
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
 
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EXHIBIT C — OFFER SPACE
attached to and made a part of the Amendment dated as of September 11, 2012, between LOCON SAN MATEO, LLC, a Delaware limited liability company, as Landlord and WOODMAN LABS, INC., a California corporation, as Tenant

 
C-1

THIRD AMENDMENT TO OFFICE LEASE AGREEMENT
THIS THIRD AMENDMENT TO OFFICE LEASE AGREEMENT (the “ Amendment ”) is made and entered into as of September     , 2012, by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”), and WOODMAN LABS, INC. , a California corporation (“ Tenant ”).
RECITALS
A. Landlord and Tenant are parties to that certain Office Lease Agreement (the “ Original Lease ”), dated November 1, 2011, as amended by that certain First Amendment to Office Lease Agreement, dated as of August 29, 2012, and that certain Second Amendment to Office Lease Agreement, dated as of September 17, 2012 (collectively, the “ Lease ”). Pursuant to the Lease, Landlord has leased to Tenant space totaling 108,814 rentable square feet, currently containing (i) 45,435 rentable square feet comprising the entire building located at 3000E Clearview Way, San Mateo, California (“ Building E ”), and (ii) 37,222 rentable square feet comprising the entire building located at 3000F Clearview Way, San Mateo, California (“ Building F ”), and (iii) 9,483 rentable square feet (the “ Temporary Space ”) comprised of (A) 1,696 rentable square feet known as the marketing suite on the first floor of the building commonly known as Building A located at 3155 Clearview Way, San Mateo, California (“ Building A ”) and (B) 7,787 rentable square feet known as the shell space on the first floor of Building A; and (iv) 16,674 rentable square feet known as Suite 200 in Building A (collectively, the “ Premises ”).
B. Tenant and Landlord mutually desire that the Lease be amended on and subject to the following terms and conditions.
NOW, THEREFORE , in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
1. Amendment . Effective as of the date hereof (unless different effective date(s) is/are specifically referenced in this Section), Landlord and Tenant agree that the Lease shall he amended in accordance with the following terms and conditions:
1.1 Building F Commencement Date . Notwithstanding anything in the Lease to the contrary, the Initial F Premises and the Additional F Premises shall be constructed by Landlord simultaneously (rather than in phases), and the Lease with respect to Building F shall commence on the date (the “ Building F Commencement Date ”) that the Tenant Improvements in the Initial F Premises and Additional F Premises are Substantially Completed (as defined in the Original Lease). All references in the Lease to the “ Initial F Premises Commencement Date ” and the “ Additional F Premises Commencement Date ” shall instead refer to the “ Building F Commencement Date ”. The Building F Commencement Date is estimated to occur on January 15, 2013 (the “ Target Building F Commencement Date ”).
 
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1.2 Building F Rent Schedule . The schedule of Base Rent for Building F is hereby deleted in its entirety and replaced with the following:
Base Rent for Building F:

Period	  	Rentable
Square Footage	 	  	Monthly
Base Rent	 	
1/15/13*— 2/28/13	  	 	37,222	  	  	$	37,222.00	  	
3/1/-13 — 7/31/13	  	 	37,222	  	  	$	63,747.80	  	
8/1/13 — 1/14/14	  	 	37,222	  	  	$	89,332.80	  	
1/15/14 — 1/14/15	  	 	37,222	  	  	$	93,055.00	  	
1/15/15 — 1/14/16	  	 	37,222	  	  	$	96,777.20	  	
1/15/16— 1/14/17	  	 	37,222	  	  	$	100,499.40	  	
1/15/17— 1/14/18	  	 	37,222	  	  	$	104,221.60	  	
1/15/18 — 2/14/19	  	 	37,222	  	  	$	107,943.80	  	
 
*	Landlord and Tenant acknowledge that the foregoing schedule is based on the assumption that the Building F Commencement Date is the Target Building F Commencement Date. If the Building F Commencement Date occurs on a date other than the Target Building F Commencement Date, the schedule set forth above with respect to the payment of any installment(s) of Base Rent for the Building F shall be appropriately adjusted on a per diem basis to reflect the actual Building F Commencement Date, and the actual Building F Commencement Date shall be set forth in a confirmation letter to be prepared by Landlord. However, the effective date of any increases in the Base Rent rate shall not be postponed as a result of an adjustment of the Building F Commencement Date as provided above.	
2. Miscellaneous .
2.1 This Amendment sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall Tenant be entitled to any rent abatement, improvement allowance, leasehold improvements, or other work to the Premises, or any similar economic incentives that may have been provided Tenant in connection with entering into the Lease, unless specifically set forth in this Amendment.
2.2 Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect. In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control. The capitalized terms used in this Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Amendment.
2.3 Submission of this Amendment by Landlord is not an offer to enter into this Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Amendment until Landlord has executed and delivered the same to Tenant.
2.4 Tenant hereby represents to Landlord that Tenant has dealt with no broker other than Kidder Mathews in connection with this Amendment. Tenant agrees to indemnify and hold Landlord and the Landlord Parties harmless from all claims of any other brokers claiming to have represented Tenant in connection with this Amendment.
 
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2.5 Each signatory of this Amendment represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting. Tenant hereby represents and warrants that neither Tenant, nor any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“ OFAC ”); (ii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons.” If the foregoing representation is untrue at any time during the Term, an event of default under the Lease will be deemed to have occurred, without the necessity of notice to Tenant.
2.6 Redress for any claim against Landlord under the Lease and this Amendment shall be limited to and enforceable only against and to the extent of Landlord’s interest in the Building. The obligations of Landlord under the Lease are not intended to and shall not be personally binding on, nor shall any resort be had to the private properties of, any of its trustees or board of directors and officers, as the case may be, its investment manager, the general partners thereof, or any beneficiaries, stockholders, employees, or agents of Landlord or the investment manager, and in no case shall Landlord be liable to Tenant hereunder for any lost profits, damage to business, or any form of special, indirect or consequential damage.
IN WITNESS WHEREOF , Landlord and Tenant have duly executed this Amendment as of the day and year first above written.

LANDLORD:	  		  	TENANT:	
			
LOCON SAN MATEO, LLC,	  		  	WOODMAN LABS, INC.,	
a Delaware limited liability company	  		  	a California corporation	
					
By:	 	/s/ Hanns Lee	  		  	By:	 	/s/ Kurt Amundson	
Name:	 	Hanns Lee	  		  	Name:	 	Kurt Amundson	
Title:	 	Senior Vice President	  		  	Title:	 	CFO	
Dated:	 	Sept. 17, 2012	  		  	Date:	 	Sept. 12, 2012	
					
	 		  		  	By:	 	 	
	 		  		  	Name:	 	 	
	 		  		  	Title:	 	 	
	 		  		  	Dated:	 	 	
 
3

FOURTH AMENDMENT TO OFFICE LEASE AGREEMENT
THIS FOURTH AMENDMENT TO OFFICE LEASE AGREEMENT (this “ Amendment ”) is made and entered into as of March 5, 2013, by and between LOCON SAN MATEO, LLC, a Delaware limited liability company (“ Landlord ”), and WOODMAN LABS, INC., a California corporation (“ Tenant ”).
RECITALS
A. Landlord and Tenant are parties to that certain Office Lease Agreement (the “ Original Lease ”), dated November 1, 2011, as amended by that certain First Amendment to Office Lease Agreement (the “ First Amendment ”), dated as of August 29, 2012, that certain Second Amendment to Office Lease Agreement (the “ Second Amendment ”), dated as of September 11, 2012, and that certain Third Amendment to Office Lease Agreement, dated as of September     [sic], 2012 (collectively, the “ Lease ”). Pursuant to the Lease, Landlord has leased to Tenant space totaling 108,814 rentable square feet, currently containing (i) 45,435 rentable square feet comprising the entire building located at 3000E Clearview Way, San Mateo, California (“ Building E ”), and (ii) 37,222 rentable square feet comprising the entire building located at 3000F Clearview Way, San Mateo, California (“ Building F ”), and (iii) 9,483 rentable square feet (the “ Temporary Space ”) comprised of (A) 1,696 rentable square feet known as Suite C (“ Suite C ”) of the Building (formerly known as the marketing suite) on the first floor of the building commonly known as Building A located at 3155 Clearview Way, San Mateo, California (“ Building A ”) and (B) 7,787 rentable square feet known as Suite A (“ Suite A ”) (formerly known as the shell space) on the first floor of Building A; and (iv) 16,674 rentable square feet known as Suite 200 in Building A (“ Suite 200 ”) (collectively, the “ Original Premises ”).
B. Tenant desires to extend the Term of the Lease with respect to the Temporary Space and has requested that additional space (the “ Second Expansion Space ”), comprised of the balance of the first floor of Building A, be added to the Original Premises and that the Lease be appropriately amended and Landlord is willing to do the same on the following terms and conditions. The Second Expansion Space contains approximately 6,152 rentable square feet and is described as follows: (i) approximately 4,810 rentable square feet known as Suite B located on the first floor of the Building (“ Suite B ”), and (ii) approximately 1,342 rentable square feet known as Suite D located on the first floor of the Building (“ Suite D ”), each as shown on Exhibit A hereto. The parties acknowledge that Landlord’s property management office is currently located in Suite D, and Landlord shall have the right to continue to occupy Suite D until the Suite D Expansion Effective Date (as defined below).
NOW, THEREFORE , in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
1. Square Footage of Temporary Space (i.e., Suite A and Suite C) . Landlord and Tenant acknowledge and agree that the square footage of the Temporary Space set forth in the Lease is erroneous and that, from and after the date hereof, (i) the rentable area of Suite A is 7,938 square feet; and (ii) the rentable area of Suite C is 1,728 square feet. Accordingly, effective as of the date hereof, and continuing throughout the Term, the rentable area of Suite A and Suite C shall be adjusted to reflect such remeasurement, and Tenant’s Share for Suite A and Suite C are as set forth in Section 4 below.
2. Suite B Expansion Date .
2.1. Effective as of February 15, 2013 (the “ Suite B Expansion Effective Date ”), the Original Premises is increased from approximately 108,997 rentable square feet to approximately 113,807

rentable square feet by the addition of Suite B, and from and after the Suite B Expansion Effective Date, the Original Premises and Suite B, collectively, shall be deemed the “Premises”, as defined in the Lease, and as used herein. The Term for Suite B shall commence on the Suite B Expansion Effective Date and end on the Termination Date unless sooner terminated in accordance with the terms of the Lease, as amended hereby. Suite B is subject to all the terms and conditions of the Lease except as expressly modified herein and except that Tenant shall not be entitled to receive any allowances, abatements or other financial concessions granted with respect to the Original Premises unless such concessions are expressly provided for herein with respect to Suite B.
2.2. The Suite B Expansion Effective Date shall be delayed to the extent that Landlord fails to deliver possession of Suite B for any reason. Any such delay in the Suite B Expansion Effective Date shall not subject Landlord to any liability for any loss or damage resulting therefrom. If the Suite B Expansion Effective Date is delayed, the Termination Date under the Lease shall not be similarly extended.
3. Suite D Expansion Date .
3.1. Effective as of the date (the “ Suite D Expansion Effective Date ”) that is the earlier to occur of: (i) sixty (60) days following the date that Tenant provides written notice to Landlord that Tenant will occupy Suite D, or (ii) sixty (60) days following the date Landlord provides written notice to Tenant that Landlord is vacating Suite D, the Original Premises is increased from approximately 113,807 rentable square feet to approximately 115,149 rentable square feet by the addition of Suite D, and from and after the Suite D Expansion Effective Date, the Original Premises and Suite D, collectively, shall be deemed the “Premises”, as defined in the Lease, and as used herein. The Term for Suite D shall commence on the Suite D Expansion Effective Date and end on the Termination Date unless sooner terminated in accordance with the terms of the Lease, as amended hereby. Suite D is subject to all the terms and conditions of the Lease except as expressly modified herein and except that Tenant shall not be entitled to receive any allowances, abatements or other financial concessions granted with respect to the Original Premises unless such concessions are expressly provided for herein with respect to Suite D.
3.2. The Suite D Expansion Effective Date shall be delayed to the extent that Landlord fails to deliver possession of Suite D for any reason. Any such delay in the Suite D Expansion Effective Date shall not subject Landlord to any liability for any loss or damage resulting therefrom. If the Suite D Expansion Effective Date is delayed, the Termination Date under the Lease shall not be similarly extended.
4. Tenant’s Share .
4.1. Suite B . For the period commencing with the Suite B Expansion Effective Date and ending on the Termination Date, Tenant’s Share for Suite B is 9.69% of the Building and 1.80% of the Project.
4.2. Suite D . For the period commencing with the Suite D Expansion Effective Date and ending on the Termination Date, Tenant’s Share for Suite D is 2.70% of the Building and 0.50% of the Project. Following the Suite D Expansion Effective Date, Tenant’s Share for the entire Premises consisting of Suites A, B, C and D of Building A and the Original Premises is, collectively, 43.09% of the Project.
 
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4.3. Suites A and C . For the period commencing on the date hereof and ending on the Termination Date, Tenant’s Share for Suite A and Suite C is as follows:
Suite A: 16.00% of the Building and 2.97% of the Project.
Suite C: 3.48% of the Building and 0.65% of the Project.
5. Base Rent . In addition to Tenant’s obligation to pay Base Rent for Building E, Building F and Suite 200 in Building A, notwithstanding anything in the Lease to the contrary, Tenant shall pay Landlord Base Rent for Suite A, Suite C, Suite B and Suite D in Building A, as follows:
Suite A :

Months of Term or Period	  	Annual Rent
Per Square Foot	 	  	Annual
Rent	 	  	Monthly
Base Rent	 	
2/15/13 – *	  	$	20.40	  	  	$	161,935.20	  	  	$	13,494.60	  	
** – 2/14/14	  	$	28.80	  	  	$	228,614.40	  	  	$	19,051.20	  	
2/15/14 – 2/14/15	  	$	30.00	  	  	$	238,140.00	  	  	$	19,845.00	  	
2/15/15 – 2/14/16	  	$	31.20	  	  	$	247,665.60	  	  	$	20,638.80	  	
2/15/16 – 2/14/17	  	$	32.40	  	  	$	257,191.20	  	  	$	21,432.60	  	
2/15/17 – 2/14/18	  	$	33.60	  	  	$	266,716.80	  	  	$	22,226.40	  	
2/15/18 – 2/14/19	  	$	34.80	  	  	$	276,242.40	  	  	$	23,020.20	  	
 
*	The date (the “ Suite A Rent Increase Date ”) that is the earlier of: (i) February 14, 2014, and (ii) the date of substantial completion of the Tenant Alterations in Suite A; provided, however, that if the Suite A Rent Increase Date is on or after February 14, 2014, Tenant shall pay Base Rent at the rate described in accordance with the applicable row in the rent chart above ($30.00 per rentable square foot per year for the period commencing February 15, 2014 and ending February 14, 2015).	
**	The date immediately following the Suite A Rent Increase Date.	
Notwithstanding anything in the Lease, as amended hereby, to the contrary, so long as Tenant is not in default under the Lease, as amended hereby, Tenant shall be entitled to an abatement of Base Rent with respect to Suite A in the amount of $13,494.60 for the month of March of 2013.
Suite B:

Months of Term or Period	  	Annual Rent
Per Square Foot	 	  	Annual
Rent	 	  	Monthly
Base Rent	 	
2/1/13 – *	  	$	20.40	  	  	$	98,124.00	  	  	$	8,177.00	  	
** – 2/14/14	  	$	28.80	  	  	$	138,528.00	  	  	$	11,544.00	  	
2/15/14 – 2/14/15	  	$	30.00	  	  	$	144,300.00	  	  	$	12,025.00	  	
2/15/15 – 2/14/16	  	$	31.20	  	  	$	150,072.00	  	  	$	12,506.00	  	
2/15/16 – 2/14/17	  	$	32.40	  	  	$	155,844.00	  	  	$	12,987.00	  	
2/15/17 – 2/14/18	  	$	33.60	  	  	$	161,616.00	  	  	$	13,468.00	  	
2/15/18 – 2/14/19	  	$	34.80	  	  	$	167,388.00	  	  	$	13,949.00	  	
 
*	The date (the “Suite B Rent Increase Date”) that is the earlier of: (i) January 31, 2014, and (ii) the date of substantial completion of the Tenant Alterations in Suite B.	
**	The date immediately following the Suite B Rent Increase Date.	
Notwithstanding anything in the Lease, as amended hereby, to the contrary, so long as Tenant is not in default under the Lease, as amended hereby, Tenant shall be entitled to an abatement of Base Rent with respect to Suite B in the amount of $8,177.00 for the month of March of 2013.
 
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Suite C:

Months of Term or Period	  	Annual Rent
Per Square Foot	 	  	Annual
Rent	 	  	Monthly
Base Rent	 	
2/1/13 – 2/14/14	  	$	28.80	  	  	$	49,766.40	  	  	$	4,147.20	  	
2/15/14 – 2/14/15	  	$	30.00	  	  	$	51,840.00	  	  	$	4,320.00	  	
2/15/15 – 2/14/16	  	$	31.20	  	  	$	53,913.60	  	  	$	4,492.80	  	
2/15/16 – 2/14/17	  	$	32.40	  	  	$	55,987.20	  	  	$	4,665.60	  	
2/15/17 – 2/14/18	  	$	33.60	  	  	$	58,060.80	  	  	$	4,838.40	  	
2/15/18 – 2/14/19	  	$	34.80	  	  	$	60,134.40	  	  	$	5,011.20	  	
Notwithstanding anything in the Lease, as amended hereby, to the contrary, so long as Tenant is not in default under the Lease, as amended hereby, Tenant shall be entitled to an abatement of Base Rent with respect to Suite C in the amount of $4,147.20 for the month of March of 2013.
Suite D:

Months of Term or Period	  	Annual Rent
Per Square Foot	 	  	Annual
Rent	 	  	Monthly
Base Rent	 	
Suite D Expansion Effective Date – 2/14/14	  	$	28.80	  	  	$	38,649.60	  	  	$	3,220.80	  	
2/15/14 – 2/14/15	  	$	30.00	  	  	$	40,260.00	  	  	$	3,355.00	  	
2/15/15 – 2/14/16	  	$	31.20	  	  	$	41,870.40	  	  	$	3,489.20	  	
2/15/16 – 2/14/17	  	$	32.40	  	  	$	43,480.80	  	  	$	3,623.40	  	
2/15/17 – 2/14/18	  	$	33.60	  	  	$	45,091.20	  	  	$	3,757.60	  	
2/15/18 – 2/14/19	  	$	34.80	  	  	$	46,701.60	  	  	$	3,891.80	  	
All such Base Rent shall be payable by Tenant in accordance with the terms of the Lease, as amended hereby, except that, upon execution of this Amendment, Tenant shall pay to Landlord the first month of Base Rent and Tenant’s Share of Expenses and Taxes for Suites A, B, C and D. The abated Base Rent with respect to Suite A, Suite B, Suite C and Suite D shall be referred to herein as the “ Abated Rent ”. If an expansion date, e.g., the Suite B Expansion Date, is delayed as provided herein, then the Abated Rent with respect thereto shall be appropriately delayed also unless the delay is caused by Tenant. If Tenant defaults under the Lease, as amended hereby, at any time during the Term and fails to cure such default within any applicable cure period under the Lease, then all Abated Rent shall immediately become due and payable. Only Base Rent shall be abated pursuant to this Section, as more particularly described herein, and Tenant’s Share of Expenses and Taxes and all other rent and other costs and charges specified in the Lease, as amended hereby, shall remain as due and payable pursuant to the provisions of the Lease, as amended hereby.
6. Additional Security Deposit . Upon Tenant’s execution hereof, Tenant shall pay Landlord the sum of $103,479.72 which is added to and becomes part of the Security Deposit, if any, held by Landlord as provided under Section 9.4 of the Second Amendment as security for payment of Rent and the performance of the other terms and conditions of the Lease by Tenant. Accordingly, simultaneously with the execution hereof, the Security Deposit is increased from $1,421,386.00 to $1,524,865.72.
In addition, the second paragraph of Section 9.5 of the Second Amendment is hereby deleted in its entirety and replaced with the following:
“Provided no event of default has occurred hereunder in the twelve (12) month period prior to the reduction, and no less than thirty (30) days prior to each requested Security Deposit reduction date,
 
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Tenant may reduce the amount of the Security Deposit to the amounts specified as follows: (i) to $1,150,000.00 effective as of the first day of the 37th full calendar month of the Term; and (ii) to $750,000.00 effective as of as of the first day of the 49th full calendar month of the Term. Notwithstanding the foregoing, subject to the remaining terms of this Section, and provided Tenant has timely paid all Rent due under this Lease during the 12 month period immediately preceding the effective date of any reduction of the Security Deposit amount, and Tenant’s Financial Information (defined below) reflects a tangible net worth exceeding $200,000,000.00 for the four (4) consecutive calendar quarters immediately prior to the date of Tenant’s request for reduction in the Security Deposit amount, Tenant shall have the right to reduce the amount of the Security Deposit amount so that the new Security Deposit amount will be $750,000.00. In addition, at any time following the first day of the 37th month of the Term, provided Tenant has timely paid all Rent due under this Lease during the 12 month period immediately preceding the effective date of any reduction of the Security Deposit amount, and Tenant’s Financial Information reflects a tangible net worth exceeding $400,000,000.00 for three (3) of the four (4) consecutive calendar quarters immediately prior the date of Tenant’s request for reduction in the Security Deposit amount, Tenant shall have the right to reduce the amount of the Security Deposit amount so that the new Security Deposit amount will be $325,000.00. Notwithstanding anything to the contrary contained herein, if Tenant has been in default under this Lease at any time prior to the effective date of any reduction of the Security Deposit amount and Tenant has failed to cure such default within any applicable cure period, then Tenant shall have no further right to reduce the amount of the Security Deposit amount as described herein. If Tenant is entitled to a reduction in the Security Deposit amount, Tenant shall provide Landlord with written notice requesting that the Security Deposit amount be reduced as provided above (the “ Reduction Notice ”). Concurrent with Tenant’s delivery of the Reduction Notice, Tenant shall deliver to Landlord for review Tenant’s financial statements prepared in accordance with generally accepted accounting principles and audited by a nationally recognized public accounting firm acceptable to Landlord, and any other financial information reasonably requested by Landlord (“ Tenant’s Financial Information ”). If Tenant provides Landlord with a Reduction Notice, and Tenant is entitled to reduce the Security Deposit amount as provided herein, Landlord shall Landlord shall return to Tenant the applicable amount within thirty (30) days following the applicable reduction date.”
7. Additional Rent . For the period commencing with the Second Expansion Effective Date and ending on the Termination Date, Tenant shall pay all additional rent payable under the Lease, including Tenant’s Share of Expenses and Taxes applicable to the Second Expansion Space, in accordance with the terms of the Lease.
8. Improvements to Suite B and Suite A .
8.1. Condition of Suite B and Suite D . Tenant has inspected Suite B and Suite D and agrees to accept the same “as is” without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements, except as may be expressly provided otherwise in this Amendment.
8.2. Responsibility for Improvements to Second Expansion Space . Landlord shall perform improvements to Suite A and Suite B in accordance with Exhibit B attached hereto.
9. Early Access to Second Expansion Space . During any period that Tenant shall be permitted to enter Suite B and Suite D prior to the Suite B Expansion Effective Date or Suite D Expansion Effective Date, as applicable (e.g., to perform alterations or improvements), Tenant shall comply with all terms and provisions of the Lease, except those provisions requiring payment of Base Rent or Tenant’s Share of Expenses and Taxes as to Suite B and Suite D, as applicable. If Tenant takes possession of Suite B and/or Suite D prior to the Suite B Expansion Effective Date or Suite D Expansion Effective Date, as applicable, for any reason whatsoever (other than the performance of work in Suite B
 
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and/or Suite D with Landlord’s prior approval), such possession shall be subject to all the terms and conditions of the Lease and this Amendment, and Tenant shall pay Base Rent and Tenant’s Share of Expenses and Taxes as applicable to Suite B or Suite D, as applicable, to Landlord on a per diem basis for each day of occupancy prior to the Suite B Expansion Effective Date or Suite D Expansion Effective Date, as applicable.
10. Other Pertinent Provisions . Landlord and Tenant agree that, effective as of the date of this Amendment (unless different effective date(s) is/are specifically referenced in this Section), the Lease shall be amended in the following additional respects:
10.1. Insurance . Tenant’s insurance required under Article 15 of the Lease (“ Tenant’s Insurance ”) shall include Suites A, B, C and D of Building A. Tenant shall provide Landlord with a certificate of insurance, in form and substance satisfactory to Landlord and otherwise in compliance with Article 15 of the Lease, evidencing that Tenant’s Insurance covers the Original Premises and Suites A, B, C and D, upon delivery of this Amendment, executed by Tenant, to Landlord, and thereafter as necessary to assure that Landlord always has current certificates evidencing Tenant’s Insurance.
10.2. Parking . Effective as of the Suite B Expansion Effective Date, Tenant’s unreserved parking spaces shall be increased from 298 unreserved parking spaces to 341 unreserved parking spaces. Effective as of the Suite D Expansion Effective Date, Tenant’s unreserved parking spaces shall be increased from 341 unreserved parking spaces to 345 unreserved parking spaces. Except as modified herein, the use of such unreserved parking spaces shall be subject to the terms of the Lease.
10.3. Deletions . Section 7 of the First Amendment is hereby deleted in its entirety, and Landlord and Tenant acknowledge and agree that the Renewal Option set forth in Section 34 of the Original Lease applies to the entire Premises, including, without limitation, Suites A and C of Building A.
10.4. Services . Section 9 of the First Amendment is deleted in its entirety, and Section 8 of the Second Amendment is hereby amended to apply to all portions of the Premises located in Building A.
10.5. Acknowledgment of Work . Tenant acknowledges that, as of the date hereof, Landlord has fulfilled its obligations described in Exhibits D-1 and D-2 to the Original Lease.
10.6. Access to Electrical Closets . Notwithstanding anything to the contrary contained in Section 29 of the Original Lease and provided that Tenant is the sole occupant of each of Building E and Building F, respectively, Landlord agrees that Tenant shall have non-exclusive access to the four (4) electrical closets located in Building E (the “ Building E Electrical Closets ”) and the three (3) electrical closets located in Building F (the “ Building F Electrical Closets ”, together with the Building E Electrical Closets, the “ Electrical Closets ”) during Normal Business Hours (except in the case of an emergency, as provided below), subject to the following terms and conditions:
10.6.1 Tenant shall designate one individual, as Tenant’s representative, to have one (1) key to access the Electrical Closets (the “ Permitted Person ”) subject to the terms and conditions of this Section 10.6, and only such Permitted Person will be permitted to have such key to the Electrical Closets. As of the date hereof, the Permitted Person is Ernest Evans. Tenant shall immediately notify Landlord in writing of any changes to the Permitted Person. If any other Tenant Party desires to have access to the Electrical Closets, such access shall be subject to Landlord’s prior written approval, which shall not be unreasonably withheld or delayed. Any electrical contractors or similar vendors requiring access to the Electrical Closets on Tenant’s behalf shall be subject to Landlord’s prior written approval, which shall not be unreasonably withheld or delayed, and shall be accompanied by the Permitted Person and/or a representative of Landlord.
 
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10.6.2 Tenant’s rights to access the Electrical Closets in each Building shall be automatically revoked if Tenant is no longer the sole occupant of such Building (i.e., Tenant’s access to the Building E Electrical Closets shall be revoked in the event Tenant is no longer the sole occupant of Building E, and Tenant’s access to the Building F Electrical Closets shall be revoked in the event Tenant is no longer the sole occupant of Building F), it being agreed that Tenant shall not have access to any Electrical Closet in any multi-tenanted Building.
10.6.3 Tenant’s access to the Electrical Closets shall be subject to the following rules and regulations:
10.6.3.1 The Electrical Closets shall remain locked at all times.
10.6.3.2 In no event shall Tenant or any Tenant Party, including without limitation, the Permitted Person, at any time touch, adjust, tamper or interfere with the fire panels located in any Electrical Closets.
10.6.3.3 In no event shall Tenant or any Tenant Party, including without limitation, the Permitted Person, access the Electrical Closets during Normal Business Hours without being accompanied by a representative of Landlord. After Normal Business Hours, Tenant may access the Electrical Closets only in the event of an emergency and provided that Tenant promptly notifies Landlord or Landlord’s property manager within twenty-four (24) hours thereafter.
10.7. Fire Sprinkler Quarterly Maintenance . Landlord’s repair obligations set forth in Section 9.B(2) of the Original Lease are hereby modified to exclude responsibility for the quarterly maintenance of the fire/life safety system serving each Building E and Building F. Tenant, at Tenant’s sole cost and expense, shall enter into a contract for the regularly scheduled quarterly preventative maintenance/service contract with a maintenance contractor approved by Landlord for servicing the fire sprinklers serving each of Building E and Building F (and a copy thereof shall be furnished to Landlord). The service contract must include all services suggested by the equipment manufacturer in the operation/maintenance manual and must become effective within thirty (30) days following the date hereof. Should Tenant fail to do so, Landlord may, upon notice to Tenant, enter into such a maintenance/ service contract on behalf of Tenant or perform the work and in either case, charge Tenant the cost thereof along with a reasonable amount for Landlord’s overhead.
11. Right of First Offer . Section 10 (Right of First Offer) of the Second Amendment is hereby deleted in its entirety.
11.1. Provided Tenant is not then in default under the terms, covenants and conditions of the Lease, as amended hereby, following the date of this Amendment, Tenant shall have a one time right of offer (the “ Offer Right ”) to lease the space consisting of 17,133 rentable square feet located on the third floor of Building A (the “ Offer Space ”) at such time as such Offer Space becomes Available (defined below). Tenant’s Offer Right shall be exercised as follows: at any time after Landlord has determined that the Offer Space has become Available (defined below), Landlord shall advise Tenant (the “ Advice ”) of the terms under which Landlord is prepared to lease such Offer Space to Tenant on the terms set forth in the Advice, which terms shall reflect the Prevailing Market (hereinafter defined) rate for the Offer Space as reasonably determined by Landlord. For purposes hereof, the Offer Space shall be deemed to become “ Available ” as follows: the Offer Space shall be deemed to become Available when Landlord has determined that the third-party tenant of the Offer Space will not extend or renew the term
 
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of its lease, or enter into a new lease, for the Offer Space. Tenant may lease such Offer Space in its entirety only, under such terms, by delivering written notice of exercise to Landlord (the “ Notice of Exercise ”) within five (5) business days after the date of Tenant’s receipt (or deemed receipt, per the notice provision of the Lease) of the Advice, failing which Landlord may lease the subject Offer Space to any third party on whatever basis Landlord desires, and Tenant shall have no further rights with respect to such subject Offer Space. If Tenant exercises its Offer Right for the Offer Space in accordance with the terms and conditions of this Section 11, effective as of the date Landlord delivers the Offer Space, such Offer Space shall automatically be included within the Premises and subject to all the terms and conditions of the Lease, as amended hereby, except as set forth in Landlord’s notice and as follows:
11.1.1 Tenant’s Share shall be recalculated, using the total square footage of the Premises, as increased by the subject Offer Space, as the case may be.
11.1.2 the Offer Space shall be leased on an “as is” basis and Landlord shall have no obligation to improve the subject Offer Space or grant Tenant any improvement allowance thereon except as may be provided in Landlord’s Advice.
11.2. The term for the subject Offer Space shall commence upon the commencement date stated in the Advice and thereupon such Offer Space shall be considered a part of the Premises, provided that all of the terms stated in the Advice, including the termination date set forth in the Advice, shall govern Tenant’s leasing of the Offer Space and only to the extent that they do not conflict with the Advice, the terms and conditions of the Lease, as amended hereby shall apply to the Offer Space and possession shall be tendered to Tenant upon such commencement date. Tenant shall pay Base Rent, Tenant’s Share of Expenses and Taxes and any other additional rent for the Offer Space in accordance with the terms and conditions of the Advice. If Tenant leases the Offer Space in accordance with the terms hereof, and leases all of Building A, Section 8 of the Second Amendment, as amended by Section 10.4 above, shall no longer apply to the portion of the Premises located in Building A.
11.3. Notwithstanding anything to the contrary set forth herein, Tenant shall have no such Offer Right with respect to the subject Offer Space, as the case may be, and Landlord need not provide Tenant with an Advice, if: (a) Tenant is in default under the Lease, as amended hereby, at the time that Landlord would otherwise deliver its Advice for the subject Offer Space as described above; (b) the Premises, or any portion thereof, is sublet at the time Landlord would otherwise deliver its written notice of the Offer Right as described above; (c) the Lease, as amended hereby has been assigned prior to the date Landlord would otherwise deliver its written notice of the subject Offer Right as described above; (d) Tenant is not occupying the Premises on the date Landlord would otherwise deliver its written notice of the Offer Right as described above; (e) the subject Offer Space is not intended for the exclusive use of Tenant during the Term; or (f) the existing tenant in the subject Offer Space is interested in extending or renewing its lease for such Offer Space or entering into a new lease for such Offer Space.
11.4. If Landlord is delayed delivering possession of the subject Offer Space due to the holdover or unlawful possession of such space by any party, Landlord shall use reasonable efforts to obtain possession of such space, and the commencement of the term for the subject Offer Space shall be postponed until the date Landlord delivers possession of the subject Offer Space to Tenant free from occupancy by any party.
11.5. The rights of Tenant hereunder with respect to any Offer Space shall terminate on the earlier to occur of: (a) February 14, 2018; (b) Tenant’s failure to exercise its offer right with respect to such Offer Space within the five (5) day period provided in Section 11.1 above; (c) simultaneously with Tenant’s providing Landlord with a Notice of Exercise; and (d) the date Landlord would have provided Tenant an Advice with respect to such Offer Space if Tenant had not been in
 
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violation of one or more of the conditions set forth in Section 11.3 above. In addition, if Landlord provides Tenant with an Advice for any Offer Space that contains expansion rights (whether such rights are described as an expansion option, right of first refusal, right of first offer or otherwise) with respect to any other portion of the potential Offer Space (such other portion of the Offer Space subject to such expansion rights is referred to herein as the “ Encumbered Potential Offer Space ”) and Tenant does not exercise its Offer Right to lease such Offer Space, Tenant’s Offer Right with respect to the Encumbered Potential Offer Space shall be subject and subordinate to all such expansion rights contained in the Advice.
11.6. If Tenant exercises its Offer Right as to a subject Offer Space, Landlord shall prepare an amendment (an “ Offer Amendmen t ”) adding the subject Offer Space to the Premises on the terms set forth in the Advice and reflecting the changes in the Monthly Installment of Rent, Annual Rent, rentable square footage of the Premises, Tenant’s Share and other appropriate terms. A copy of the Offer Amendment shall be sent to Tenant within a reasonable time after Landlord’s receipt of the Notice of Exercise executed by Tenant, and Tenant shall execute and return the Offer Amendment to Landlord within ten (10) days thereafter, but an otherwise valid exercise of the Offer Right shall be fully effective whether or not the Offer Amendment is executed.
11.7. For purposes of this Section 11, “ Prevailing Market ” shall mean the annual rental rate per square foot for space comparable to the Offer Space in the Building under leases and renewal and expansion amendments being entered into at or about the time that Prevailing Market is being determined, giving appropriate consideration to tenant concessions, brokerage commissions, tenant improvement allowances, existing improvements in the space in question, and the method of allocating operating expenses and taxes. Notwithstanding the foregoing, space leased under any of the following circumstances shall not be considered to be comparable for purposes hereof: (a) the lease term is for less than the lease term of the subject Offer Space, (b) the space is encumbered by the option rights of another tenant, or (c) the space has a lack of windows and/or an awkward or unusual shape or configuration. The foregoing is not intended to be an exclusive list of space that will not be considered to be comparable.
11.8. Notwithstanding anything herein to the contrary, Tenant’s Offer Right is subject and subordinate to the expansion rights (whether such rights are designated as a right of first offer, right of first refusal, expansion option or otherwise) of any tenant of the Building existing on the date hereof.
12. Miscellaneous .
12.1. This Amendment, including Exhibit A (Outline and Location of Suite B and Suite D) and Exhibit B (Tenant Alterations) attached hereto, sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall Tenant be entitled to any Rent abatement, improvement allowance, leasehold improvements, or other work to the Premises, or any similar economic incentives that may have been provided Tenant in connection with entering into the Lease, unless specifically set forth in this Amendment.
12.2. Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect. In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control. The capitalized terms used in this Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Amendment.
 
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12.3. Submission of this Amendment by Landlord is not an offer to enter into this Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Amendment until Landlord has executed and delivered the same to Tenant.
12.4. Tenant hereby represents to Landlord that Tenant has dealt with no broker other than Kidder Mathews in connection with this Amendment. Tenant agrees to indemnify and hold Landlord and the Landlord Parties harmless from all claims of any other brokers claiming to have represented Tenant in connection with this Amendment.
12.5. Each signatory of this Amendment represents hereby on behalf of Tenant that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting. Tenant hereby represents and warrants that neither Tenant, nor any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“ OFAC ”); (ii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons.” If the foregoing representation is untrue at any time during the Term, an event of default under the Lease will be deemed to have occurred, without the necessity of notice to Tenant.
12.6. Redress for any claim against Landlord under the Lease and this Amendment shall be limited to and enforceable only against and to the extent of Landlord’s interest in the Building. The obligations of Landlord under the Lease are not intended to and shall not be personally binding on, nor shall any resort be had to the private properties of, any of its trustees or board of directors and officers, as the case may be, its investment manager, the general partners thereof, or any beneficiaries, stockholders, employees, or agents of Landlord or the investment manager, and in no case shall Landlord be liable to Tenant hereunder for any lost profits, damage to business, or any form of special, indirect or consequential damages.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
 
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IN WITNESS WHEREOF , Landlord and Tenant have duly executed this Amendment as of the day and year first above written.

LOCON SAN MATEO, LLC,	  		  	WOODMAN LABS, INC.,	
a Delaware limited liability company	  		  	a California corporation	
					
By:	 	/s/ Hanns Lee	  		  	By:	 	/s/ Kurt Amundson	
Name:	 	Hans Lee	  		  	Name:	 	Kurt Amundson	
Title:	 	SVP	  		  	Title:	 	CFO	
Dated:	 	3/6/2013	  		  	Dated:	 	March 6, 2013	
					
	 		  		  	By:	 	 	
	 		  		  	Name:	 	 	
	 		  		  	Title:	 	 	
	 		  		  	Dated:	 	 	

EXHIBIT A - OUTLINE AND LOCATION OF SECOND EXPANSION SPACE
attached to and made a part of the Amendment dated as of March 5, 2013, between LOCON SAN MATEO, LLC, a Delaware limited liability company, as Landlord and WOODMAN LABS, INC., a California corporation, as Tenant
Exhibit A is intended only to show the general layout of the Second Expansion Space as of the date herof. It does not in any way supersede any of Landlord’s rights set forth in the Lease with respect to arrangements and/or locations of public parts of the Building and changes in such arrangements and/or locations. It is not to be scaled; any measurements or distances shown should be taken as approximate.

EXHIBIT B - TENANT ALTERATIONS
attached to and made a part of the Amendment dated as of March 5, 2013, between LOCON SAN MATEO, LLC, a Delaware limited liability company, as Landlord and WOODMAN LABS, INC., a California corporation, as Tenant
1. This Exhibit B shall set forth the obligations of Landlord and Tenant with respect to the improvements to be performed in Suite A and Suite B of Building A for Tenant’s use. All improvements described in this Exhibit B to be constructed in and upon the Premises by Landlord are hereinafter referred to as the “ Tenant Alterations .” It is agreed that construction of the Tenant Alterations will be completed at Landlord’s sole cost and expense (subject to the Maximum Amount and further subject to the terms of Section 5 below), using Building standard methods, materials, and finishes. Notwithstanding the foregoing, Landlord and Tenant acknowledge that Plans (hereinafter defined) for the Tenant Alterations have not yet been prepared and, therefore, it is impossible to determine the exact cost of the Tenant Alterations at this time. Accordingly, Landlord and Tenant agree that Landlord’s obligation to pay for the cost of Tenant Alterations (inclusive of the cost of preparing Plans, obtaining permits, a construction management fee equal to 5% of the total construction costs, and other related costs) shall be limited to shall be limited to $43.50 per rentable square foot of Suite A and Suite B of Building A (collectively, the “ Maximum Amount ”) and that Tenant shall be responsible for the cost of Tenant Alterations, plus any applicable state sales or use tax, if any, to the extent that it exceeds the Maximum Amount. Notwithstanding the foregoing, the amount of the Maximum Amount shall be reduced as follows: If Tenant does not provide information regarding the Tenant Alterations sufficient for Landlord to enter into the construction contract for the Tenant Alterations by June 30, 2013, the total amount of the Maximum Amount shall decrease by $1.00 per rentable square foot per calendar month or portion thereof, during the period commencing July 1, 2013 and ending on the date that Landlord enters into the construction contract for the Tenant Alterations. By way of example, if Landlord enters into the construction contract on August 15, 2013, the amount of the Maximum Amount shall be decreased by $2.00 per rentable square foot (i.e., $1.00 per rentable square foot for July of 2013 plus $1.00 per rentable square foot for August of 2013) to $41.50 per rentable square foot of Suite A and Suite B of Building A. Landlord shall enter into a direct contract for the Tenant Alterations with a general contractor selected by Landlord. In addition, Landlord shall have the right to select and/or approve of any subcontractors used in connection with the Tenant Alterations. In all events, Landlord shall use reasonable commercial efforts to enter such contract within a commercially reasonable period of time.
2. Tenant shall be solely responsible for the timely preparation and submission to Landlord of the final architectural, electrical and mechanical construction drawings, plans and specifications (called “ Plans ”) necessary to construct the Tenant Alterations, which Plans shall be subject to approval by Landlord and Landlord’s architect and engineers and shall comply with their requirements to avoid aesthetic or other conflicts with the design and function of the balance of the Building. Tenant shall be responsible for all elements of the design of the Plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of the Plans shall in no event relieve Tenant of the responsibility for such design. In all events, Landlord shall use reasonable commercial efforts to approve such Plans within a commercially reasonable period of time. If requested by Tenant, Landlord’s architect will prepare the Plans necessary for such construction at Tenant’s cost. Whether or not the layout and Plans are prepared with the help (in whole or in part) of Landlord’s architect, Tenant agrees to remain solely responsible for the timely preparation and submission of the Plans and for all elements of the design of such Plans and for all costs related thereto. Tenant has assured itself by direct communication with the architect and engineers (Landlord’s or its own, as the case may be) that the final approved Plans can be delivered to Landlord on or before June 30, 2013 (the “Plans Due Date”), provided that Tenant promptly furnishes complete information concerning its requirements to
 
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said architect and engineers as and when requested by them. Tenant covenants and agrees to cause said final, approved Plans to be delivered to Landlord on or before said Plans Due Date and to devote such time as may be necessary in consultation with said architect and engineers to enable them to complete and submit the Plans within the required time limit. Time is of the essence in respect of preparation and submission of Plans by Tenant. If the Plans are not fully completed and approved by the Plans Due Date, the amount of the Allowance shall be reduced as provided in Section 1 above. (The word “architect” as used in this Exhibit B shall include an interior designer or space planner.)
3. If Landlord’s estimate and/or the actual cost of the Tenant Alterations shall exceed the Maximum Amount, Landlord, prior to commencing any construction of Tenant Alterations, shall submit to Tenant a written estimate setting forth the anticipated cost of the Tenant Alterations, including but not limited to labor and materials, contractor’s fees and permit fees. Within three (3) business days thereafter, Tenant shall either notify Landlord in writing of its approval of the cost estimate, or specify its objections thereto and any desired changes to the proposed Tenant Alterations. If Tenant notifies Landlord of such objections and desired changes, Tenant shall work with Landlord to reach a mutually acceptable alternative cost estimate.
4. If Landlord’s estimate and/or the actual cost of construction shall exceed the Maximum Amount (such amounts exceeding the Maximum Amount being herein referred to as the “ Excess Costs ”), Tenant shall pay to Landlord such Excess Costs, plus any applicable state sales or use tax thereon, upon demand. The statements of costs submitted to Landlord by Landlord’s contractors shall be conclusive for purposes of determining the actual cost of the items described therein. The amounts payable by Tenant hereunder constitute rent payable pursuant to the Lease, and the failure to timely pay same constitutes an event of default under the Lease.
5. If Tenant shall request any change, addition or alteration in any of the Plans after approval by Landlord, Landlord shall have such revisions to the drawings prepared, and Tenant shall reimburse Landlord for the cost thereof, plus any applicable state sales or use tax thereon, upon demand to the extent that the cost of performing such revisions cause the cost of Tenant Alterations to exceed the Maximum Amount. Promptly upon completion of the revisions, Landlord shall notify Tenant in writing of the increased cost, if any, which will be chargeable to Tenant by reason of such change, addition or deletion. Tenant, within one business day, shall notify Landlord in writing whether it desires to proceed with such change, addition or deletion. In the absence of such written authorization, Landlord shall have the option to continue work on the Premises disregarding the requested change, addition or alteration, or Landlord may elect to discontinue work on the Premises until it receives notice of Tenant’s decision, in which event Tenant shall be responsible for any Tenant Delay in completion of the Premises resulting therefrom. If such revisions result in a higher estimate of the cost of construction and/or higher actual construction costs which exceed the Maximum Amount, such increased estimate or costs shall be deemed Excess Costs pursuant to Section 4 hereof and Tenant shall pay such Excess Costs, plus any applicable state sales or use tax thereon, upon demand.
6. Following approval of the Plans and the payment by Tenant of the required portion of the Excess Costs, if any, Landlord shall cause the Tenant Alterations to be constructed substantially in accordance with the approved Plans. Landlord shall notify Tenant of substantial completion of the Tenant Alterations.
7. Any portion of the Maximum Amount which exceeds the cost of the Tenant Alterations or is otherwise remaining after December 31, 2013, shall accrue to the sole benefit of Landlord, it being agreed that Tenant shall not be entitled to any credit, offset, abatement or payment with respect thereto.
 
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8. Tenant acknowledges that the Tenant Alterations may be performed by Landlord in Suite A and Suite B of Building A during normal business hours subsequent to the Suite B Expansion Effective Date. Landlord and Tenant agree to cooperate with each other in order to enable the Tenant Alterations to be performed in a timely manner and with as little inconvenience to the operation of Tenant’s business as is reasonably possible. Notwithstanding anything herein to the contrary, any delay in the completion of the Tenant Alterations or inconvenience suffered by Tenant during the performance of the Tenant Alterations shall not delay the Suite B Expansion Effective Date nor shall it subject Landlord to any liability for any loss or damage resulting therefrom or entitle Tenant to any credit, abatement or adjustment of rent or other sums payable under the Lease.
7. This Exhibit B shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease.
 
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FIFTH AMENDMENT TO OFFICE LEASE AGREEMENT
THIS FIFTH AMENDMENT TO OFFICE LEASE AGREEMENT (this “ Amendment ”) is made and entered into as of August 20, 2013, by and between LOCON SAN MATEO, LLC , a Delaware limited liability company (“ Landlord ”), and WOODMAN LABS, INC. , a California corporation (“ Tenant ”).
RECITALS
 
A.	Landlord and Tenant are parties to that certain Office Lease Agreement (the “ Original Lease ”), dated November 1, 2011, as amended by that certain First Amendment to Office Lease Agreement, dated as of August 29, 2012, that certain Second Amendment to Office Lease Agreement, dated as of September 11, 2012, that certain Third Amendment to Office Lease Agreement, dated as of September     [sic], 2012 and that certain Fourth Amendment to Office Lease Agreement (the “ Fourth Amendment ”), dated as of March 5, 2013 (collectively, the “ Lease ”). Pursuant to the Lease, Landlord has leased to Tenant space totaling 115,149 rentable square feet, currently containing (i)  45,435 rentable square feet comprising the entire building located at 3000E Clearview Way, San Mateo, California, and (ii)  37,222 rentable square feet comprising the entire building located at 3000F Clearview Way, San Mateo, California, and (iii)  9,666 rentable square feet comprised of (A) 1,728 rentable square feet known as Suite C (formerly known as the marketing suite) on the first floor of the building commonly known as Building A located at 3155 Clearview Way, San Mateo, California (“ Building A ”) and (B) 7,938 rentable square feet known as Suite A (formerly known as the shell space) on the first floor of Building A; and (iv)  4,810 rentable square feet known as Suite B located on the first floor of Building A, and (v)  1,342 rentable square feet known as Suite D located on the first floor of Building A, and (vi)  16,674 rentable square feet known as Suite 200 on the second floor of Building A (collectively, the “ Original Premises ”)	
 
B.	Tenant has subleased the balance of Building A from Akamai Technologies, Inc., a Delaware corporation (“ Akamai ”), pursuant to the terms of that certain Sublease Agreement, dated June     [sic] 2013 (the “ Sublease ”), which has been consented to by Landlord pursuant to the terms of that certain Consent to Sublease, dated July 18, 2013, by and among Landlord, Tenant and Akamai. Following the commencement date under the Sublease (i.e., the later of (i) October 1, 2013, (ii) the date on which Akamai receives the Master Landlord Consent (as such term is defined in Paragraph 6 of the Sublease), and (iii) the date on which Akamai tenders possession of the Sublease Premises (as such term is defined in the Sublease), Tenant will be occupying Building A in its entirety (other than the Lobby Expansion Space defined below) pursuant to the terms of the Lease, as amended hereby, and the Sublease Tenant and Landlord mutually desire that the Lease be amended on and subject to the following terms and conditions.	
 
C.	Tenant has requested that, for so long as Tenant is the sole occupant of Building A, additional space containing approximately 860 rentable square feet described as the lobby area of Building A shown on Exhibit A hereto (the “ Lobby Expansion Space ”) be added to the Original Premises and that the Lease be appropriately amended and Landlord is willing to do the same on the following terms and conditions.	
 
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NOW, THEREFORE , in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
 
1.	Lobby Expansion and Effective Date . Effective as of the commencement date of the Sublease (the “ Lobby Expansion Effective Date ”), the Original Premises is increased from approximately 115,149 rentable square feet to approximately 116,009 rentable square feet by the addition of the Lobby Expansion Space, and from and after the Lobby Expansion Effective Date, the Original Premises and the Lobby Expansion Space, collectively, shall be deemed the “Premises”, as defined in the Lease, and as used herein. The Term for the Lobby Expansion Space shall commence on the Lobby Expansion Effective Date and end on the Termination Date unless sooner terminated in accordance with the terms of the Lease, as amended hereby. The Lobby Expansion Space is subject to all the terms and conditions of the Lease except as expressly set forth herein and except that Tenant shall not be entitled to receive any allowances, abatements or other financial concessions granted with respect to the Original Premises unless such concessions are expressly provided for herein with respect to the Lobby Expansion Space. If, at any time and for any reason, Tenant fails to occupy all of Building A and/or the Lobby Expansion Space, Tenant shall, if required by Landlord, remove the Lobby Improvements and shall repair any damage resulting therefrom, all at Tenant’s sole cost and expense.	
 
2.	Base Rent and Additional Rent .	
 
 	2.1	Lobby Expansion Space . Tenant shall not be required to pay Base Rent or Tenant’s Share of Expenses and Taxes for the Lobby Expansion Space; provided, however, Tenant shall be responsible for the cost of above-standard services, including after-hours 1-IVAC and after-hours lighting charges, applicable to the Lobby Expansion Space.	
 
 	2.2	Correction to Suite A Base Rent Schedule . The first paragraph immediately below the first rent chart (for Suite A) in Section 5 of the Fourth Amendment is hereby deleted in its entirety and replaced with the following: “*The date (the “ Suite A Rent Increase Date ”) that is the earlier of (i) January 31, 2014, or (ii) the date of substantial completion of the Tenant Alterations in Suite A”.	
 
3.	Additional Security Deposit . No additional Security Deposit shall be required in connection with this Amendment.	
 
4.	Condition of Lobby Expansion Space . Tenant has inspected the Lobby Expansion Space and agrees to accept the same “as is” without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements, except as provided in Exhibit B attached hereto.	
 
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5.	Landlord’s Termination Option . If, at any time and for any reason, Tenant ceases to be the sole occupant of Building A, Landlord shall have the right to terminate the Lease with respect to the Lobby Expansion Space by providing written notice of termination to Tenant. Such termination shall be effective as of the termination date specified in Landlord’s termination notice (the “ Accelerated Lobby Expiration Date ”). If Landlord exercises such termination option, Tenant shall vacate the Lobby Expansion Space in accordance with the terms of the Lease, as amended hereby, on or prior to the Accelerated Lobby Expiration Date, and Sections 6.2, 6.3 and 6.4 below shall, effective as of the Accelerated Lobby Expiration Date, no longer apply to Building A. Such surrender obligations shall include, without limitation, the obligation to remove and restore, at Tenant’s sole cost and expense, any and all improvements to the Lobby Expansion Space and improvements or modifications made to Building A to accommodate Tenant as sole occupant thereof (including, without limitation, any security systems of Tenant and the Lobby Improvements (as defined in Exhibit B attached hereto)) that are designated by Landlord. Tenant shall remain liable for all obligations under the Lease with respect to the Lobby Expansion Space up to and including the Accelerated Lobby Expiration Date.	
 
6.	Other Pertinent Provisions . Landlord and Tenant agree that, effective as of the date of this Amendment (unless different effective date(s) is/are specifically referenced in this Section), the Lease shall be amended in the following additional respects:	
 
 	6.1	Insurance . Tenant’s insurance required under Article 15 of the Original Lease (“ Tenant’s Insurance ”) shall include the Lobby Expansion Space. Tenant shall provide Landlord with a certificate of insurance, in form and substance satisfactory to Landlord and otherwise in compliance with Article 15 of the Original Lease, evidencing that Tenant’s Insurance covers the Original Premises and Lobby Expansion Space, upon delivery of this Amendment, executed by Tenant, to Landlord, and thereafter as necessary to assure that Landlord always has current certificates evidencing Tenant’s Insurance.	
 
 	6.2	Access to Electrical Closets . Notwithstanding anything to the contrary contained in Section 29 of the Original Lease and provided that Tenant is the sole occupant of Building A, Landlord agrees that Tenant shall have non-exclusive access to the three (3) electrical closets located in Building A (the “ Building A Electrical Closets ”) during Normal Business Hours (except in the case of an emergency, as provided below), subject to the following terms and conditions:	
 
 	6.2.1	Tenant shall designate one Permitted Person (as defined in Section 10.6 of the Fourth Amendment), as Tenant’s representative, to have one (1) key to access the Building A Electrical Closets subject to the terms and conditions of this Section 6.2, and only such Permitted Person will be permitted to have such key to the Building A Electrical Closets. As of the date hereof, the Permitted Person is Ernest Evans. Tenant shall immediately notify Landlord in writing of any change of the Permitted Person. If any other Tenant Party desires to have access to the Building A	
 
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 	Electrical Closets, such access shall be subject to Landlord’s prior written approval, which shall not be unreasonably withheld or delayed. Any electrical contractors or similar vendors requiring access to the Building A Electrical Closets on Tenant’s behalf shall be subject to Landlord’s prior written approval, which shall not be unreasonably withheld or delayed, and shall be accompanied by the Permitted Person and/or a representative of Landlord.	
 
 	6.2.2	Tenant’s rights to access the Building A Electrical Closets shall be automatically revoked if Tenant is no longer the sole occupant of Building A, it being agreed that Tenant shall not have access to any electrical closet in any multi-tenanted Building.	
 
 	6.2.3	Tenant’s access to the Building A Electrical Closets shall be subject to the following rules and regulations:	
 
 	6.2.3.1	The Building A Electrical Closets shall remain locked at all times.	
 
 	6.2.3.2	In no event shall Tenant or any Tenant Party, including without limitation, the Permitted Person, at any time touch, adjust, tamper or interfere with the fire panels located in any Building A Electrical Closets.	
 
 	6.2.3.3	In no event shall Tenant or any Tenant Party, including without limitation, the Permitted Person, access the Building A Electrical Closets during Normal Business Hours without being accompanied by a representative of Landlord. After Normal Business Hours, Tenant may access the Building A Electrical Closets only in the event of an emergency and provided that Tenant promptly notifies Landlord or Landlord’s property manager within twenty-four (24) hours thereafter.	
 
 	6.3	Fire Sprinkler Quarterly Maintenance . Notwithstanding anything in the Lease to the contrary, for so long as Tenant is the sole occupant of Building A, Landlord’s repair obligations set forth in Section 9.B(2) of the Original Lease are hereby modified to exclude responsibility for the quarterly maintenance of the fire/life safety system serving Building A. Tenant, at Tenant’s sole cost and expense, shall enter into a contract for the regularly scheduled quarterly preventative maintenance/service contract with a maintenance contractor approved by Landlord for servicing the fire sprinklers serving Building A (and a copy thereof shall be furnished to Landlord). The service contract must include all services suggested by the equipment manufacturer in the operation/maintenance manual and must become effective within thirty (30) days following the date hereof. Should Tenant fail to do so, Landlord may, upon notice to Tenant, enter into such a maintenance/service contract on behalf of Tenant or perform the work and in either case, charge Tenant the cost thereof along with a reasonable amount for Landlord’s overhead.	
 
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 	6.4	Services in Building A . Notwithstanding anything in the Lease to the contrary, for so long as Tenant is the sole occupant of Building A, Section 10.4 of the Fourth Amendment shall not apply (it being agreed that the terms of Section 7A of the Original Lease shall apply to Building A, and Tenant shall be responsible for separately arranging and paying for utilities, janitorial and other services provided to Building A).	
 
 	6.5	Tenant’s Security System . Subject to the terms of the Lease, including, without limitation Section 9 of the Original Lease, Tenant may, at its own expense, install its own security system (“ Tenant’s Security System ”) in each of Building E, Building F and Building A (provided that Tenant, in each case, is the sole occupant of each such Building); provided, however, that Tenant shall coordinate the installation and operation of Tenant’s Security System with Landlord to assure that Tenant’s Security System is compatible with the applicable Building’s systems and equipment. Tenant shall be solely responsible, at Tenant’s sole cost and expense, for the monitoring, operation and removal of Tenant’s Security System. Tenant shall reasonably cooperate with Landlord to the extent Landlord requires access to or information concerning Tenant’s Security System, and Tenant’s indemnity set forth in Section 14 of the Original Lease shall apply to any claims, obligations, costs, damages or liabilities arising out of or in connection with Tenant’s Security System. Notwithstanding anything to the contrary, Landlord shall not directly or indirectly be liable to Tenant or any other person and Tenant hereby waives any and all claims against and releases Landlord and the Landlord Parties from any and all claims arising as a consequence of or related to Tenant’s Security System, or the failure thereof.	
 
 	6.6	Disclosures . Pursuant to California Civil Code Section 1938, Landlord hereby notifies Tenant that as of the date of this Amendment, the Premises has not undergone inspection by a “Certified Access Specialist” to determine whether the Premises meet all applicable construction-related accessibility standards under California Civil Code Section 55.53. If Tenant is billed directly by a public utility with respect to Tenant’s electrical usage at the Premises, then, upon request, Tenant shall provide monthly electrical utility usage for the Premises to Landlord for the period of time requested by Landlord (in electronic or paper format) or, at Landlord’s option, provide any written authorization or other documentation required for Landlord to request information regarding Tenant’s electricity usage with respect to the Premises directly from the applicable utility company.	
 
7.	Miscellaneous .	
 
 	7.1	This Amendment, including Exhibit A (Outline and Location of Lobby Expansion Space) attached hereto, sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall	
 
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 	Tenant be entitled to any rent abatement, improvement allowance, leasehold improvements, or other work to the Premises, or any similar economic incentives that may have been provided Tenant in connection with entering into the Lease, unless specifically set forth in this Amendment.	
 
 	7.2	Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect. In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control. The capitalized terms used in this Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Amendment.	
 
 	7.3	Submission of this Amendment by Landlord is not an offer to enter into this Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Amendment until Landlord has executed and delivered the same to Tenant.	
 
 	7.4	Tenant hereby represents to Landlord that Tenant has dealt with no broker in connection with this Amendment. Tenant agrees to indemnify and hold Landlord and the Landlord Parties harmless from all claims of any brokers claiming to have represented Tenant in connection with this Amendment.	
 
 	7.5	Each signatory of this Amendment represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting. Tenant hereby represents and warrants that neither Tenant, nor any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“ OFAC ”); (ii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons.” If the foregoing representation is untrue at any time during the Term, an event of default under the Lease will be deemed to have occurred, without the necessity of notice to Tenant.	
 
 	7.6	Redress for any claim against Landlord under the Lease and this Amendment shall be limited to and enforceable only against and to the extent of Landlord’s interest in the Building. The obligations of Landlord under the Lease are not intended to and shall not be personally binding on, nor shall any resort be had to the private properties of, any of its trustees or board of directors and officers, as the case may be, its investment manager, the general partners thereof, or any beneficiaries, stockholders, employees, or agents of Landlord or the investment	
 
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 	manager, and in no case shall Landlord be liable to Tenant hereunder for any lost profits, damage to business, or any form of special, indirect or consequential damages.	
[SIGNATURE ON FOLLOWING PAGE]
 
7

IN WITNESS WHEREOF , Landlord and Tenant have duly executed this Amendment as of the day and year first above written.

LANDLORD:	  		  	TENANT:	
			
LOCON SAN MATEO, LLC,	  		  	WOODMAN LABS, INC.,	
a Delaware limited liability company	  		  	A California Corporation	
					
By:	 	/s/ Hanns Lee	  		  	By:	 	/s/ Kurt Amundson	
Name:	 	Hanns Lee	  		  	Name:	 	Kurt Amundson	
Title:	 	Sr. Vice Pres	  		  	Title:	 	CFO	
Dated:	 	8/28/2013	  		  	Dated:	 	8/21/13	
					
	 		  		  	By:	 	 	
	 		  		  	Name:	 	 	
	 		  		  	Title:	 	 	
	 		  		  	Dated:	 	 	
 
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EXHIBIT A - OUTLINE AND LOCATION OF LOBBY EXPANSION SPACE
attached to and made a part of the Amendment dated as of August 20, 2013, between LOCON SAN MATEO, LLC, a Delaware limited liability company, as Landlord and WOODMAN LABS, INC., a California corporation, as Tenant
Exhibit A is intended only to show the general layout of the Lobby Expansion Space as of the beginning of the Lobby Expansion Effective Date. It does not in any way supersede any of Landlord’s rights set forth in the Lease with respect to arrangements and/or locations of public parts of Building A and changes in such arrangements and/or locations. It is not to be scaled; any measurements or distances shown should be taken as approximate.

 
A-1

EXHIBIT B — WORK LETTER FOR LOBBY IMPROVEMENTS
attached to and made a part of the Amendment dated as of August 20, 2013, between LOCON SAN MATEO, LLC, a Delaware limited liability company, as Landlord and WOODMAN LABS, INC., a California corporation, as Tenant
 
1.	This Exhibit B shall set forth the obligations of Landlord and Tenant with respect to the improvements to be performed in the Lobby Expansion Space for Tenant’s use following the Lobby Expansion Effective Date. All improvements described in this Exhibit B to be constructed in and upon the Lobby Expansion Space by Landlord are hereinafter referred to as the “ Lobby Improvements .” It is agreed that construction of the Lobby Improvements will be completed at Tenant’s sole cost and expense using methods, materials, and finishes consistent with the lobby areas of Building E and Building F. Notwithstanding the foregoing, Landlord and Tenant acknowledge that Plans (hereinafter defined) for the Lobby Improvements have not yet been prepared and, therefore, it is impossible to determine the exact cost of the Lobby Improvements at this time. Landlord and Tenant agree that Landlord shall have no obligation to pay for any portion of the cost of Lobby Improvements (including the cost of preparing Plans, obtaining permits, and other related costs) and that Tenant shall be solely responsible for the cost of Lobby Improvements, plus any applicable state sales or use tax, if any. Landlord shall enter into a direct contract for the Lobby Improvements with a general contractor selected by Landlord. In addition, Landlord shall have the right to select and/or approve of any subcontractors used in connection with the Lobby Improvements.	
 
2.	Landlord has approved the final architectural, electrical and mechanical construction drawings, plans and specifications for Building A’s First Floor, prepared by             , dated June 5, 2013 and the Ground Floor Reception Desk plans, dated July 9, 2013 (collectively, the “ Plans ”) necessary to construct the Lobby Improvements. Tenant shall be responsible for all elements of the design of the Plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of the Plans shall in no event relieve Tenant of the responsibility for such design.	
 
3.	Landlord, prior to commencing any construction of Lobby Improvements, shall submit to Tenant a written estimate setting forth the anticipated cost of the Lobby Improvements, including, but not limited to labor and materials, contractor’s fees and permit fees, and Landlord’s construction management fee equal to five percent (5%) of the total construction costs (collectively, the “ Lobby Improvements Costs ”). Within three (3) business days thereafter, Tenant shall either notify Landlord in writing of its approval of the cost estimate, or specify its objections thereto and any desired changes to the proposed Lobby Improvements. If Tenant notifies Landlord of such objections and desired changes, Tenant shall work with Landlord to reach a mutually acceptable alternative cost estimate.	
 
B-1

4.	Tenant shall pay to Landlord such Lobby Improvements Costs, plus any applicable state sales or use tax thereon, upon demand. Without limiting the foregoing, Tenant shall pay Lobby Improvement Costs prior to Landlord commencing construction, based on bids received from the general contractor (and any subsequent increases in costs shall be paid pursuant to the terms of the first sentence of this Section). The statements of costs submitted to Landlord by Landlord’s contractors shall be conclusive for purposes of determining the actual cost of the items described therein. The amounts payable by Tenant hereunder constitute rent payable pursuant to the Lease, and the failure to timely pay same constitutes an event of default under the Lease.	
 
5.	If Tenant shall request any change, addition or alteration in any of the Plans after approval by Landlord, Landlord shall have such revisions to the drawings prepared, and Tenant shall reimburse Landlord for the cost thereof, plus any applicable state sales or use tax thereon, upon demand. Promptly upon completion of the revisions, Landlord shall notify Tenant in writing of the increased cost, if any, which will be chargeable to Tenant by reason of such change, addition or deletion. Tenant, within one (l) business day, shall notify Landlord in writing whether it desires to proceed with such change, addition or deletion. In the absence of such written authorization, Landlord shall have the option to continue work on the Premises disregarding the requested change, addition or alteration, or Landlord may elect to discontinue work on the Premises until it receives notice of Tenant’s decision, in which event Tenant shall be responsible for any delay in completion of the Premises resulting therefrom. If such revisions result in a higher estimate of the cost of construction and/or higher actual construction costs which exceed the estimated Lobby Improvements Costs, such increased estimate or costs shall be deemed a part of the Lobby Improvements Costs pursuant to Section 4 hereof and Tenant shall pay such additional Lobby Improvements Costs, plus any applicable state sales or use tax thereon, upon demand.	
 
6.	Following approval of the Plans and the payment by Tenant of the Lobby Improvements Costs, Landlord shall cause the Lobby Improvements to be constructed substantially in accordance with the approved Plans, subject to Section 7 below.	
 
7.	Tenant acknowledges that the Lobby Improvements may be performed by Landlord subsequent to the Lobby Expansion Effective Date and that Landlord may, in Landlord’s sole discretion, postpone the commencement of performance of the Lobby Improvements by up to ninety (90) days following the mutual execution and delivery of the Amendment. Landlord and Tenant agree to cooperate with each other in order to enable the Lobby Improvements to be performed in a timely manner and with as little inconvenience to the operation of Tenant’s business as is reasonably possible. Notwithstanding anything herein to the contrary, any delay in the completion of the Lobby Improvements or inconvenience suffered by Tenant during the performance of the Lobby Improvements shall not delay the Lobby Expansion Effective Date, nor shall it subject Landlord to any liability for any loss or damage resulting therefrom or entitle Tenant to any credit, abatement or adjustment of rent or other sums payable under the Lease.	
 
B-2

8.	This Exhibit B shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease.	
 
B-3

LEASE AGREEMENT
BETWEEN
LOCON SAN MATEO, LLC, a Delaware limited liability company
(“LANDLORD”)
AND
WOODMAN LABS, INC., a California corporation
(“TENANT”)

LEASE AGREEMENT
This Lease Agreement (the “Lease”) is made and entered into as of September 10, 2013 by and between LOCON SAN MATEO, LLC, a Delaware limited liability company (“Landlord”) and WOODMAN LABS, INC., a California corporation (“Tenant”). Landlord and Tenant have agreed, subject to the terms and conditions set forth herein, to enter into the following Lease.
 
I.	Basic Lease Information.	
 
 	A.	“Building” shall mean the larger of the two existing outbuildings located north of 3000E Clearview Way, San Mateo, California.	
 
 	B.	“Premises” shall mean the area shown on Exhibit A to this Lease. The Premises consists of the entire Building. The “Rentable Square Footage of the Premises” is deemed to be 2,067 square feet. Landlord and Tenant stipulate and agree that the Rentable Square Footage of the Premises is correct.	
 
 	C.	“Monthly Base Rent”: $2,067.00 per month	
 
 	D.	“Term” shall mean a period of approximately 70 months, commencing on the date (the “Commencement Date”) that is the earlier to occur of (i) substantial completion of the Tenant Alterations, and (ii) the date that is nine (9) months following the date of this Lease, and ending on the expiration or earlier termination of that certain Office Lease Agreement, by and between Landlord and Tenant, covering the buildings known as 3000E and 3000F Clearview Way (the “Termination Date”), unless terminated early in accordance with this Lease.	
 
 	E.	“Security Deposit”: None.	
 
 	F.	“Guarantor(s)”: None.	
 
 	G.	“Broker(s)”: None.	
 
 	H.	“Permitted Use”: Subject to Article V below and subject to any limitations of applicable Laws, including, without limitation, the Factory Industrial F-1 Moderate-hazard Occupancy classification of the applicable building code, and of any insurance coverage held by Landlord from time to time, as a workshop involving light manufacturing use for prototype development.	
 
 	I.	“Landlord and Tenant Notice Addresses”:	
Tenant:
On and after the Commencement Date, notices shall be sent to Tenant at 3000E Clearview Way, San Mateo, California 94402, Attn: Ernest Evans.

Landlord:	  	With a copy to:	
		
Lowe Enterprises Real Estate Group
3155 Clearview Way
San Mateo, California 94402
Attention: Hanns Lee, Senior Vice President	  	Lowe Enterprises Real Estate Group
1516 Kimberly Avenue
Fullerton, California 92821
Attention: Vickie Ivey, Vice President	
 
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	  	And to:
 
Lowe Enterprises
11777 San Vicente Boulevard, 9 th Floor
Los Angeles, California 90049
Attention: John DeMarco, Senior Vice President, Corporate Counsel	
 
 	J.	All Monthly Base Rent, Additional Rent and other charges due under this Lease are payable to Landlord at the following address or such other address as Landlord may direct:	
LOCON San Mateo LLC
P.O. Box 511363
Los Angeles, California 90051-7918
 
 	K.	“Business Day(s)” are Monday through Friday of each week, exclusive of New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day (“Holidays”). Landlord may designate additional Holidays, provided that the additional Holidays are commonly recognized by other office buildings in the area where the Building is located.	
 
 	L.	“Law(s)” means all applicable statutes, codes, ordinances, orders, rules and regulations of any municipal or governmental entity.	
 
 	M.	“Property” or “Project” means the Building and the parcel(s) of land on which it is located and, at Landlord’s discretion, the Building garage and other improvements serving the Building, if any, and the parcel(s) of land on which they are located.	
 
II.	Lease Grant.	
Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord, together with the right in common with others to use any portions of the Project that are designated by Landlord for the common use of tenants and others, such as sidewalks, unreserved parking areas, common corridors, elevator foyers, restrooms, vending areas and lobby areas (the “Common Areas”).
 
III.	Possession; Acceptance of Premises.	
By taking possession of the Premises, subject to Landlord’s obligation pursuant to Exhibit C attached hereto, Tenant accepts the Premises “as is”, in its condition and configuration as of the Commencement Date, without any qualifications, restrictions, or limitations. Tenant agrees that there are no representations or warranties by Landlord regarding the condition of the Premises or the Building.
Tenant shall use reasonable efforts to obtain all governmental permits and approvals required by the City of San Mateo, California (the “City”) for Tenant to upgrade and repair the shell of the Premises and to construct the Tenant Alterations and to use the Premises for the Permitted Use (the “Permits”), provided, however, that Landlord shall use commercially reasonable assistance (provided that such assistance does not cause Landlord to incur any costs, liabilities or obligations) to obtain Permits in connection with performing the Tenant Alterations. Tenant shall obtain the Permits at Tenant’s sole cost
 
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and expense, and Tenant shall keep Landlord apprised in writing of the status of its efforts in this regard on no less than on a monthly basis. In no event shall Tenant take any actions with respect to obtaining the Permits that may be binding upon or affect Landlord or the Building or the Project. If, for any reason other than Tenant’s failure to use reasonable efforts as aforesaid, Tenant is unable to obtain the Permits on or before the date (the “Permit Contingency Date”) that is two hundred seventy (270) days following the later of the date that this Lease is mutually executed and delivered by Landlord and Tenant or the date that Tenant has delivered any prepaid rental required hereunder, subject to the terms of this Article III, Tenant shall have the right to accelerate the Termination Date (“Permit Acceleration Option”) of this Lease, with respect to the entire Premises only, from the scheduled Termination Date to the Early Termination Date (as defined below), by delivering written notice (a “Termination Notice” to Landlord within five (5) business days following the Permit Contingency Date. In addition, Landlord shall have the right, at Landlord’s sole election, to require Tenant to pay for any and all costs incurred by Landlord in connection with the City Requirements (as defined below) or terminate this Lease (i) if Tenant is unable to obtain the Permits on or before the Outside Date, or (ii) if, at any time, in connection with issuing the Permits, the City requires the construction of any improvements or alterations at the Project by Landlord or imposes any conditions, limitations, or requirements upon Landlord or the Project (including without limitation, the provision of additional parking spaces or improvements to comply with Laws), or otherwise requires Landlord to incur any liability or cost in connection therewith (individually or collectively, the “City Requirement”). If Landlord is entitled to terminate this Lease pursuant to this Article III, then Landlord may terminate this Lease by delivering to Tenant a Termination Notice on or before the later of (i) date that is five (5) business days following the Permit Contingency Date or (ii) the date that is thirty (30) days after Landlord receives written notice of any City Requirement. If Landlord or Tenant exercises its right to terminate hereunder, this Lease shall terminate except for those provisions of this Lease which expressly survive such termination. If either party fails to deliver a Termination Notice in accordance with this Article III, such party shall be deemed to have waived its right to terminate this Lease and shall have no further right to terminate this Lease pursuant to this Article III and in such event, this Lease shall continue in full force and effect. Notwithstanding the foregoing, at either party’s request, Landlord and Tenant shall promptly execute a letter agreement acknowledging the waiver of the parties’ rights to terminate this Lease pursuant to this Article III. The “Early Termination Date”, for purposes hereof, shall mean the date on which the Termination Notice is delivered to the other party. If Tenant receives the Permits, Tenant shall deliver to Landlord a copy of the Permits within five (5) business days of Tenant’s receipt thereof. If either party so terminates, Landlord shall promptly repay to Tenant any prepaid Rent and any portion of the Pricing Documents Deposit (as defined in Exhibit C attached hereto) that has not been applied or is not then owed to any contractor performing the Tenant Alterations.
 
IV.	Rent.	
As consideration for this Lease, Tenant shall pay Landlord, without any setoff or deduction, the total amount of Monthly Base Rent and Additional Rent due for the Term. “Additional Rent” means all sums (exclusive of Monthly Base Rent) that Tenant is required to pay Landlord. Additional Rent and Monthly Base Rent are sometimes collectively referred to as “Rent”. Tenant shall pay and be liable for all rental, sales and use taxes (but excluding income taxes), if any, imposed upon or measured by Rent under applicable Law. Monthly Base Rent and recurring monthly charges of Additional Rent shall be due and payable in advance on the first day of each calendar month without notice or demand, provided that the installment of Monthly Base Rent for the first full calendar month of the Term shall be payable upon the execution of this Lease by Tenant. All other items of Rent shall be due and payable by Tenant on or before 30 days after billing by Landlord. All payments of Rent shall be by good and sufficient check or by other means (such as automatic debit or electronic transfer) acceptable to Landlord. If Tenant fails to pay any item or installment of Rent when due, Tenant shall pay Landlord an administration fee equal to 5% of the past due Rent. If the Term commences on a day other than the first day of a calendar month or
 
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terminates on a day other than the last day of a calendar month, the Monthly Base Rent shall be prorated based on the number of days in such calendar month. Landlord’s acceptance of less than the correct amount of Rent shall be considered a payment on account of the earliest Rent due. No endorsement or statement on a check or letter accompanying a check or payment shall be considered an accord and satisfaction, and either party may accept the check or payment without prejudice to that party’s right to recover the balance or pursue other available remedies. Tenant’s covenant to pay Rent is independent of every other covenant in this Lease.
 
V.	Compliance with Laws; Use.	
The Premises shall be used only for the Permitted Use and for no other use whatsoever. Tenant shall be solely responsible for determining if its proposed use in the Premises complies with all federal, state and city laws, codes, ordinances, rules and regulations (including, without limitation, zoning, parking, health and safety requirements of the City or other governmental authorities) (“Laws”), for complying with Laws, and for obtaining any and all approvals or permits necessary for the Permitted Use. Landlord makes no representation or warranty either: (i) as to whether or not Tenant’s proposed use complies with Laws or (ii) as to the suitability of the Premises for Tenant’s proposed use. Tenant shall not use or permit the use of the Premises for any purpose which is illegal, dangerous to persons or property or which, in Landlord’s reasonable opinion, unreasonably disturbs any other tenants of the Building or interferes with the operation of the Building. Tenant shall comply with all Laws, including the Americans with Disabilities Act, regarding the operation of Tenant’s business and the use, condition, configuration and occupancy of the Premises. Tenant, within 10 days after receipt, shall provide Landlord with copies of any notices it receives regarding a violation or alleged violation of any Laws. Tenant shall comply with the rules and regulations of the Building attached as Exhibit B and such other reasonable rules and regulations adopted by Landlord from time to time. Tenant shall also cause its agents, contractors, subcontractors, employees, customers, and subtenants to comply with all rules and regulations. Tenant shall not use, or permit to be used, the Premises in any manner that will disturb any other tenant in the Building or Property, or obstruct or interfere with the rights of other tenant or occupants of the Building or Property, or injure or annoy them or create any unreasonable smells, noise or vibrations (taking into account the nature and tenant-mix of the Building). Pursuant to California Civil Code Section 1938, Landlord hereby notifies Tenant that as of the date of this Lease, the Premises has not undergone inspection by a “Certified Access Specialist” to determine whether the Premises meet all applicable construction-related accessibility standards under California Civil Code Section 55.53.
Tenant shall not, and shall not direct, suffer or permit any of the Tenant Related Parties to at any time handle, use, manufacture, store or dispose of in or about the Premises or the Building any (collectively “Hazardous Materials”) flammables, explosives, radioactive materials, hazardous wastes or materials, toxic wastes or materials, or other similar substances, petroleum products or derivatives or any substance subject to regulation by or under any federal, state and local laws and ordinances relating to the protection of the environment or the keeping, use or disposition of environmentally hazardous materials, substances, or wastes, presently in effect or hereafter adopted, all amendments to any of them, and all rules and regulations issued pursuant to any of such laws or ordinances (collectively “Environmental Laws”), nor shall Tenant suffer or permit any Hazardous Materials to be used in any manner not fully in compliance with all Environmental Laws, in the Premises or the Building and appurtenant land or allow the environment to become contaminated with any Hazardous Materials. Notwithstanding the foregoing, Tenant may handle, store, use or dispose of products containing small quantities of Hazardous Materials (such as aerosol cans containing insecticides, toner for copiers, paints, paint remover and the like) to the extent such Hazardous Materials are consistent with Hazardous Materials that are used in connection with general office use (provided, however, that the foregoing shall not be deemed to prevent Tenant from using the Premises for the Permitted Use, subject to the last sentence of this paragraph); provided that Tenant shall always handle, store, use, and dispose of any such Hazardous Materials in a safe and lawful
 
4

manner and never allow such Hazardous Materials to contaminate the Premises, Building and appurtenant land or the environment. If Tenant shall desire to use or handle any other Hazardous Materials at the Premises in connection with the Permitted Use, such use and handling shall be subject to Landlord’s prior written approval and Landlord’s reasonable requirements, such as Tenant’s delivery of hazardous materials disclosure certificate in a form reasonably acceptable to Landlord and, if applicable, material safety data sheets and other reasonably requested documentation.
 
VI.	Intentionally Omitted.	
 
VII.	Services to be Furnished by Landlord.	
No services shall be provided by Landlord. However, if as a result of Tenant’s use of the Premises or the Bicycle Locker (as defined in Article XXXI), Landlord is required to provide services in or about the Premises or Common Areas, Tenant shall pay to Landlord the cost of such services, as additional Rent, within ten (10) days following written demand therefor.
 
VIII.	Leasehold Improvements.	
All improvements and Alterations to the Premises (collectively, “Leasehold Improvements”) shall be owned by Landlord and shall remain upon the Premises without compensation to Tenant. However, Landlord may, at the expiration or earlier termination of the Term, require Tenant to remove, at Tenant’s expense: (1) Cable (defined in Section IX.A) installed by or for the exclusive benefit of Tenant and located in the Premises or other portions of the Building; and (2) any Leasehold Improvements that are performed by or for the benefit of Tenant (collectively referred to as “Required Removables”). The Required Removables designated by Landlord shall be removed by Tenant before the Termination Date. Tenant shall repair damage caused by the installation or removal of Required Removables. If Tenant fails to remove any Required Removables or perform related repairs in a timely manner, Landlord, at Tenant’s expense, may remove and dispose of the Required Removables and perform the required repairs. Tenant, within 30 days after receipt of an invoice, shall reimburse Landlord for the reasonable costs incurred by Landlord.
 
IX.	Repairs and Alterations.	
 
 	A.	Tenant’s Repair Obligations . Tenant shall, at its sole cost and expense, promptly perform all maintenance and repairs to the Premises, and shall keep the Premises in good condition and repair, reasonable wear and tear excepted. Tenant’s repair obligations include, without limitation, repairs to: (1) floor covering; (2) interior partitions; (3) doors; (4) the interior side of demising walls; (5) electronic, phone and data cabling and related equipment (collectively, “Cable”) that is installed by or for the exclusive benefit of Tenant and located in the Premises or other portions of the Building; (6) supplemental air conditioning units, private showers and kitchens, including hot water heaters, plumbing, and similar facilities serving Tenant exclusively; (7) Alterations performed by contractors retained by Tenant, including related HVAC balancing; and (8) the exterior shell, including, but not limited to the roof, doors, and perimeter waterproofing. All work shall be performed in accordance with the rules and procedures described in Section IX.C. below. If Tenant fails to make any repairs to the Premises for more than 15 days after notice from Landlord (although notice shall not be required if there is an emergency), Landlord may make the repairs, and Tenant shall pay the reasonable cost of the repairs to Landlord within 30 days after receipt of an invoice, together with an administrative charge in an amount equal to 10% of the cost of the repairs. Tenant hereby waives any and all rights under and benefits of subsection 1 of Section 1932, and Sections 1941 and 1942 of the California Civil Code, or any similar or successor Laws now or hereinafter in effect.	
 
5

 	B.	Alterations . Tenant shall not make alterations, additions or improvements to the Premises or install any Cable in the Premises or other portions of the Building or the Project (collectively referred to as “Alterations”) without first obtaining the written consent of Landlord in each instance. Prior to starting work, Tenant shall furnish Landlord with plans and specifications reasonably acceptable to Landlord; names of contractors reasonably acceptable to Landlord (provided that Landlord may designate specific contractors with respect to Building systems); copies of contracts; necessary permits and approvals; evidence of contractor’s and subcontractor’s insurance in amounts reasonably required by Landlord; and any security for performance that is reasonably required by Landlord. Changes to the plans and specifications must also be submitted to Landlord for its approval. Alterations shall be constructed in a good and workmanlike manner using materials of a quality that is at least equal to the quality designated by Landlord as the minimum standard for the Building. Landlord may designate reasonable rules, regulations and procedures for the performance of work in the Building and the Project and, to the extent reasonably necessary to avoid disruption to the occupants of the Building and the Project, shall have the right to designate the time when Alterations may be performed. Tenant shall reimburse Landlord within 10 days after receipt of an invoice for sums paid by Landlord for third party examination of Tenant’s plans for any Alterations. In addition, within 10 days after receipt of an invoice from Landlord, Tenant shall pay Landlord a fee for Landlord’s oversight and coordination of any Alterations equal to 10% of the cost of the Alterations. Upon completion, Tenant shall furnish “as-built” plans (if applicable due to the nature of the Alteration), completion affidavits, full and final waivers of lien in recordable form, and receipted bills covering all labor and materials. Tenant shall assure that the Alterations comply with all insurance requirements and Laws. Landlord’s approval of an Alteration shall not be a representation by Landlord that the Alteration complies with applicable Laws or will be adequate for Tenant’s use.	
 
X.	Use of Electrical and Water Services by Tenant.	
Electricity and water (if applicable) used by Tenant in the Premises shall be paid for by Tenant either by a separate monthly charge payable by Tenant to Landlord or directly to the utility company, within thirty (30) days after demand. If any utility system upgrades, submeters or additional equipment is required to serve the Premises, installation and maintenance cost thereof (which shall include proper pre-surveying, sawcutting, trenching, backfilling, re-compacting and re-surfacing the disturbed asphalt and/or concrete) shall be paid for by Tenant. If Tenant separately contracts with the utility provider for electrical services, Tenant shall, upon Landlord’s request, deliver any documentation or information reasonably required by Landlord, or provide permission for Landlord to request such information directly from such utility suppliers, so that Landlord may comply with California Public Resources Code § 25402.10 or any similar or successor law, code or regulation.
 
XI.	Entry by Landlord.	
Landlord, its agents, contractors and representatives may enter the Premises to inspect or show the Premises, to clean and make repairs, alterations or additions to the Premises, and to conduct or facilitate repairs, alterations or additions to any portion of the Building, including other tenants’ premises. Except in emergencies, Landlord shall provide Tenant with reasonable prior notice of entry into the Premises, which may be given orally. If reasonably necessary for the protection and safety of Tenant and
 
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its employees, Landlord shall have the right to temporarily close all or a portion of the Premises to perform repairs, alterations and additions. Entry by Landlord shall not constitute constructive eviction or entitle Tenant to an abatement or reduction of Rent.
 
XII.	Assignment and Subletting.	
Tenant shall not assign, sublease, transfer or encumber any interest in this Lease or allow any third party to use any portion of the Premises (collectively or individually, a “Transfer”) without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Tenant shall not be entitled to receive monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed Transfer and Tenant’s sole remedy shall be an action to enforce any such provision through specific performance or declaratory judgment. Tenant hereby waives the provisions of Section 1995.310 of the California Civil Code, or any similar or successor Laws, now or hereinafter in effect, and all other remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable Laws, on behalf of the proposed transferee. If Tenant is a corporation, limited liability company, partnership, or similar entity, and if the entity which owns or controls a majority of the voting shares/rights at any time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall constitute a Transfer. The foregoing shall not apply so long as Tenant is an entity whose outstanding stock is listed on a recognized security exchange, or if at least 80% of its voting stock is owned by another entity, the voting stock of which is so listed. Any attempted Transfer in violation of this Article shall, at Landlord’s option, be void. Consent by Landlord to one or more Transfer(s) shall not operate as a waiver of Landlord’s rights to approve any subsequent Transfers. In no event shall any Transfer release or relieve Tenant from any obligation under this Lease.
 
XIII.	Liens.	
Tenant shall not permit mechanic’s or other liens to be placed upon the Property, Premises or Tenant’s leasehold interest in connection with any work or service done or purportedly done by or for benefit of Tenant. If a lien is so placed, Tenant shall, within 10 days of notice from Landlord of the filing of the lien, fully discharge the lien by settling the claim which resulted in the lien or by bonding or insuring over the lien in the manner prescribed by the applicable lien Law. If Tenant fails to discharge the lien, then, in addition to any other right or remedy of Landlord, Landlord may bond or insure over the lien or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount paid by Landlord to bond or insure over the lien or discharge the lien, including, without limitation, reasonable attorneys’ fees (if and to the extent permitted by Law) within 30 days after receipt of an invoice from Landlord.
 
XIV.	Indemnity and Waiver of Claims.	
 
 	A.	Except to the extent caused by the gross negligence or willful misconduct of Landlord or any Landlord Related Parties (defined below), Tenant shall indemnify, defend and hold Landlord, its trustees, members, principals, beneficiaries, partners, officers, directors, employees, Mortgagee(s) (defined in Article XXV) and agents (“Landlord Related Parties”) harmless against and from all liabilities, obligations, damages, penalties, claims, actions, costs, charges and expenses, including, without limitation, reasonable attorneys’ fees and other professional fees (if and to the extent permitted by Law), which may be imposed upon, incurred by or asserted against Landlord or any of the Landlord Related Parties and arising out of or in connection with any third party claim against a Landlord Related Party that arises out of any damage or injury occurring in the Premises or any acts or omissions (including violations of Law) of Tenant, the Tenant Related Parties (defined below) or any of Tenant’s transferees, contractors or licensees. As used herein, “Tenant Related Parties” means Tenant, its trustees, members, principals, beneficiaries, partners, officers, directors, employees and agents.	
 
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 	B.	Landlord and the Landlord Related Parties shall not be liable for, and Tenant waives, all claims for loss or damage to Tenant’s business or loss, theft or damage to Tenant’s Property or the property of any person claiming by, through or under Tenant resulting from: (1) wind or weather; (2) the failure of any sprinkler, heating or air-conditioning equipment, any electric wiring or any gas, water or steam pipes; (3) the backing up of any sewer pipe or downspout; (4) the bursting, leaking or running of any tank, water closet, drain or other pipe; (5) water, snow or ice upon or coming through the roof, skylight, stairs, doorways, windows, walks or any other place upon or near the Building; (6) any act or omission of any party other than Landlord or Landlord Related Parties; (7) Earthquake and (8) any causes not reasonably within the control of Landlord. Tenant shall insure itself against such losses under Article XV below.	
 
XV.	Insurance.	
Tenant shall carry and maintain the following insurance (“Tenant’s Insurance”), at its sole cost and expense: (1) Commercial General Liability Insurance applicable to Tenant’s Permitted Use, the Premises and its appurtenances providing, on an occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk Property/Business Interruption Insurance, including flood and earthquake, written at replacement cost value and with a replacement cost endorsement covering all of Tenant’s trade fixtures, equipment, furniture and other personal property within the Premises (“Tenant’s Property”); (3) Workers’ Compensation Insurance as required by the state in which the Premises is located and in amounts as may be required by applicable statute; and (4) Employers Liability Coverage of at least $1,000,000.00 per occurrence. Any company writing any of Tenant’s Insurance shall have an A.M. Best rating of not less than A-VIII. All Commercial General Liability Insurance policies shall name Tenant as a named insured and Landlord (or any successor), and their respective members, principals, beneficiaries, partners, officers, directors, employees, and agents, and other designees of Landlord as the interest of such designees shall appear, as additional insureds. All policies of Tenant’s Insurance shall contain endorsements that the insurer(s) shall give Landlord and its designees at least 30 days’ advance written notice of any change, cancellation, termination or lapse of insurance. Tenant shall provide Landlord with a certificate of insurance evidencing Tenant’s Insurance prior to the earlier to occur of the Commencement Date or the date Tenant is provided with possession of the Premises for any reason, and upon renewals at least 15 days prior to the expiration of the insurance coverage. So long as the same is available at commercially reasonable rates, Landlord shall maintain so called All Risk property insurance on the Building at replacement cost value, as reasonably estimated by Landlord. Except as specifically provided to the contrary, the limits of either party’s’ insurance shall not limit such party’s liability under this Lease.
 
XVI.	Subrogation.	
Notwithstanding anything in this Lease to the contrary, Landlord and Tenant hereby waive and shall cause their respective insurance carriers to waive any and all rights of recovery, claim, action or causes of action against the other and their respective trustees, principals, beneficiaries, partners, officers, directors, agents, and employees, for any loss or damage that may occur to Landlord or Tenant or any party claiming by, through or under Landlord or Tenant, as the case may be, with respect to Tenant’s Property, the Building, the Premises, any additions or improvements to the Building or Premises, or any contents thereof, including all rights of recovery, claims, actions or causes of action arising out of the negligence of Landlord or any Landlord Related Parties or the negligence of Tenant or any Tenant Related Parties, which loss or damage is (or would have been, had the insurance required by this Lease been carried) covered by insurance.
 
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XVII.	Casualty Damage.	
If all or any part of the Premises is damaged by fire or other casualty, Tenant shall immediately notify Landlord in writing. During any period of time that all or a material portion of the Premises is rendered untenantable as a result of a fire or other casualty, the Rent shall abate for the portion of the Premises that is untenantable and not used by Tenant, unless such casualty was caused by Tenant or Tenant Related Parties. Landlord shall have the right to terminate this Lease if: (1) any part of the Building shall be damaged by fire or other casualty (whether or not the Premises has been damaged); (2) Landlord is not permitted by Law to rebuild the Building in substantially the same form as existed before the fire or casualty; (3) the Premises have been damaged; (4) any Mortgagee requires that the insurance proceeds be applied to the payment of the mortgage debt; or (5) a material uninsured loss to the Building occurs. Landlord may exercise its right to terminate this Lease by notifying Tenant in writing within 30 days after the date of the casualty. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the fire or other casualty. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Article, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Lease. The provisions of this Lease, including this Article XVII, constitute an express agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any part of the Premises, the Building, the Property or the Project, and any Laws, including, without limitation, Sections 1932(2) and 1933(4) of the California Civil Code, with respect to any rights or obligations concerning damage or destruction in the absence of an express agreement between the parties, and any similar or successor Laws now or hereinafter in effect, shall have no application to this Lease or any damage or destruction to all or any part of the Premises, the Building or the Property.
 
XVIII.	Condemnation.	
Either party may terminate this Lease if the whole or any part of the Premises shall be taken or condemned for any public or quasi-public use under Law, by eminent domain or private purchase in lieu thereof (a “Taking”). Landlord shall also have the right to terminate the Lease if there is a Taking of any portion of the Building or Property. In order to exercise its right to terminate the Lease, Landlord or Tenant, as the case may be, must provide written notice of termination to the other within 45 days after the terminating party first receives notice of the Taking. Any such termination shall be effective as of the date the physical taking of the Premises or the portion of the Building or Property occurs. All compensation awarded for a Taking, or sale proceeds, shall be the property of Landlord, any right to receive compensation or proceeds being expressly waived by Tenant. Tenant hereby waives any and all rights it might otherwise have pursuant to Section 1265.130 of the California Code of Civil Procedure, or any similar or successor Laws.
 
XIX.	Events of Default.	
Tenant shall be considered to be in default of this Lease upon the occurrence of any of the following events of default:
 
 	A.	Tenant’s failure to pay when due all or any portion of the Rent, if the failure continues for 3 days after written notice to Tenant (“Monetary Default”).	
 
 	B.	Tenant’s failure (other than a Monetary Default) to comply with any term, provision or covenant of this Lease, if the failure is not cured within 10 days after written notice to	
 
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 	Tenant. However, if Tenant’s failure to comply cannot reasonably be cured within 10 days, Tenant shall be allowed additional time (not to exceed 30 days) as is reasonably necessary to cure the failure so long as: (1) Tenant commences to cure the failure within 10 days, and (2) Tenant diligently pursues a course of action that will cure the failure and bring Tenant back into compliance with this Lease. However, if Tenant’s failure to comply creates a hazardous condition, the failure must be cured immediately upon notice to Tenant.	
 
 	C.	Tenant or any Guarantor becomes insolvent, makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts when due.	
 
 	D.	The leasehold estate is taken by process or operation of Law.	
 
 	E.	In the case of any ground floor or retail Tenant, Tenant does not take possession of, or abandons or vacates all or any portion of the Premises.	
 
XX.	Remedies.	
 
 	A.	Upon the occurrence of any event or events of default, whether enumerated in Article XIX or not, Landlord shall have the right without notice or demand (except as expressly provided in Article XIX) to pursue any of its rights and remedies at Law or in equity, including any one or more of the following remedies (and without limiting the generality of the foregoing, Tenant hereby specifically waives notice and demand for payment of Rent or other obligations, except for those notices specifically required pursuant to the terms of Article XIX or this Article XX, and waives any and all other notices or demand requirements imposed by applicable law):	
 
 	1.	Terminate this Lease and Tenant’s right to possession of the Premises and recover from Tenant an award of damages equal to the sum of the following:	
 
 	(a)	The Worth at the Time of Award of the unpaid Rent which had been earned at the time of termination;	
 
 	(b)	The Worth at the Time of Award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such Rent loss that Tenant affirmatively proves could have been reasonably avoided;	
 
 	(c)	The Worth at the Time of Award of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such Rent loss that Tenant affirmatively proves could be reasonably avoided;	
 
 	(d)	Any other amount necessary to compensate Landlord for all the detriment either proximately caused by Tenant’s failure to perform Tenant’s obligations under this Lease or which in the ordinary course of things would be likely to result therefrom; and	
 
 	(e)	All such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time under applicable law.	
 
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The “Worth at the Time of Award” of the amounts referred to in parts (a) and (b) above, shall be computed by allowing interest at the lesser of a per annum rate equal to: (i) the greatest per annum rate of interest permitted from time to time under applicable law, or (ii) the Prime Rate plus 5%. For purposes hereof, the “Prime Rate” shall be the per annum interest rate publicly announced as its prime or base rate by a federally insured bank selected by Landlord in the State of California. The “Worth at the Time of Award” of the amount referred to in part (c), above, shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus 1%;
 
 	2.	Employ the remedy described in California Civil Code § 1951.4 (Landlord may continue this Lease in effect after Tenant’s breach and abandonment and recover Rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations); or	
 
 	3.	Notwithstanding Landlord’s exercise of the remedy described in California Civil Code § 1951.4 in respect of an event or events of default, at such time thereafter as Landlord may elect in writing, to terminate this Lease and Tenant’s right to possession of the Premises and recover an award of damages as provided above in Paragraph XX.A.1.	
 
 	B.	The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord’s knowledge of such preceding breach at the time of acceptance of such Rent. No waiver by Landlord of any breach hereof shall be effective unless such waiver is in writing and signed by Landlord.	
 
 	C.	TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (c) AND 1179 OF THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE LEASE TERM PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT’S BREACH. TENANT ALSO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS LEASE.	
 
 	D.	No right or remedy of Landlord shall be exclusive of any other right or remedy. Each right and remedy shall be cumulative and in addition to any other right and remedy now or subsequently available to Landlord by agreement or at Law or in equity. In addition to other remedies provided in this Lease, Landlord shall be entitled, to the extent permitted by applicable law, to injunctive relief, or to a decree compelling performance of any of the covenants, agreements, conditions or provisions of this Lease, or to any other remedy allowed to Landlord at law or in equity. If Tenant is in default, Landlord shall be entitled to receive interest on any unpaid item of Rent at a rate equal to the lesser of the maximum rate permitted by Law or the Prime Rate plus 4%. For purposes hereof, the “Prime Rate” shall be the per annum interest rate publicly announced as its prime or base rate by a federally insured bank selected by Landlord in the state in which the Building is located. Forbearance by Landlord to enforce one or more remedies shall not constitute a waiver of any default.	
 
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XXI.	Limitation of Liability.	
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO LANDLORD’S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) (DEFINED IN ARTICLE XXV BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN ARTICLE XXV BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.
 
XXII.	No Waiver.	
Either party’s failure to declare a default immediately upon its occurrence, or delay in taking action for a default shall not constitute a waiver of the default, nor shall it constitute an estoppel. Either party’s failure to enforce its rights for a default shall not constitute a waiver of its rights regarding any subsequent default. Receipt by Landlord of Tenant’s keys to the Premises shall not constitute an acceptance or surrender of the Premises.
 
XXIII.	Quiet Enjoyment.	
Tenant shall, and may peacefully have, hold and enjoy the Premises, subject to the terms of this Lease, provided Tenant pays the Rent and fully performs all of its covenants and agreements. This covenant and all other covenants of Landlord shall be binding upon Landlord and its successors only during its or their respective periods of ownership of the Building, and shall not be a personal covenant of Landlord or the Landlord Related Parties.
 
XXIV.	Holding Over.	
If Tenant fails to surrender the Premises at the expiration or earlier termination of this Lease, occupancy of the Premises after the termination or expiration shall be that of a tenancy at sufferance. Tenant’s occupancy of the Premises during the holdover shall be subject to all the terms and provisions of this Lease and Tenant shall pay an amount (on a per month basis without reduction for partial months during the holdover) equal to 200% of the greater of: (1) the sum of the Monthly Base Rent and Additional Rent due for the period immediately preceding the holdover; or (2) the fair market gross rental for the Premises as reasonably determined by Landlord. No holdover by Tenant or payment by Tenant after the expiration or early termination of this Lease shall be construed to extend the Term or prevent Landlord from immediate recovery of possession of the Premises by summary proceedings or otherwise. In addition to the payment of the amounts provided above, if Tenant fails to vacate the Premises within 10 days after Landlord requests Tenant to deliver possession to Landlord, Tenant shall be liable to Landlord for all damages, including, without limitation, consequential damages, that Landlord suffers from the holdover.
 
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XXV.	Subordination to Mortgages; Estoppel Certificate.	
 
 	A.	Tenant accepts this Lease subject and subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising upon the Premises, the Building, the Property or the Project, and to renewals, modifications, refinancings and extensions thereof (collectively referred to as a “Mortgage”). The party having the benefit of a Mortgage shall be referred to as a “Mortgagee”. This clause shall be self-operative, but upon request from a Mortgagee, Tenant shall execute a commercially reasonable subordination agreement in favor of the Mortgagee. In lieu of having the Mortgage be superior to this Lease, a Mortgagee shall have the right at any time to subordinate its Mortgage to this Lease. If requested by a successor-in-interest to all or a part of Landlord’s interest in the Lease, Tenant shall, without charge, attorn to the successor-in-interest.	
 
 	B.	Within 10 days following any written request which Landlord may make from time to time, Tenant shall execute and deliver to Landlord or mortgagee or prospective mortgagee a sworn statement certifying: (a) the date of commencement of this Lease; (b) the fact that this Lease is unmodified and in full force and effect (or, if there have been modifications to this Lease, that this Lease is in full force and effect, as modified, and stating the date and nature of such modifications); (c) the date to which the rent and other sums payable under this Lease have been paid; (d) the fact that there are no current defaults under this Lease by Tenant or, to Tenant’s knowledge, by Landlord, except as specified in Tenant’s statement; and (e) such other matters as may be requested by Landlord. Landlord and Tenant intend that any statement delivered pursuant to this Section may be relied upon by any mortgagee, beneficiary or purchaser. Tenant irrevocably agrees that if Tenant fails to execute and deliver such certificate within such 10 day period Landlord or Landlord’s beneficiary or agent may execute and deliver such certificate on Tenant’s behalf, and that such certificate shall be fully binding on Tenant.	
 
XXVI.	Attorneys’ Fees.	
If either party institutes a suit against the other for violation of or to enforce any covenant or condition of this Lease, or if either party intervenes in any suit in which the other is a party to enforce or protect its interest or rights, the prevailing party shall be entitled to all of its costs and expenses, including, without limitation, reasonable attorneys’ fees.
 
XXVII.	Notice.	
If a demand, request, approval, consent or notice (collectively referred to as a “notice”) shall or may be given to either party by the other, the notice shall be in writing and delivered by hand or sent by registered or certified mail with return receipt requested, or sent by overnight or same day courier service at the party’s respective Notice Address(es) set forth in Article I, except that if Tenant has vacated the Premises (or if the Notice Address for Tenant is other than the Premises, and Tenant has vacated such address) without providing Landlord a new Notice Address, Landlord may serve notice in any manner described in this Article or in any other manner permitted by Law. Each notice shall be deemed to have been received or given on the earlier to occur of actual delivery or the date on which delivery is refused, or, if Tenant has vacated the Premises or the other Notice Address of Tenant without providing a new Notice Address, 3 days after notice is deposited in the U.S. mail or with a courier service in the manner described above. Either party may, at any time, change its Notice Address by giving the other party written notice of the new address in the manner described in this Article.
 
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XXVIII.	Excepted Rights.	
This Lease does not grant any rights to light or air over or about the Building. Landlord excepts and reserves exclusively to itself the use of: (1) roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms, any Building risers or similar areas that are used by Landlord for the provision of Building services, (4) rights to the land and improvements below the floor of the Premises, (5) the improvements and air rights above the Premises, and (6) except as expressly provided in this Lease, the improvements and air rights outside the demising walls of the Premises. Landlord has the right to change the Building’s name or address. Landlord also has the right to make such other changes to the Property and Building as Landlord deems appropriate, provided the changes do not materially affect Tenant’s ability to use the Premises for the Permitted Use. Landlord shall also have the right (but not the obligation) to temporarily close the Building if Landlord reasonably determines that there is an imminent danger of significant damage to the Building or of personal injury to Landlord’s employees or the occupants of the Building. The circumstances under which Landlord may temporarily close the Building shall include, without limitation, electrical interruptions, hurricanes, civil disturbances, and earthquakes. A closure of the Building under such circumstances shall not constitute a constructive eviction nor entitle Tenant to an abatement or reduction of Rent.
 
XXIX.	Surrender of Premises.	
At the expiration or earlier termination of this Lease or Tenant’s right of possession, Tenant shall remove Tenant’s Property (defined in Article XV) from the Premises, and quit and surrender the Premises to Landlord, broom clean, and in good order, condition and repair, ordinary wear and tear excepted. Tenant shall also be required to remove the Required Removables in accordance with Article VIII. If Tenant fails to remove any of Tenant’s Property within 2 days after the termination of this Lease or of Tenant’s right to possession, Landlord, at Tenant’s sole cost and expense, shall be entitled (but not obligated) to remove and store Tenant’s Property. Landlord shall not be responsible for the value, preservation or safekeeping of Tenant’s Property. Tenant shall pay Landlord, upon demand, the expenses and storage charges incurred for Tenant’s Property. In addition, if Tenant fails to remove Tenant’s Property from the Premises or storage, as the case may be, within 30 days after written notice, Landlord may deem all or any part of Tenant’s Property to be abandoned, and title to Tenant’s Property shall be deemed to be immediately vested in Landlord.
 
XXX.	Miscellaneous.	
 
 	A.	This Lease and the rights and obligations of the parties shall be interpreted, construed and enforced in accordance with the Laws of the State of California and Landlord and Tenant hereby irrevocably consent to the jurisdiction and proper venue of such state. If any term or provision of this Lease shall to any extent be invalid or unenforceable, the remainder of this Lease shall not be affected, and each provision of this Lease shall be valid and enforced to the fullest extent permitted by Law. The headings and titles to the Articles and Sections of this Lease are for convenience only and shall have no effect on the interpretation of any part of this Lease.	
 
 	B.	Tenant shall not record this Lease or any memorandum without Landlord’s prior written consent.	
 
 	C.	Landlord and Tenant hereby waive any right to trial by jury in any proceeding based upon a breach of this Lease.	
 
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 	D.	Whenever a period of time is prescribed for the taking of an action by Landlord, the period of time for the performance of such action shall be extended by the number of days that the performance is actually delayed due to strikes, acts of God, shortages of labor or materials, war, civil disturbances and other causes beyond the reasonable control of Landlord (“Force Majeure”).	
 
 	E.	Landlord shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under this Lease and in the Building and/or Property referred to herein, and upon such transfer Landlord shall be released from any further obligations hereunder, and Tenant agrees to look solely to the successor in interest of Landlord for the performance of such obligations.	
 
 	F.	Tenant represents that it has dealt with no broker in connection with this Lease. Tenant shall indemnify and hold Landlord and the Landlord Related Parties harmless from all claims of any brokers claiming to have represented Tenant in connection with this Lease. Landlord agrees to indemnify and hold Tenant and the Tenant Related Parties harmless from all claims of any brokers claiming to have represented Landlord in connection with this Lease.	
 
 	G.	Tenant covenants, warrants and represents that: (1) each individual executing, attesting and/or delivering this Lease on behalf of Tenant is authorized to do so on behalf of Tenant; (2) this Lease is binding upon Tenant; and (3) Tenant is duly organized and legally existing in the state of its organization and is qualified to do business in the State of California. If there is more than one Tenant, or if Tenant is comprised of more than one party or entity, the obligations imposed upon Tenant shall be joint and several obligations of all the parties and entities. Notices, payments and agreements given or made by, with or to any one person or entity shall be deemed to have been given or made by, with and to all of them. Tenant hereby represents and warrants that neither Tenant, nor, to Tenant’s actual knowledge, any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (a) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”); (b) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (c) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons.” Landlord hereby represents and warrants that Landlord is not (a) the target of any sanctions program that is established by OFAC; (b) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (c) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons.”	
 
 	H.	This Lease shall create only the relationship of landlord and tenant between the parties, and not a partnership, joint venture or any other relationship. This Lease and the covenants and conditions in this Lease shall inure only to the benefit of and be binding only upon Landlord and Tenant and their permitted successors and assigns.	
 
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 	I.	The expiration of the Term, whether by lapse of time or otherwise, shall not relieve either party of any obligations which accrued prior to or which may continue to accrue after the expiration or early termination of this Lease. Without limiting the scope of the prior sentence, it is agreed that Tenant’s obligations under Sections IV, VIII, XIV, XX, XXIV and XXIX shall survive the expiration or early termination of this Lease.	
 
 	J.	Landlord has delivered a copy of this Lease to Tenant for Tenant’s review only, and the delivery of it does not constitute an offer to Tenant or an option. This Lease shall not be effective against any party hereto until an original copy of this Lease has been signed by such party.	
 
 	K.	All understandings and agreements previously made between the parties are superseded by this Lease, and neither party is relying upon any warranty, statement or representation not contained in this Lease. This Lease may be modified only by a written agreement signed by Landlord and Tenant.	
 
XXXI.	Bicycle Storage Area.	
Subject to the terms of this Article XXXI, Tenant shall have the right to, at Tenant’s sole cost and expense, demolish the shed depicted on Exhibit A attached hereto and install up to twelve (12) bicycle storage locker (the “Bicycle Locker”) to store bicycles used by Tenant’s employees. The demolition work and installation of the Bicycle Locker shall be performed by Tenant in accordance with the terms of Article IX of this Lease. The Bicycle Locker and all demolition, construction and other alterations performed in connection therewith shall be subject to Landlord’ prior written approval, which shall not be unreasonably withheld. Tenant shall not store any items other than bicycles and related bicycle equipment in the Bicycle Locker, nor shall Tenant store anything that is unsafe or otherwise may create a hazardous condition, or that may increase Landlord’s insurance rates, or cause a cancellation or modification of Landlord’s insurance coverage. Landlord shall not be liable for any theft or damage to any bicycles stored in the Bicycle Locker, it being understood that Tenant will be using the Bicycle Locker at its own risk. Tenant shall be responsible for maintaining the Bicycle Locker at Tenant’s sole cost and expense. Upon expiration or earlier termination of the Term, Tenant shall completely vacate and surrender the Bicycle Locker to Landlord, empty of all stored items placed therein by or on behalf of Tenant. All terms and provisions of this Lease shall be applicable to the Storage Area, including, without limitation, Articles XIV (Indemnification), and XV (Insurance), except that Landlord need not supply any services to the Bicycle Locker and such area shall not be part of the “Premises” for purposes of calculating the rentable square footage of the Premises. Tenant agrees that Landlord shall not be liable therefor and that the availability or non-availability of the Bicycle Locker as a result of any applicable Laws and Tenant’s right to install and use the Bicycle Locker shall not affect any of Tenant’s other obligations under this Lease.
 
XXXII.	Entire Agreement.	
This Lease and the following exhibits and attachments constitute the entire agreement between the parties and supersede all prior agreements and understandings related to the Premises, including all lease proposals, letters of intent and other documents: Exhibit A (Outline and Location of Premises), Exhibit B (Rules and Regulations) and Exhibit C (Work Letter).
[SIGNATURES ARE ON FOLLOWING PAGE]
 
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IN WITNESS WHEREOF , Landlord and Tenant have executed this Lease as of the day and year first above written.

LANDLORD:	
	
LOCON SAN MATEO, LLC,
a Delaware limited liability company	
		
By:	 	 	
Name:	 	 	
Its:	 	 	
	
TENANT:	
	
WOODMAN LABS, INC.,
a California corporation	
		
By:	 	/s/ Kurt Amundson	
Name:	 	Kurt Amundson	
Title:	 	CFO	
 
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EXHIBIT A
OUTLINE AND LOCATION OF PREMISES AND SHED
This Exhibit is attached to and made a part of the Lease by and between LOCON SAN MATEO, LLC, a Delaware limited liability company (“Landlord”) and W OODMAN LABS, INC., a California corporation (“Tenant”) for the larger of two outbuildings located north of 3000E Clearview Way.

 
A-1

EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the Premises, the Building, the parking facility (if any), the Property, the Project and the appurtenances. Capitalized terms have the same meaning as defined in the Lease.
 
1.	Sidewalks, doorways, vestibules, halls, stairways and other similar areas shall not be obstructed by Tenant or used by Tenant for any purpose other than ingress and egress to and from the Premises. No rubbish, litter, trash, or material shall be placed, emptied, or thrown in those areas. At no time shall Tenant permit Tenant’s employees to loiter in Common Areas or elsewhere about the Building, Property or Project.	
 
2.	Plumbing fixtures and appliances shall be used only for the purposes for which designed, and no sweepings, rubbish, rags or other unsuitable material shall be thrown or placed in the fixtures or appliances. Damage resulting to fixtures or appliances by Tenant, its agents, employees or invitees, shall be paid for by Tenant, and Landlord shall not be responsible for the damage.	
 
3.	No signs, advertisements or notices shall be painted or affixed to windows, doors or other parts of the Building or Project, except those of such color, size, style and in such places as are first approved in writing by Landlord. All tenant identification and suite numbers at the entrance to the Premises shall be installed by Landlord, at Tenant’s cost and expense, using the standard graphics for the Building. Except in connection with the hanging of lightweight pictures and wall decorations, no nails, hooks or screws shall be inserted into any part of the Premises, Building or Project except by the Building maintenance personnel.	
 
4.	Tenant shall not place any lock(s) on any door in the Premises, Building or Project without Landlord’s prior written consent and Landlord shall have the right to retain at all times and to use keys to all locks within and into the Premises. A reasonable number of keys to the locks on the entry doors in the Premises shall be furnished by Landlord to Tenant at Tenant’s cost, and Tenant shall not make any duplicate keys. All keys shall be returned to Landlord at the expiration or early termination of this Lease.	
 
5.	All contractors, contractor’s representatives and installation technicians performing work in the Building or Project shall be subject to Landlord’s prior approval and shall be required to comply with Landlord’s standard rules, regulations, policies and procedures, which may be revised from time to time.	
 
6.	Movement in or out of the Building or the Project of furniture or office equipment, or dispatch or receipt by Tenant of merchandise or materials requiring the use of elevators, stairways, lobby areas or loading dock areas, shall be restricted to hours designated by Landlord. Tenant shall obtain Landlord’s prior approval by providing a detailed listing of the activity. If approved by Landlord, the activity shall be under the supervision of Landlord and performed in the manner required by Landlord. Tenant shall assume all risk for damage to articles moved and injury to any persons resulting from the activity. If equipment, property, or personnel of Landlord or of any other party is damaged or injured as a result of or in connection with the activity, Tenant shall be solely liable for any resulting damage or loss.	
 
7.	Landlord shall have the right to approve the weight, size, or location of heavy equipment or articles in and about the Premises. Damage to the Building or the Project by the installation, maintenance, operation, existence or removal of Tenant’s Property shall be repaired at Tenant’s sole expense.	
 
B-1

8.	Tenant shall not: (1) make or permit any improper, objectionable or unpleasant noises or odors in the Building or the Project, or otherwise interfere in any way with other tenants or persons having business with them; (2) solicit business or distribute, or cause to be distributed, in any portion of the Building or the Project, handbills, promotional materials or other advertising; or (3) conduct or permit other activities in the Building or the Project that might, in Landlord’s sole opinion, constitute a nuisance.	
 
9.	No animals, except those assisting handicapped persons, shall be brought into the Building or the Project or kept in or about the Premises.	
 
10.	No inflammable, explosive or dangerous fluids or substances shall be used or kept by Tenant in the Premises, the Building, the Property or about the Project. Tenant shall not, without Landlord’s prior written consent, use, store, install, spill, remove, release or dispose of, within or about the Premises or any other portion of the Building, the Property or the Project, any asbestos-containing materials or any solid, liquid or gaseous material now or subsequently considered toxic or hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any other applicable environmental Law which may now or later be in effect. Tenant shall comply with all Laws pertaining to and governing the use of these materials by Tenant, and shall remain solely liable for the costs of abatement and removal.	
 
11.	Tenant shall not use or occupy the Premises in any manner or for any purpose which might injure the reputation or impair the present or future value of the Premises, the Building or the Project. Tenant shall not use, or permit any part of the Premises to be used, for lodging, sleeping or for any illegal purpose.	
 
12.	Tenant shall not take any action which would violate Landlord’s labor contracts or which would cause a work stoppage, picketing, labor disruption or dispute, or interfere with Landlord’s or any other tenant’s or occupant’s business or with the rights and privileges of any person lawfully in the Building or the Project (“Labor Disruption”). Tenant shall take the actions necessary to resolve the Labor Disruption, and shall have pickets removed and, at the request of Landlord, immediately terminate any work in the Premises that gave rise to the Labor Disruption, until Landlord gives its written consent for the work to resume. Tenant shall have no claim for damages against Landlord or any of the Landlord Related Parties, nor shall the Commencement Date of the Term be extended as a result of the above actions.	
 
13.	Tenant shall not install, operate or maintain in the Premises or in any other area of the Building or the Project, electrical equipment that would overload the electrical system beyond its capacity for proper, efficient and safe operation as determined solely by Landlord. Tenant shall not furnish cooling or heating to the Premises, including, without limitation, the use of electric or gas heating devices, without Landlord’s prior written consent. Tenant shall not use more than its proportionate share of telephone lines and other telecommunication facilities available to service the Building or the Project.	
 
14.	Tenant shall not operate or permit to be operated a coin or token operated vending machine or similar device (including, without limitation, telephones, lockers, toilets, scales, amusement devices and machines for sale of beverages, foods, candy, cigarettes and other goods), except for machines for the exclusive use of Tenant’s employees, and then only if the operation does not violate the lease of any other tenant in the Building or the Project.	
 
B-2

15.	Except as provided in the Lease, bicycles and other vehicles are not permitted inside the Building or on the walkways outside the Building, except in areas designated by Landlord.	
 
16.	Landlord may from time to time adopt systems and procedures for the security and safety of the Building, the Property, and the Project, its occupants, entry, use and contents. Tenant, its agents, employees, contractors, guests and invitees shall comply with Landlord’s systems and procedures.	
 
17.	Landlord shall have the right to prohibit the use of the name of the Building or the Project or any other publicity by Tenant that in Landlord’s sole opinion may impair the reputation of the Building or the Project or their desirability. Upon written notice from Landlord, Tenant shall refrain from and discontinue such publicity immediately.	
 
18.	Tenant shall not canvass, solicit or peddle in or about the Building, the Property or the Project.	
 
19.	Neither Tenant nor its agents, employees, contractors, guests or invitees shall smoke or permit smoking in the Common Areas or the Exterior Common Areas, unless the Common Areas or the Exterior Common Areas have been declared a designated smoking area by Landlord, nor shall the above parties allow smoke from the Premises to emanate into the Common Areas or any other part of the Building or the Project. Landlord shall have the right to designate the Building and/or the Project (including the Premises) as a non-smoking building.	
 
20.	Landlord shall have the right to designate and approve standard window coverings for the Premises and to establish rules to assure that the Building presents a uniform exterior appearance.	
 
21.	Deliveries to and from the Premises shall be made only at the times, in the areas and through the entrances and exits designated by Landlord. Tenant shall not make deliveries to or from the Premises in a manner that might interfere with the use by any other tenant of its premises or of the Common Areas, any pedestrian use, or any use which is inconsistent with good business practice.	
 
22.	Tenant shall provide adequate waste and rubbish receptacles for the Premises and shall not allow or engage in any illegal dumping or disposal of waste materials, chemicals, or substances in waste receptacles, storm drains or the sinks/drains of the Premises or other parts of the Property.	
 
B-3

EXHIBIT C
WORK LETTER
 
(1)	This Exhibit C shall set forth the obligations of Landlord and Tenant with respect to the improvements to be performed in the Premises for Tenant’s use. All improvements described in this Exhibit C to be constructed in and upon the Premises by Landlord are hereinafter referred to as the “Tenant Alterations.” It is agreed that construction of the Tenant Alterations will be completed at Tenant’s sole cost and expense using methods, materials, and finishes that have been approved by Landlord. Notwithstanding the foregoing, Landlord and Tenant acknowledge that Plans (hereinafter defined) for the Tenant Alterations have not yet been prepared and, therefore, it is impossible to determine the exact cost of the Tenant Alterations at this time. Landlord and Tenant agree that Landlord shall have no obligation to pay for any portion of the cost of Tenant Alterations (including the cost of preparing Plans, obtaining permits, and other related costs) and that Tenant shall be solely responsible for the cost of Tenant Alterations, plus any applicable state sales or use tax, if any. Simultaneously with Tenant’s execution of the Lease, Tenant shall deposit with Landlord the sum of $50,000.00 (the “Pricing Documents Deposit”), to be applied by Landlord to the Tenant Alterations Costs (as defined below) required to be reimbursed by Tenant hereunder. Landlord shall have no obligation to pay interest on the Pricing Documents Deposit, and Landlord may commingle the Pricing Documents Deposit with its own funds. Landlord shall enter into a direct contract for the Tenant Alterations with a general contractor selected by Landlord. In addition, Landlord shall have the right to select and/or approve of any subcontractors used in connection with the Tenant Alterations.	
 
(2)	Tenant shall be solely responsible for the timely preparation and submission to Landlord of the programming information and scope of work so that Landlord may arrange to have the final architectural, electrical and mechanical construction drawings, plans and specifications (the “Plans”) necessary to construct the Tenant Alterations, which Plans shall be subject to reasonable approval by Landlord and Landlord’s architect and engineers and shall comply with their requirements to avoid aesthetic or other conflicts with the design and function of the balance of the Project. Tenant shall be responsible for all elements of the design of the Plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of the Plans shall in no event relieve Tenant of the responsibility for such design. Landlord’s architect will prepare the Plans necessary for such construction at Tenant’s cost. Whether or not the layout and Plans are prepared with the help (in whole or in part) of Landlord’s architect, Tenant agrees to remain solely responsible for the timely preparation and submission of the Plans and for all elements of the design of such Plans and for all costs related thereto. Tenant has assured itself by direct communication with the architect and engineers (Landlord’s or its own, as the case may be) that the final approved Plans can be delivered to Landlord on or before September 16, 2013 (the “Plans Due Date”), provided that Tenant promptly furnishes complete information concerning its requirements to said architect and engineers as and when requested by them. Tenant covenants and agrees to cause said final, approved Plans to be delivered to Landlord on or before said Plans Due Date and to devote such time as may be necessary in consultation with said architect and engineers to enable them to complete and submit the Plans within the required time limit. Time is of the essence in respect of preparation and submission of Plans by Tenant. If the Plans are not fully completed and approved by the Plans Due Date, Tenant shall be responsible for any delay caused thereby. (The word “architect” as used in this Exhibit C shall include an interior designer or space planner.)	
 
C-1

(3)	Landlord, prior to commencing any construction of Tenant Alterations, shall submit to Tenant a written estimate setting forth the anticipated cost of the Tenant Alterations, including but not limited to labor and materials, contractor’s fees and permit fees, and Landlord’s construction management fee equal to five percent (5%) of the total construction costs (collectively, the “Tenant Alterations Costs”). Within three (3) business days thereafter, Tenant shall either notify Landlord in writing of its approval of the cost estimate, or specify its objections thereto and any desired changes to the proposed Tenant Alterations. If Tenant notifies Landlord of such objections and desired changes, Tenant shall work with Landlord to reach a mutually acceptable alternative cost estimate.	
 
(4)	Tenant shall pay to Landlord such Tenant Alterations Costs, plus any applicable state sales or use tax thereon, upon demand. Without limiting the foregoing, Tenant shall pay estimated Tenant Alterations Costs prior to Landlord commencing construction, based on bids received from the general contractor (and any subsequent increases in costs shall be paid by Tenant pursuant to the terms of the first sentence of this Section). The statements of costs submitted to Landlord by Landlord’s contractors shall be conclusive for purposes of determining the actual cost of the items described therein. The amounts payable by Tenant hereunder constitute rent payable pursuant to the Lease, and the failure to timely pay same constitutes an event of default under the Lease.	
 
(5)	If Tenant shall request any change, addition or alteration in any of the Plans after approval by Landlord, Landlord shall have such revisions to the drawings prepared, and Tenant shall reimburse Landlord for the cost thereof, plus any applicable state sales or use tax thereon, upon demand. Promptly upon completion of the revisions, Landlord shall notify Tenant in writing of the increased cost, if any, which will be chargeable to Tenant by reason of such change, addition or deletion. Tenant, within one (1) business day, shall notify Landlord in writing whether it desires to proceed with such change, addition or deletion. In the absence of such written authorization, Landlord shall have the option to continue work on the Premises disregarding the requested change, addition or alteration, or Landlord may elect to discontinue work on the Premises until it receives notice of Tenant’s decision, in which event Tenant shall be responsible for any delay in completion of the Premises resulting therefrom. If such revisions result in a higher estimate of the cost of construction and/or higher actual construction costs which exceed the estimated Tenant Alterations Costs, such increased estimate or costs shall be deemed a part of the Tenant Alterations Costs pursuant to Section 4 hereof and Tenant shall pay such additional Tenant Alterations Costs, plus any applicable state sales or use tax thereon, upon demand.	
 
(6)	Following approval of the Plans and the payment by Tenant of the Tenant Alterations Costs, Landlord shall cause the Tenant Alterations to be constructed substantially in accordance with the approved Plans. Landlord shall notify Tenant of substantial completion of the Tenant Alterations.	
 
(7)	Tenant acknowledges that the Tenant Alterations may be performed by Landlord in the Premises during normal business hours for the Building subsequent to the Commencement Date. Landlord and Tenant agree to cooperate with each other in order to enable the Tenant Alterations to be performed in a timely manner and with as little inconvenience to the operation of Tenant’s business as is reasonably possible. Notwithstanding anything herein to the contrary, any delay in the completion of the Tenant Alterations or inconvenience suffered by Tenant during the performance of the Tenant Alterations shall not delay the Commencement Date, nor shall it subject Landlord to any liability for any loss or damage resulting therefrom or entitle Tenant to any credit, abatement or adjustment of rent or other sums payable under the Lease.	
 
C-2

(8)	This Exhibit C shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease.	
 
C-3

SUBLEASE
THIS SUBLEASE (this “ Sublease ”), made as of the      day of June, 2013 (the “ Effective Date ”), between AKAMAI TECHNOLOGIES, INC., a Delaware corporation having an office at 8 Cambridge Center, Cambridge, Massachusetts 02142 (“ Sublandlord ”), and WOODMAN LABS, INC., a Delaware corporation having an office at 3000 Clearview Way, San Mateo, CA 94402 (“ Subtenant ”).
W I T N E S S E T H :
WHEREAS, Sublandlord has entered into that certain Office Lease Agreement dated as of July 15, 2010 (the “ Master Lease ”), with Locon San Mateo, LLC, a Delaware limited liability company (“ Master Landlord ”), pursuant to which Sublandlord leases from Master Landlord certain space (the “ Master Lease Premises ”) known as Suite 300 in the building located at 3155 Clearview Way in San Mateo, California commonly known as Building A (the “ Sublease Premises ”), containing approximately 17,364 rentable square feet and shown on Exhibit A attached hereto; and
WHEREAS, Subtenant desires to sublease from Sublandlord the Sublease Premises under the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Sublandlord and Subtenant agree as follows:
1. Sublease Premises . Sublandlord hereby subleases to Subtenant, and Subtenant subleases from Sublandlord, the Sublease Premises, upon the terms, conditions, covenants and agreements hereinafter set forth in this Sublease.
2. Term . The term of this Sublease (the “ Term ”) (a) shall commence on the date (the “ Commencement Date ”) which is the later of (i) October 1, 2013, (ii) the date on which Sublandlord receives the Master Landlord Consent (as such term is defined in Paragraph 6 below), and (iii) the date on which Sublandlord tenders possession of the Sublease Premises to Subtenant, and (b) shall end at the close of business on October 15, 2018 (the “ Expiration Date ”) or upon such earlier or later date upon which the term of this Sublease may expire or be terminated pursuant to the terms and provisions of this Sublease or pursuant to law. Notwithstanding the foregoing, the Expiration Date shall be automatically extended to October 31, 2018 in the event that at least thirty (30) days prior to the Expiration Date Subtenant shall have provided Sublandlord with written notice confirming that Subtenant has entered into an agreement directly with Master Landlord to lease the Sublease Premises from and after the Expiration Date, which notice shall include written confirmation from both Master Landlord and Subtenant in form and substance satisfactory to Sublandlord that, effective as of October 15, 2018, Sublandlord shall be deemed to have satisfied all of its obligations under the Master Lease relative to the surrender of the Sublease Premises to Master Landlord, and that Subtenant shall be solely responsible for such surrender to Master Landlord in accordance with the terms of its lease with Master Landlord, including without limitation the removal and restoration of any and all personal property, furniture, fixtures and equipment located therein.
 
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3. Master Lease .
(a) The parties agree that this Sublease shall be subject and subordinate to all of the terms, covenants, conditions and provisions of the Master Lease. A redacted copy of the Master Lease has been delivered to and examined by Subtenant and is attached hereto as Exhibit B .
(b) The terms, covenants, conditions and provisions contained in the Master Lease (including but not limited to the remedies provided thereunder) are incorporated herein by reference, and shall, as between Sublandlord and Subtenant, constitute the terms, covenants, conditions and provisions of this Sublease to the extent consistent with the terms of this Sublease (the “ Incorporated Provisions ”), as if all references to the landlord thereunder were references to Sublandlord, as if all references to the tenant thereunder were references to Subtenant and as if all references to the Premises thereunder were references to the Sublease Premises; provided, however, that:
(i) all references in the Incorporated Provisions to (1) “ Base Rent ” shall refer to the Base Rent payable hereunder, (2) “ Additional Rent ” shall refer to all charges and other sums payable by Subtenant as set forth in this Sublease, in addition to Base Rent, including, without limitation, Expenses and Taxes payable under the Master Lease, (3) “Commencement Date” shall refer to the Commencement Date hereunder, and (4) “Term” shall refer to the Term hereunder;
(ii) the following provisions of the Master Lease shall not be incorporated into this Sublease: (a) Sections 1C, 1E, 1F, 1G, 1I, 1M, 3, 4C, 5 (but only paragraphs 3, 4, and 5 of such Section), 6, 31E, 33, 36 and Exhibit D and Exhibit H of the Master Lease, (b) any provisions requiring or referring to Landlord Work, (c) any provision of the Master Lease allowing or purporting to allow any rent concessions or abatements or construction allowance, except as may be specifically provided herein, and (d) any provision of the Master Lease conferring upon the tenant thereunder any expansion rights, extension rights, rights of first offer or first refusal, except as may be specifically provided herein;
(iii) Subtenant agrees to faithfully observe and perform the terms, covenants, conditions and provisions on its part to be observed and performed hereunder. Subtenant agrees not to do anything in or with respect to the Premises or omit to do anything which would constitute a breach or violation of any of the terms of the Master Lease. Subtenant agrees to indemnify and hold Sublandlord harmless from any breach of the Master Lease so caused by Subtenant. Sublandlord agrees to indemnify and hold Subtenant harmless from any breach of the Master Lease by Sublandlord. The foregoing indemnifications shall survive the expiration or earlier termination of this Sublease. Sublandlord and Subtenant hereunder shall have the respective remedies of landlord and tenant under the Master Lease. Nothing contained in this Sublease shall be construed to create privity of estate or of contract between Subtenant and Master Landlord.
(c) Subtenant represents and warrants to Sublandlord that (i) Subtenant is a duly organized, validly existing corporation in good standing under the laws of the State of Delaware; (ii) Subtenant has the legal power, rights and authority to enter into this Sublease and
 
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to consummate the transactions contemplated hereby; (iii) the individuals executing this Sublease on behalf of Subtenant have the power, right and authority to bind Subtenant; (iv) subject to the Master Landlord Consent, this Sublease will be valid and legally binding upon Subtenant and enforceable in accordance with its terms; and (v) there has not been filed by or against Sublandlord a petition in bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or arrangement under the bankruptcy laws of the United States or any state thereof, or any other action brought pursuant to such bankruptcy laws with respect to Subtenant.
(d) Except to the extent caused by the negligence or willful misconduct of Sublandlord, Subtenant will indemnify, defend and hold Sublandlord harmless from and against all loss, costs, damages, expenses and liability, including, but not limited to, reasonable attorneys’ fees, which Sublandlord may incur by reason of any third party claims against Sublandlord arising out of injuries to person or property occurring in, on or about the Sublease Premises arising by reason of (i) any breach or default hereunder on Subtenant’s part; (ii) any work done in or to the Sublease Premises (A) by Subtenant or its agents or contractors, (B) with the consent of Subtenant (unless performed by or for Sublandlord or Master Landlord) or (C) at the request of Subtenant; (iii) any act, omission, negligence or other fault on the part of Subtenant, or any of Subtenant’s agents, invitees, vendors, customers, contractors, subtenants, licensees or employees (collectively, “ Subtenant Parties ”); or (iv) any accident, injury or damage whatsoever to any person or entity occurring during the Term in the Sublease Premises (except to the extent caused by the willful acts or negligence of Sublandlord or its agents, invitees, vendors, customers, contractors, subtenants (other than Subtenant), licensees or employees). The foregoing indemnity shall be construed to supplement Subtenant’s obligations in the Master Lease, as incorporated in and made a part of this Sublease. Subtenant shall in no case have any rights in respect of the Sublease Premises greater than Sublandlord’s rights under the Master Lease. Notwithstanding any other provision of this Sublease, Sublandlord, as sublandlord under this Sublease, shall have the benefit of all rights, waivers, remedies and limitations of liability enjoyed by Master Landlord as the landlord under the Master Lease, but (i) except as expressly set forth herein, Sublandlord shall have no obligation under this Sublease to perform the obligations of Master Landlord, as landlord under the Master Lease, including, without limitation, any obligation to provide services or maintain insurance, (ii) Sublandlord shall not be bound by any representations or warranties of the Master Landlord under the Master Lease; (iii) in any instance where the consent of Master Landlord is required under the terms of the Master Lease, the consent of Master Landlord shall be required hereunder and, unless as otherwise expressly provided hereunder, the consent of Sublandlord shall also be required; and (iv) Sublandlord shall not be liable to Subtenant for any failure or delay in Master Landlord’s performance of its obligations, as landlord under the Master Lease.
(e) Sublandlord will indemnify, defend and hold Subtenant harmless from and against any loss, cost, damage, expense and liability, including, but not limited to, reasonable attorneys’ fees which Subtenant may incur by reason of damage to personal property or injury to any person or persons to the extent arising by reason of (i) any negligence of Sublandlord, or (ii) any willful misconduct of Sublandlord.
(f) Sublandlord represents and warrants to Subtenant that (i) as of the Commencement Date, Sublandlord is the tenant under the Master Lease and has the right to enter
 
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into this Sublease subject to obtaining the Master Landlord Consent; (ii) the Master Lease is in force and effect and has not been modified or amended; (iii) a true and complete copy of the Master Lease and all amendments thereof (except for certain redactions which do not adversely affect Subtenant’s obligations or rights under this Sublease) are attached hereto as Exhibit B and there exist no other agreements between Master Landlord and Sublandlord governing the use or occupancy of the Sublease Premises; (iv) to the actual knowledge of Sublandlord, Sublandlord has neither received from, nor sent to Master Landlord, written notice of any default under the Master Lease which remains outstanding beyond the expiration of the applicable grace period set forth therein; (v) there are no subleases of any part of the Sublease Premises entered into by Sublandlord which are currently in effect; (vi) Sublandlord is a duly organized, validly existing corporation in good standing under the laws of the State of Delaware; (vii) subject to obtaining the Master Landlord Consent, Sublandlord has the legal power, rights and authority to enter into this Sublease and to consummate the transactions contemplated hereby; (viii) the individuals executing this Sublease on behalf of Sublandlord have the power, right and authority to bind Sublandlord; (ix) subject to obtaining the Master Landlord Consent, this Sublease will be valid and legally binding upon Sublandlord and enforceable in accordance with its terms; and (x) there has not been filed by or against Sublandlord a petition in bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or arrangement under the bankruptcy laws of the United States or any state thereof, or any other action brought pursuant to such bankruptcy laws with respect to Sublandlord. Sublandlord shall not voluntarily terminate the Master Lease except as otherwise expressly provided herein. Sublandlord shall promptly deliver (but in no event more than three days after receipt) to Subtenant a copy of any notice of default or termination or any notice relating to any casualty or taking, given by Sublandlord to Master Landlord or received by Sublandlord from Master Landlord.
(g) All capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Master Lease.
(h) No member, manager, partner, director, stockholder or employee of Sublandlord shall ever be personally liable for a claim of breach of this Sublease.
(i) This Paragraph 3 shall survive any termination or expiration of this Sublease.
 
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4. Base Rent .
(a) Commencing on the Commencement Date (the “ Rent Commencement Date ”), Subtenant shall pay Base Rent during the Term at the rate set forth in the following chart:

Sublease Term	  	Annual Base Rent	 	  	Monthly Base
Rent	 	  	Base Rent per
Rentable Square
Foot per Month	 	
				
Commencement Date through October 31, 2013	  	$	312,552.00	  	  	$	26,046.00	  	  	$	1.50	  	
				
November 1, 2013 through October 31, 2014	  	$	329,221.44	  	  	$	27,435.12	  	  	$	1.58	  	
				
November 1, 2014 through October 31, 2015	  	$	345,890.88	  	  	$	28,824.24	  	  	$	1.66	  	
				
November 1, 2015 through October 31, 2016	  	$	362,560.32	  	  	$	30,213.36	  	  	$	1.74	  	
				
November 1, 2016 through October 31, 2017	  	$	379,229.76	  	  	$	31,602.48	  	  	$	1.82	  	
				
November 1, 2017 through October 15, 2018	  	$	39,982.88	  	  	$	33,165.24	  	  	$	1.91	  	
(b) Base Rent shall be payable in equal monthly installments in advance on the first day of each month during the Term commencing on the Rent Commencement Date.
(c) In addition to the Base Rent, Subtenant shall be responsible for the payment of any and all costs and expenses payable by Sublandlord under the Master Lease with respect to the Sublease Premises that accrue for periods on or subsequent to the Rent Commencement Date, including, without limitation, Tenant’s Share of Expenses and Taxes payable by Sublandlord under the Master Lease.
5. Specific Covenants of the Parties . Notwithstanding anything to the contrary contained herein or in the Master Lease, the parties agree as follow:
(a) Subtenant’s Use of Furniture . For the period commencing on the Commencement Date and continuing until the Expiration Date, Subtenant shall have the right, subject to the terms and conditions hereof, to use the furniture, fixtures and equipment currently located within the Sublease Premises and more particularly described in Exhibit C attached hereto (the “ Furniture ”). During the Term until the Expiration Date, (i) so long as Subtenant is not in default beyond any applicable cure periods under the Sublease, Subtenant may use the Furniture in the Sublease Premises in the ordinary course of Subtenant’s business, but shall not cause, suffer or permit waste of the Furniture and may not remove any of the Furniture from the Sublease Premises, (ii) Subtenant shall keep the Furniture in reasonably good condition, subject to normal wear and tear and damage by casualty, and (iii) Subtenant will bear the full risk of loss in respect of the Furniture. Subtenant shall maintain an all-risk property insurance policy at Subtenant’s sole expense at replacement cost on the Furniture, with Sublandlord and Master
 
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Landlord being named as loss payees until the Expiration Date . Subtenant agrees that (x) Subtenant has fully inspected and acknowledged that the Furniture is in good condition, repair and working order, and (y) Subtenant is satisfied with and has accepted the Furniture “AS IS, WHERE IS AND WITH ALL FAULTS.” SUBLANDLORD MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE FURNITURE, EXPRESS OF IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTIABILITY OR FITNESS FOR A PARTICULAR PURPOSE. On the Expiration Date, provided Subtenant is not then in default hereunder beyond any applicable cure periods, ownership of the Furniture shall be deemed to automatically transfer from the Sublandlord to Subtenant without representation or warranty of any kind from Sublandlord and without the need for any further documentation or instrumentation.
(b) Payment of Base Rent and Additional Rent .
(i) The rent reserved under this Sublease shall consist of the Base Rent and Expenses and Taxes described in Paragraph 4 above and any other amounts payable by Subtenant hereunder, including without limitation any amounts payable pursuant to Paragraph 10(d) hereof (collectively with the Expenses and Taxes, the “ Additional Rent ”). Base Rent and Additional Rent payable by Subtenant to Sublandlord hereunder shall be paid to Sublandlord at the address set forth above, Attention: Real Estate Department or at such other place or places as Sublandlord may designate to Subtenant in writing, in lawful money of the United States, by good and sufficient check (subject to collection) or at Sublandlord’s option by wire transfer of immediately available funds to the account designated by Sublandlord.
(ii) Subtenant does hereby covenant and agree to (a) pay the Base Rent and Additional Rent to Sublandlord hereunder as and when the same shall become due and payable as herein provided, and except as otherwise specifically provided herein, without demand therefor and without any setoff or deduction whatsoever, and (b) keep, observe and perform, and to permit no violation of, each and every of the covenants, agreements, terms, provisions and conditions herein contained on the part of Subtenant to be kept, observed or performed.
(iii) If Subtenant shall fail to pay Base Rent or Additional Rent when the same is due and payable, Subtenant shall pay a late payment charge equal to five percent (5%) percent of the amount due. Such amount shall be payable as Additional Rent hereunder, and shall be payable in addition to any interest payable on such late payment of Base Rent or Additional Rent or other charges, per the Master Lease.
(c) Use . Subtenant may use and occupy the Sublease Premises only for general office use in a manner consistent with the terms of the Master Lease, provided that such use shall in all events be in compliance with all legal requirements, and for no other purpose.
(d) Condition of Sublease Premises . Sublandlord and Subtenant acknowledge and agree that Subtenant is leasing and does hereby accept the Sublease Premises in their clean, broom-swept and otherwise “AS IS” condition on the Commencement Date with the Furniture in place. Sublandlord shall have no obligation to perform any work to the Sublease Premises or to any part of the Building or to prepare the Sublease Premises for occupancy by
 
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Subtenant. Sublandlord makes no representation or warranty regarding the condition of the Sublease Premises or the Building or title to the Sublease Premises, except as expressly set forth herein and that Sublandlord is the tenant under the Master Lease as of the Commencement Date. In making and executing this Sublease, Subtenant has not relied upon or been induced by any statements or representations of any persons, other than those, if any, set forth expressly in this Sublease in respect of the physical condition of the Sublease Premises or the Building or of any other matter affecting the Sublease Premises or this transaction which might be pertinent in considering the leasing of said Sublease Premises or the execution of this Sublease. Subtenant has, on the contrary, relied solely on such representations, if any, as are expressly made herein and on such investigations, examinations and inspections as Subtenant has chosen to make or have made. Subtenant acknowledges that Sublandlord has afforded Subtenant the opportunity for full and complete investigations, examinations, and inspections, including without limitation of the Sublease Premises and the Building.
(e) Notices . Notices and other communications hereunder shall be in writing and shall be given or made (i) by nationally recognized overnight courier service providing for overnight delivery (e.g. Federal Express, DHL), in which case notices shall be deemed given one (1) business day after deposit with such overnight courier, or (ii) by United States certified or registered mail with return receipt requested provided the sender shall obtain a written receipt for such delivery, in which case notices shall be deemed given three (3) business days after deposit with the United States postal service, (iii) in person, in which case notices shall be deemed given when received, or (iv) by facsimile transmission, provided the sender shall obtain a written receipt for such delivery. All notices to Sublandlord shall be given to it at its office at Eight Cambridge Center, Cambridge, Massachusetts 02142 to the attention of Vice President of Corporate Services and to the Attention of General Counsel, Fax No. (617) 444-3695 with copy to Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02109, Attention: Sean T. Boulger, Esq., Fax No.: (617) 526-5000. All notices to Subtenant shall be sent to it at 3000 Clearview Way, San Mateo, CA 94402, Attention: Ernest Evans. Either party may change its address or addresses for notices by a written notice to the other party. All payments to be made by Subtenant to Sublandlord shall be delivered to Sublandlord at its address set forth above or to such other address as Sublandlord may hereafter designate in a written notice given under this paragraph.
(f) Time Limits . The time limits provided in the Master Lease for the giving of notices, making demands, performance of any act, condition or covenant, or the exercise of any right, remedy or option, are changed for the purposes of this Sublease, by lengthening or shortening the same in each instance by three (3) days (except that if the time limit provided in the Master Lease for the giving of any notice, making any demand, performing any act, condition or covenant or exercising any right shall be seven (7) days or less, then such time limit shall be changed by lengthening or shortening the same by two (2) days provided that in no event will the time limit given to Subtenant be less than four (4) days), as appropriate, so that notices may be given, demands made, or any act, condition or covenant performed, or any right, remedy or option hereunder exercised, by Sublandlord or Subtenant, as the case may be (and each party covenants that it will do so) within the time limit relating thereto contained in the Master Lease.
 
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(g) Termination of Master Lease . If for any reason the term of the Master Lease is terminated or expires prior to the expiration date of this Sublease, this Sublease shall thereupon automatically be terminated.
(h) Casualty and Condemnation . If a fire or other casualty which damages the Sublease Premises occurs, and as a result of such fire or casualty Sublandlord, as tenant under the Master Lease, has the right to terminate the Master Lease pursuant to the terms thereof, then Subtenant may, at its election, terminate this Sublease by notice given to Sublandlord within fifteen (15) days following such casualty, in which event this Sublease will terminate on the date selected by Subtenant, which termination date will be not less than fifteen (15) days or more than forty-five (45) days after the date of such casualty. If the Sublease Premises, or such portion thereof as to render the balance (if reconstructed to the maximum extent practicable in the circumstances) unsuitable for Subtenant’s purposes, shall be taken by condemnation or right of eminent domain, Subtenant shall have the right to terminate this Sublease by giving notice to Sublandlord no later than fifteen (15) days after Subtenant has been deprived of possession, in which event this Sublease will terminate as of the fifteenth (15 th ) day after the date Subtenant is deprived of possession. If all or any portion of the Sublease Premises is damaged by fire or casualty or affected by any exercise of the power of eminent domain so as to render all or a portion of the Sublease Premises untenantable, and such portion is not actually used by Subtenant, and this Sublease is not terminated, a just proportion of Base Rent according to the extent of the untenantability of the Sublease Premises shall be abated from the date of casualty or taking until the Sublease Premises shall have been put substantially into proper condition for use and occupation; and in case of a taking which permanently reduces the Rentable Floor Area of the Sublease Premises, a just proportion of the Base Rent shall be abated for the remainder of the Term.
(i) Assignment and Subletting .
(i) Notwithstanding anything to the contrary contained in the Master Lease, except as otherwise expressly provided below, Subtenant shall not, voluntarily or involuntarily or by operation of law or otherwise, assign, transfer, mortgage, pledge or encumber this Sublease, or sublet all or any part of the Sublease Premises or permit or suffer any person or entity to use or occupy all or any part of the Sublease Premises without in each instance obtaining the prior written consent of Sublandlord and Master Landlord, which consent of Sublandlord may be granted or withheld in Sublandlord’s sole discretion. Any sale, assignment or transfer (whether by one or a series of related or unrelated transactions and whether voluntarily, involuntarily or by operation of law or otherwise) of fifty percent (50%) or more of the direct or indirect ownership interests in Subtenant shall be deemed an assignment of this Sublease requiring Sublandlord’s consent.
(ii) Notwithstanding anything contained in this Sublease to the contrary, Subtenant may assign this Sublease or sublet all or a portion of the Sublease Premises, without Sublandlord’s consent, to an Affiliate (as defined below), or in connection with a merger, consolidation or the sale of all or substantially all of the assets of Subtenant, provided that the proposed sublease or assignment shall be subject to, and shall comply in all respects with this Sublease and the Master Lease and Master Landlord consents.
 
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(iii) As used herein, the term “Affiliate” shall mean an entity which controls, is controlled by or is under common control with the entity in question, where the term “control” means ownership of more than fifty percent (50%) of the ownership interests in the entity in question and the ability to control the management and operation of the entity in question.
(j) Broker . Subtenant and Sublandlord each represents and warrants to the other that the indemnifying party did not negotiate through or communicate with any broker in connection with this transaction other than Cushman & Wakefield of California and Kidder Mathews (the “ Brokers ”), whose fees shall be paid by Sublandlord pursuant to a separate agreement. Subtenant agrees to indemnify, defend and hold Sublandlord harmless from and against any and all claims, loss, liability, costs and expenses (including, without limitation, reasonable counsel fees), resulting from any claims that may be made against Sublandlord by any broker or other person (other than the Brokers) claiming a commission, fee or other compensation by reason or of this transaction, if the same shall arise by, through or on account of any act of Subtenant or its representatives. Sublandlord agrees to indemnify, defend and hold Subtenant harmless from and against any and all claims, loss, liability, costs and expenses (including, without limitation, reasonable counsel fees), resulting from any claims that may be made against Subtenant by any broker or other person claiming a commission, fee or other compensation by reason or of this transaction, if the same shall arise by, through or on account of any act of Sublandlord or its representatives. The provisions of this clause (j) shall not be construed to be for the benefit of any third party.
(k) No Services by Sublandlord . Subtenant agrees and acknowledges that Sublandlord is not in control of the Sublease Premises or of any of the services or facilities that may be appurtenant to or supplied at the Sublease Premises, including, without limitation, electricity, heat, air conditioning, water, elevator service, repairs, maintenance, painting, or parking facilities. Sublandlord shall not be responsible for any failure or interruption, for any reason whatsoever, of any of such services or facilities to be provided by Master Landlord, and Subtenant agrees that no failure to furnish, or interruption of, any such services or facilities shall give rise to (i) an abatement, diminution or reduction of Subtenant’s obligations hereunder whether in whole or in part, (ii) any constructive eviction, whether in whole or in part, or (iii) any liability on the part of Sublandlord. If Subtenant shall require any service or utility in excess of those provided under the Master Lease at no cost or expense to the Sublandlord thereunder (other than Subtenant’s payment of electricity charges and the Operating Cost Excess), Subtenant shall pay all costs and expenses of same, as well as all costs and expenses incurred by Sublandlord in endeavoring to cause Master Landlord to provide same, together with a three percent (3%) administrative charge. Notwithstanding anything to the contrary contained in this Sublease, Sublandlord agrees to use commercially reasonable efforts at no cost or expense to Sublandlord to cause Master Landlord to perform its obligations under the Master Lease for the benefit of Subtenant, provided, however that Sublandlord shall have no obligation to undertake or prosecute any action or suit against Master Landlord. In the event that, upon an action or suit against Master Landlord or Subtenant’s behalf, then Subtenant shall deposit in advance with Sublandlord a reasonable amount to cover Sublandlord’s anticipated costs of such suit, as reasonably determined by Sublandlord.
 
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(l) Rent Abatement . Subtenant shall not be entitled to any rent abatement pursuant to the Master Lease, as incorporated herein by reference, unless and to the extent Sublandlord shall receive a rent abatement from Master Landlord pursuant to the Master Lease, as incorporated herein by reference, with respect to a portion of the Sublease Premises.
(m) Recordation . Neither this Sublease nor any notice thereof shall be recorded in any public office.
(n) Refusal by Master Landlord . Whenever pursuant to the terms of this Sublease or the Master Lease, Subtenant shall require the consent or approval of Master Landlord, and Subtenant delivers to Sublandlord a request that Master Landlord give such consent or approval, then Sublandlord agrees to deliver such request to Master Landlord promptly (but in any event within five (5) days) after its receipt by Sublandlord. If after such delivery of a request for Master Landlord to give its consent or approval, Master Landlord fails or refuses to give such consent or approval, then, regardless of whether the Master Lease provides that such consent or approval shall not be unreasonably withheld and/or delayed, (i) Sublandlord shall have no liability to Subtenant as a result thereof, and (ii) Sublandlord shall have no obligation to obtain such consent.
(o) Alterations .
(i) Subtenant shall make no alterations, installations, changes, renovations, additions, replacements or improvements (“ Alterations ”) in to or about the Sublease Premises without, in each instance (A) the prior written consent of Sublandlord and Master Landlord and (B) compliance with the terms and provisions of the Master Lease. All Alterations will be performed by contractors approved by Sublandlord, such approval not to be unreasonably withheld.
(ii) With respect to each Alteration, Subtenant shall be obligated to restore the Sublease Premises at the expiration or early termination of the Term to its condition prior to such Alteration unless (A) Sublandlord has no restoration obligation with respect to such Alteration pursuant to the Master Lease or (B) Master Landlord and Sublandlord agree in writing that Sublandlord will have no restoration obligation with respect to such Alteration.
(p) Security Deposit .
(i) Subtenant, at its option, shall deposit with Sublandlord on or before the date on which this Sublease is fully executed either cash security deposit or a “clean”, unconditional, irrevocable and transferable letter of credit or cash in the amount of Seventy Eight Thousand One Hundred Thirty Eight and 00/100ths Dollars ($78,138.00) (such letter of credit, as it may be renewed or replaced as provided herein, the “ Letter of Credit ”), in form and substance satisfactory to Sublandlord, issued by and drawn on a bank reasonably satisfactory to Sublandlord, for the account of Sublandlord, for a term of not less than one (1) year, as security for the faithful performance and observance by Subtenant of the terms, covenants, conditions and provisions of this Sublease, including, without limitation, the surrender of possession of the Sublease Premises to Sublandlord as herein provided. If Subtenant shall default beyond any applicable notice and/or grace period under any of the material terms, covenants or conditions of
 
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this Sublease, Sublandlord may present the Letter of Credit for payment in an amount equal to the reasonably estimated amount of the following items and apply the whole or any part of the proceeds thereof, as the case may be, (i) toward the payment of any Base Rent or Additional Rent or any other monetary obligation as to which Subtenant is in default, (ii) toward any sum which Sublandlord may expend or be required to expend by reason of Subtenant’s default in respect of any of the terms, covenants and conditions of this Sublease, including, without limitation, any damage, liability or expense (including, without limitation, reasonable attorneys’ fees and disbursements) incurred or suffered by Sublandlord, and (iii) toward any damage or deficiency incurred or suffered by Sublandlord in the reletting of the Sublease Premises, whether such damages or deficiency accrue or accrues before or after summary proceedings or other re-entry by Sublandlord. If Subtenant deposits cash with Landlord instead of the Letter of Credit, Sublandlord may access the cash in the same way it would have drawn on the Letter of Credit. If Sublandlord presents the Letter of Credit for payment, the proceeds thereof not applied as provided above shall be held as cash security. If Sublandlord applies or retains any part of the proceeds of the Letter of Credit or the cash security so deposited, as the case may be, Subtenant, within fifteen (15) days after demand, shall deposit with Sublandlord the amount so applied or retained so that Sublandlord shall have the full deposit on hand at all times during the Term. The Letter of Credit or the cash security, as the case may be, shall be returned to Subtenant within thirty (30) days after the expiration date of the Term and after delivery of possession of the Sublease Premises to Sublandlord in the condition required herein, provided that Subtenant does not then owe any monies or other obligations hereunder to Sublandlord in which latter event Sublandlord may retain sufficient funds to cover the reasonably estimated cost to cure uncured defaults. In the event of an assignment of the Master Lease and this Sublease by Sublandlord, (i) Sublandlord shall have the right to transfer the Letter of Credit or the cash security, as the case may be, to the assignee, and Subtenant shall cause, at no cost to Sublandlord, the bank which issued the Letter of Credit to issue an amendment to the Letter of Credit or issue a new Letter of Credit naming such assignee as the beneficiary thereunder and (ii) provided that the new sublandlord assumes in writing the obligations of Sublandlord with respect to the return of the security deposit, Sublandlord shall be released by Subtenant for all liability for the return of such Letter of Credit or cash security, as the case may be, and Subtenant shall look solely to the new sublandlord for the return of such Letter of Credit or cash security, as the case may be. The provisions hereof shall apply to every transfer or assignment of the Letter of Credit or security made to a new Sublandlord. Subtenant shall not assign or encumber or attempt to assign or encumber the monies deposited herein as security and neither Sublandlord nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Subtenant shall renew the Letter of Credit from time to time, at least thirty (30) days prior to the expiration thereof, and deliver to Sublandlord a new Letter of Credit or an endorsement to the Letter of Credit, and any other evidence required by Sublandlord that the Letter of Credit has been renewed for a period of at least one (1) year. The final expiration date of the Letter of Credit shall be no earlier than October 15, 2018. If Subtenant shall at any time fail to timely renew the Letter of Credit as aforesaid, Sublandlord may present the Letter of Credit for payment and retain the proceeds thereof as cash security in lieu of the Letter of Credit.
(q) Parking . Subject to the terms and provisions of the Master Lease, Subtenant shall have parking privileges for the use of fifty-one (51) parking spaces. Subtenant shall have no right to any reserved parking spaces.
 
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(r) Subordination . This Sublease and the term and estate hereby granted are and shall be subject and subordinate to (a) the lien of each mortgage which may now or at any time hereafter affect the Sublease Premises or Sublandlord’s interest therein, (b) the Master Lease and (c) all other matters to which the Master Lease is subject. The foregoing provision for the subordination of this Sublease and the term and estate hereby granted shall be self-operative and no further instrument shall be required to effect any such subordination; but Subtenant shall, however, upon request by Sublandlord, at any time or times, execute and deliver any and all reasonable instruments that may be necessary or proper to effect such subordination or to confirm or evidence the same. Sublandlord agrees that it will not voluntarily subordinate the Master Lease to the lien of any mortgage encumbering the Sublease Premises or to any ground lease affecting the Sublease Premises, unless required to do so pursuant to the Master Lease.
6. Master Landlord’s Approval . This Sublease shall have no effect until Master Landlord shall have delivered to Sublandlord its written consent to this Sublease (the “ Master Landlord Consent ”) in form and substance reasonably satisfactory to Sublandlord and Subtenant. Sublandlord agrees to use reasonable efforts (without, however, having to incur any cost, expense or liability) to obtain the Master Landlord Consent. Notwithstanding any provision of the Sublease to the contrary, if Sublandlord does not receive the Master Landlord Consent for any reason whatsoever on or before the date that is sixty (60) days after the date on which this Sublease is fully executed, then (a) Sublandlord shall not be obligated to take any further action to obtain the Master Landlord Consent and (b) upon Sublandlord’s or Subtenant’s written election this Sublease shall be deemed void and of no further effect.
7. Apportionment . If the Term does not commence on the first day of a month or end on the last day of a month, Base Rent and all other charges for such partial month(s) will be paid by Subtenant to Sublandlord at the applicable rate on a pro rata basis.
8. Amendment of Master Lease . Sublandlord shall have the right to modify or amend the Master Lease without the prior written consent of Subtenant, unless such modification or amendment shortens the term of the Master Lease (except as expressly set forth below), terminates this Sublease, reduces (except in a non-material manner) any rights or services to be provided to Subtenant under this Sublease, increases any financial obligation of Subtenant hereunder, increases (except in a non-material manner) any non-financial obligation of Subtenant hereunder, in which event Subtenant’s consent to such modification or amendment shall be required; and any reference in this Sublease to the Master Lease, shall mean the Master Lease as modified or amended from time to time.
9. Governing Law . Irrespective of the place of execution or performance, this Sublease shall be governed by and construed in accordance with the laws of the state in which the Sublease Premises are located.
10. Miscellaneous .
(a) Prior Understandings; Entire Agreement . All understandings and agreements heretofore had between the parties are merged in this Sublease and any other written agreement(s) made concurrently herewith, which alone fully and completely express the agreement of the parties. This Sublease contains a complete statement of all the agreements and
 
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arrangements between the parties with respect to its subject matter and cannot be changed or terminated orally. This Sublease shall be construed without any presumption against the party drafting this Sublease or causing the same to be drafted.
(b) Submission to Jurisdiction . Subtenant and Sublandlord each (i) irrevocably agrees that any suit, action or other legal proceeding arising out of or relating to this Sublease may be brought in the courts of the State of California or of the United States of America located in San Mateo County, California (ii) consents to the jurisdiction of each such court in any such suit, action or proceeding and (iii) waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.
(c) Captions . The captions in this instrument are used for convenience in finding the subject matters, and are not to be taken as part of this instrument, or to be used in determining the intent of the parties, or otherwise interpreting this Sublease.
(d) Sublandlord’s Cost and Expenses . If Subtenant shall be in default under this Sublease and such default shall remain uncured beyond the expiration of the applicable grace period set forth herein, all attorney’s fees and all other costs and expenses incurred by Sublandlord in enforcing Sublandlord’s rights hereunder or in collecting any Base Rent or Additional Rent hereunder shall be Additional Rent hereunder and shall be payable by Subtenant within thirty (30) days after written notice from Sublandlord.
(e) Subtenant’s Cost and Expenses . If Sublandlord shall be in default under this Sublease and such default shall remain uncured for thirty (30) days after written notice from Subtenant (provided that if such default cannot with reasonable diligence be cured within said 30 day period and Sublandlord is diligently pursuing to complete such cure such 30 day grace period shall be extended as long as Sublandlord is diligently proceeding to complete such cure), all attorney’s fees and all other costs and expenses incurred by Subtenant in enforcing Subtenant’s rights hereunder shall be payable by Sublandlord within thirty (30) days after written notice from Subtenant.
(f) Sublandlord’s Right . Sublandlord or Sublandlord’s agents shall have the right (but shall not be obligated) to enter the Sublease Premises in any emergency at any time and without notice (provided that Sublandlord shall give written notice as soon as is reasonably practicable after such emergency entry), and, at other times upon at least one (1) business day’s prior written notice during normal business hours on business days (and at Subtenant’s option accompanied by a representative of Subtenant), to examine or inspect the same and to make such repairs, replacements, alterations, improvements, or additions as Sublandlord may reasonably deem necessary or desirable to any portion of the Sublease Premises (which Sublandlord may elect to perform in the Sublease Premises following Subtenant’s failure to make repairs or perform any work which Subtenant is obligated to perform under this Sublease, or for the purpose of complying with laws, regulations and other directions of governmental authorities. Subtenant shall permit Sublandlord to use, repair, maintain and replace pipes, ducts, wires, conduits and appurtenant fixtures in and through the Sublease Premises and to erect or install new pipes, ducts, wires, conduits and appurtenant fixtures therein. Sublandlord may, during the progress of any work in the Sublease Premises, take all reasonably necessary materials and
 
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equipment into the Sublease Premises without the same constituting an eviction nor shall Subtenant be entitled to any abatement of rent while such work is in progress nor to any damages by reason of loss or interruption of business. If, after giving the notice, if any, required above, Subtenant is not present to open and permit an entry into the Sublease Premises, Sublandlord or Sublandlord’s agent may enter the same whenever such entry may be necessary or permissible by master key or in the event of emergency (after trying to give written or oral notice to Subtenant) forcibly and provided reasonable care is exercised to safeguard Subtenant’s property and such entry shall not render Sublease or its agent liable therefor, nor in any event shall the obligations of Subtenant hereunder be affected. The Sublandlord shall use commercially reasonable efforts to minimize the disruption to Subtenant’s normal business that results from the conduct of such activities.
(g) Successors and Assigns . This Sublease shall apply to all respective successors and permitted assigns of the parties hereto but this paragraph shall not be construed as a consent to any assignment or subletting by Subtenant.
(h) Cross-Default . Sublandlord and Subtenant acknowledge that they are simultaneously entering into a separate sublease for the premises known as “Building B” located at 3125 Clearview Way in San Mateo, California (the “ 3125 Sublease ”). In the event that Subtenant defaults beyond applicable notice and cure periods under the 3155 Sublease, such default shall also constitute a default under this Sublease, with respect to which default Sublandlord shall have all of the rights and remedies set forth herein.
(i) Notwithstanding anything to the contrary contained in this Sublease, in the event of any conflict with another provision of this Sublease, the provisions of this Paragraph 10 (i) shall take precedence and govern.
(i) Violations of Legal Requirements . Notwithstanding anything contained in this Sublease to the contrary, Subtenant shall not be liable to Sublandlord or responsible for the costs of correcting any violation of or noncompliance with applicable legal requirements with respect to the Premises if such violation or noncompliance exists on the Commencement Date or if such violation or noncompliance is not the result of an act or omission by Subtenant.
(ii) Sublandlord Alterations . Subtenant shall not be required to remove any alterations or additions performed by Sublandlord prior to the Commencement Date (“ Sublandlord Alterations ”) or to restore the Sublease Premises to its condition prior to the making of such Sublandlord Alterations unless Subtenant has extended the Expiration Date in accordance with Paragraph 2 above. If Sublandlord is required under the Master Lease to remove any Sublandlord Alterations performed prior to the Commencement Date and Subtenant has not extended the Expiration Date in accordance with Paragraph 2 above, Subtenant shall permit Sublandlord to enter the Sublease Premises for a reasonable period of time prior to the Expiration Date for the purpose of removing Sublandlord Alterations and restoring the Sublease Premises as required by the Master Lease.
(iii) No Master Lease Assumption . Subtenant is not assuming any obligations under the Master Lease(it being acknowledged and agreed by the parties that
 
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Subtenant is obligated to perform its obligations hereunder with respect to the Incorporated Provisions, as set forth in Section 3(b) above) and, for the avoidance of doubt, is not liable or responsible (legally, financially or otherwise) for any acts or omissions of Sublandlord as Tenant under the Master Lease or their consequences.
(Signatures on next page)
 
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IN WITNESS WHEREOF, this Sublease has been duly executed by Sublandlord and Subtenant as of the day and year first herein above written.

SUBLANDLORD:	
	
AKAMAI TECHNOLOGIES, INC.,
a Delaware corporation	
		
By:	 	/s/ Skip Hartwell	
	 	Name:	 	Skip Hartwell	
	 	Title:	 	VP, Corporate Services	
	
SUBTENANT:	
	
WOODMAN LABS, INC.,
a Delaware corporation	
		
By:	 	/s/ Kurt Amundson	
	 	Name:	 	Kurt Amundson	
	 	Title:	 	CFO	
List of Exhibits

Exhibit A	  	Floor Plan of Sublease Premises	
		
Exhibit B	  	Master Lease	
		
Exhibit C	  	Furniture Inventory	
 
16

EXECUTION
Exhibit A
Floor Plan of Sublease Premises
[Attached]

Exhibit B
Master Lease
[Attached]

 

SUBLEASE
THIS SUBLEASE (this “ Sublease ”), made as of the      day of June, 2013 (the “ Effective Date ”), between AKAMAI TECHNOLOGIES, INC., a Delaware corporation having an office at 8 Cambridge Center, Cambridge, Massachusetts 02142 (“ Sublandlord ”), and WOODMAN LABS, INC., a Delaware corporation having an office at 3000 Clearview Way, San Mateo, CA 94402 (“ Subtenant ”).
W I T N E S S E T H :
WHEREAS, Sublandlord has entered into that certain Office Lease Agreement dated as of March 31, 2008, as amended by that certain First Amendment to Office Lease dated as of July 24, 2008 as amended by that certain Second Amendment to Office Lease dated as of July 19, 2010, (as so amended, the “ Master Lease ”), with Locon San Mateo, LLC, a Delaware limited liability company (“ Master Landlord ”), pursuant to which Sublandlord leases from Master Landlord certain space (the “ Master Lease Premises ”) in the building located at 3125 Clearview Way in San Mateo, California commonly known as Building B (the “ Sublease Premises ”), containing approximately 66,945 rentable square feet and shown on Exhibit A attached hereto; and
WHEREAS, Subtenant desires to sublease from Sublandlord the Sublease Premises under the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Sublandlord and Subtenant agree as follows:
1. Sublease Premises . Sublandlord hereby subleases to Subtenant, and Subtenant subleases from Sublandlord, the Sublease Premises, upon the terms, conditions, covenants and agreements hereinafter set forth in this Sublease.
2. Term . The term of this Sublease (the “ Term ”) (a) shall commence on the date (the “ Commencement Date ”) which is the later of (i) April 1, 2014, (ii) the date on which Sublandlord receives the Master Landlord Consent (as such term is defined in Paragraph 6 below), and (iii) the date on which Sublandlord tenders possession of the Sublease Premises to Subtenant, and (b) shall end at the close of business on October 15, 2015 (the “ Expiration Date ”) or upon such earlier or later date upon which the term of this Sublease may expire or be terminated pursuant to the terms and provisions of this Sublease or pursuant to law. Notwithstanding the foregoing, the Expiration Date shall be automatically extended to October 31, 2015 in the event that at least thirty (30) days prior to the Expiration Date Subtenant shall have provided Sublandlord with written notice confirming that Subtenant has entered into an agreement directly with Master Landlord to lease the Sublease Premises from and after the Expiration Date, which notice shall include written confirmation from both Master Landlord and Subtenant in form and substance satisfactory to Sublandlord that, effective as of October 15, 2015, Sublandlord shall be deemed to have satisfied all of its obligations under the Master Lease relative to the surrender of the Sublease Premises to Master Landlord, and that Subtenant shall be solely responsible for such surrender to Master Landlord in accordance with the terms of its lease with Master Landlord, including without limitation the removal and restoration of any and all personal property, furniture, fixtures and equipment located therein.
 
1

3. Master Lease .
(a) The parties agree that this Sublease shall be subject and subordinate to all of the terms, covenants, conditions and provisions of the Master Lease. A redacted copy of the Master Lease has been delivered to and examined by Subtenant and is attached hereto as Exhibit B .
(b) The terms, covenants, conditions and provisions contained in the Master Lease (including but not limited to the remedies provided thereunder) are incorporated herein by reference, and shall, as between Sublandlord and Subtenant, constitute the terms, covenants, conditions and provisions of this Sublease to the extent consistent with the terms of this Sublease (the “ Incorporated Provisions ”), as if all references to the landlord thereunder were references to Sublandlord, as if all references to the tenant thereunder were references to Subtenant and as if all references to the Premises thereunder were references to the Sublease Premises; provided, however, that:
(i) all references in the Incorporated Provisions to (1) “Base Rent” shall refer to the Base Rent payable hereunder, (2) “Additional Rent” shall refer to all charges and other sums payable by Subtenant as set forth in this Sublease, in addition to Base Rent, including, without limitation, Expenses and Taxes payable under the Master Lease, (3) “Commencement Date” shall refer to the Commencement Date hereunder, and (4) “Term” shall refer to the Term hereunder;
(ii) the following provisions of the Master Lease shall not be incorporated into this Sublease: (a) Sections 1C, 1F, 1G, 1H, 1J, 1N, 3, 4C, 5 (but only paragraphs 3, 4, and 5 of such Section), 6, 31E, 33 and Exhibit D and Exhibit H of the Master Lease, and Sections 2, 6, 7, and 9.6 to the First Amendment to Office Lease, (b) any provisions requiring or referring to Landlord Work, (c) any provision of the Master Lease allowing or purporting to allow any rent concessions or abatements or construction allowance, except as may be specifically provided herein, and (d) any provision of the Master Lease conferring upon the tenant thereunder any expansion rights, extension rights, rights of first offer or first refusal, except as may be specifically provided herein;
(iii) Subtenant agrees to faithfully observe and perform the terms, covenants, conditions and provisions on its part to be observed and performed hereunder. Subtenant agrees not to do anything in or with respect to the Premises or omit to do anything which would constitute a breach or violation of any of the terms of the Master Lease. Subtenant agrees to indemnify and hold Sublandlord harmless from any breach of the Master Lease so caused by Subtenant. Sublandlord agrees to indemnify and hold Subtenant harmless from any breach of the Master Lease by Sublandlord. The foregoing indemnifications shall survive the expiration or earlier termination of this Sublease. Sublandlord and Subtenant hereunder shall have the respective remedies of landlord and tenant under the Master Lease. Nothing contained in this Sublease shall be construed to create privity of estate or of contract between Subtenant and Master Landlord.

(c) Subtenant represents and warrants to Sublandlord that (i) Subtenant is a duly organized, validly existing corporation in good standing under the laws of the State of Delaware; (ii) Subtenant has the legal power, rights and authority to enter into this Sublease and to consummate the transactions contemplated hereby; (iii) the individuals executing this Sublease on behalf of Subtenant have the power, right and authority to bind Subtenant; (iv) subject to the Master Landlord Consent, this Sublease will be valid and legally binding upon Subtenant and enforceable in accordance with its terms; and (v) there has not been filed by or against Sublandlord a petition in bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or arrangement under the bankruptcy laws of the United States or any state thereof, or any other action brought pursuant to such bankruptcy laws with respect to Subtenant.
(d) Except to the extent caused by the negligence or willful misconduct of Sublandlord, Subtenant will indemnify, defend and hold Sublandlord harmless from and against all loss, costs, damages, expenses and liability, including, but not limited to, reasonable attorneys’ fees, which Sublandlord may incur by reason of any third party claims against Sublandlord arising out of injuries to person or property occurring in, on or about the Sublease Premises arising by reason of (i) any breach or default hereunder on Subtenant’s part; (ii) any work done in or to the Sublease Premises (A) by Subtenant or its agents or contractors, (B) with the consent of Subtenant (unless performed by or for Sublandlord or Master Landlord) or (C) at the request of Subtenant; (iii) any act, omission, negligence or other fault on the part of Subtenant, or any of Subtenant’s agents, invitees, vendors, customers, contractors, subtenants, licensees or employees (collectively, “ Subtenant Parties ”); or (iv) any accident, injury or damage whatsoever to any person or entity occurring during the Term in the Sublease Premises (except to the extent caused by the willful acts or negligence of Sublandlord or its agents, invitees, vendors, customers, contractors, subtenants (other than Subtenant), licensees or employees). The foregoing indemnity shall be construed to supplement Subtenant’s obligations in the Master Lease, as incorporated in and made a part of this Sublease. Subtenant shall in no case have any rights in respect of the Sublease Premises greater than Sublandlord’s rights under the Master Lease. Notwithstanding any other provision of this Sublease, Sublandlord, as sublandlord under this Sublease, shall have the benefit of all rights, waivers, remedies and limitations of liability enjoyed by Master Landlord as the landlord under the Master Lease, but (i) except as expressly set forth herein, Sublandlord shall have no obligation under this Sublease to perform the obligations of Master Landlord, as landlord under the Master Lease, including, without limitation, any obligation to provide services or maintain insurance, (ii) Sublandlord shall not be bound by any representations or warranties of the Master Landlord under the Master Lease; (iii) in any instance where the consent of Master Landlord is required under the terms of the Master Lease, the consent of Master Landlord shall be required hereunder and, unless as otherwise expressly provided hereunder, the consent of Sublandlord shall also be required; and (iv) Sublandlord shall not be liable to Subtenant for any failure or delay in Master Landlord’s performance of its obligations, as landlord under the Master Lease.
(e) Sublandlord will indemnify, defend and hold Subtenant harmless from and against any loss, cost, damage, expense and liability, including, but not limited to, reasonable attorneys’ fees which Subtenant may incur by reason of damage to personal property or injury to any person or persons to the extent arising by reason of (i) any negligence of Sublandlord, or (ii) any willful misconduct of Sublandlord.

(f) Sublandlord represents and warrants to Subtenant that (i) as of the Commencement Date, Sublandlord is the tenant under the Master Lease and has the right to enter into this Sublease subject to obtaining the Master Landlord Consent; (ii) the Master Lease is in force and effect and has not been modified or amended; (iii) a true and complete copy of the Master Lease and all amendments thereof (except for certain redactions which do not adversely affect Subtenant’s obligations or rights under this Sublease) are attached hereto as Exhibit B and there exist no other agreements between Master Landlord and Sublandlord governing the use or occupancy of the Sublease Premises; (iv) to the actual knowledge of Sublandlord, Sublandlord has neither received from, nor sent to Master Landlord, written notice of any default under the Master Lease which remains outstanding beyond the expiration of the applicable grace period set forth therein; (v) there are no subleases of any part of the Sublease Premises entered into by Sublandlord which are currently in effect; (vi) Sublandlord is a duly organized, validly existing corporation in good standing under the laws of the State of Delaware; (vii) subject to obtaining the Master Landlord Consent, Sublandlord has the legal power, rights and authority to enter into this Sublease and to consummate the transactions contemplated hereby; (viii) the individuals executing this Sublease on behalf of Sublandlord have the power, right and authority to bind Sublandlord; (ix) subject to obtaining the Master Landlord Consent, this Sublease will be valid and legally binding upon Sublandlord and enforceable in accordance with its terms; and (x) there has not been filed by or against Sublandlord a petition in bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or arrangement under the bankruptcy laws of the United States or any state thereof, or any other action brought pursuant to such bankruptcy laws with respect to Sublandlord. Sublandlord shall not voluntarily terminate the Master Lease except as otherwise expressly provided herein. Sublandlord shall promptly deliver (but in no event more than three days after receipt) to Subtenant a copy of any notice of default or termination or any notice relating to any casualty or taking, given by Sublandlord to Master Landlord or received by Sublandlord from Master Landlord.
(g) All capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Master Lease.
(h) No member, manager, partner, director, stockholder or employee of Sublandlord shall ever be personally liable for a claim of breach of this Sublease.
(i) This Paragraph 3 shall survive any termination or expiration of this Sublease.
4. Base Rent .
(a) Commencing on the Commencement Date (the “ Rent Commencement Date ”), Subtenant shall pay Base Rent during the Term at the rate set forth in the following chart:

Sublease Term	  	Annual Base Rent	 	  	Monthly Base Rent	 	  	Base Rent per
Rentable Square
Foot per Month	 	
				
Commencement Date through September 30, 2014	  	$	2,843,823.60	  	  	$	236,985.30	  	  	$	3.54	  	
				
October 1, 2014 through September 30, 2015	  	$	2,957,576.52	  	  	$	246,464.71	  	  	$	3.68	  	
				
October 1, 2015 through October 15, 2015	  	$	3,075,879.60	  	  	$	256,323.30	  	  	$	3.83	  	

(b) Base Rent shall be payable in equal monthly installments in advance on the first day of each month during the Term commencing on the Rent Commencement Date.
(c) In addition to the Base Rent, Subtenant shall be responsible for the payment of any and all costs and expenses payable by Sublandlord under the Master Lease with respect to the Sublease Premises that accrue for periods on or subsequent to the Rent Commencement Date, including, without limitation, Tenant’s Share of Expenses and Taxes payable by Sublandlord under the Master Lease
5. Specific Covenants of the Parties . Notwithstanding anything to the contrary contained herein or in the Master Lease, the parties agree as follow:
(a) Subtenant’s Use of Furniture . For the period commencing on the Commencement Date and continuing until the Expiration Date, Subtenant shall have the right, subject to the terms and conditions hereof, to use the furniture, fixtures and equipment currently located within the Sublease Premises and more particularly described in Exhibit C attached hereto (the “ Furniture ”). During the Term until the Expiration Date, (i) so long as Subtenant is not in default beyond any applicable cure periods under the Sublease, Subtenant may use the Furniture in the Sublease Premises in the ordinary course of Subtenant’s business, but shall not cause, suffer or permit waste of the Furniture and may not remove any of the Furniture from the Sublease Premises, (ii) Subtenant shall keep the Furniture in reasonably good condition, subject to normal wear and tear and damage by casualty, and (iii) Subtenant will bear the full risk of loss in respect of the Furniture. Subtenant shall maintain an all-risk property insurance policy at Subtenant’s sole expense at replacement cost on the Furniture, with Sublandlord and Master Landlord being named as loss payees until the Expiration Date. Subtenant agrees that (x) Subtenant has fully inspected and acknowledged that the Furniture is in good condition, repair and working order, and (y) Subtenant is satisfied with and has accepted the Furniture “AS IS, WHERE IS AND WITH ALL FAULTS.” SUBLANDLORD MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE FURNITURE, EXPRESS OF IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTIABILITY OR FITNESS FOR A PARTICULAR PURPOSE. On the Expiration Date, provided Subtenant is not then in default hereunder beyond any applicable cure periods, ownership of the Furniture shall be deemed to automatically transfer from the Sublandlord to Subtenant without representation or warranty of any kind from Sublandlord and without the need for any further documentation or instrumentation.

(b) Payment of Base Rent and Additional Rent .
(i) The rent reserved under this Sublease shall consist of the Base Rent and Expenses and Taxes described in Paragraph 4 above and any other amounts payable by Subtenant hereunder, including without limitation any amounts payable pursuant to Paragraph 10(d) hereof (collectively with the Expenses and Taxes, the “ Additional Rent ”). Base Rent and Additional Rent payable by Subtenant to Sublandlord hereunder shall be paid to Sublandlord at the address set forth above, Attention: Real Estate Department or at such other place or places as Sublandlord may designate to Subtenant in writing, in lawful money of the United States, by good and sufficient check (subject to collection) or at Sublandlord’s option by wire transfer of immediately available funds to the account designated by Sublandlord.
(ii) Subtenant does hereby covenant and agree to (a) pay the Base Rent and Additional Rent to Sublandlord hereunder as and when the same shall become due and payable as herein provided, and except as otherwise specifically provided herein, without demand therefor and without any setoff or deduction whatsoever, and (b) keep, observe and perform, and to permit no violation of, each and every of the covenants, agreements, terms, provisions and conditions herein contained on the part of Subtenant to be kept, observed or performed.
(iii) If Subtenant shall fail to pay Base Rent or Additional Rent when the same is due and payable, Subtenant shall pay a late payment charge equal to five percent (5%) percent of the amount due. Such amount shall be payable as Additional Rent hereunder, and shall be payable in addition to any interest payable on such late payment of Base Rent or Additional Rent or other charges, per the Master Lease.
(c) Use . Subtenant may use and occupy the Sublease Premises only for general office use in a manner consistent with the terms of the Master Lease, provided that such use shall in all events be in compliance with all legal requirements, and for no other purpose.
(d) Condition of Sublease Premises . Sublandlord and Subtenant acknowledge and agree that Subtenant is leasing and does hereby accept the Sublease Premises in their clean, broom-swept and otherwise “AS IS” condition on the Commencement Date with the Furniture in place. Sublandlord shall have no obligation to perform any work to the Sublease Premises or to any part of the Building or to prepare the Sublease Premises for occupancy by Subtenant. Sublandlord makes no representation or warranty regarding the condition of the Sublease Premises or the Building or title to the Sublease Premises, except as expressly set forth herein and that Sublandlord is the tenant under the Master Lease as of the Commencement Date. In making and executing this Sublease, Subtenant has not relied upon or been induced by any statements or representations of any persons, other than those, if any, set forth expressly in this Sublease in respect of the physical condition of the Sublease Premises or the Building or of any other matter affecting the Sublease Premises or this transaction which might be pertinent in considering the leasing of said Sublease Premises or the execution of this Sublease. Subtenant has, on the contrary, relied solely on such representations, if any, as are expressly made herein and on such investigations, examinations and inspections as Subtenant has chosen to make or have made. Subtenant acknowledges that Sublandlord has afforded Subtenant the opportunity for full and complete investigations, examinations, and inspections, including without limitation of the Sublease Premises and the Building.

(e) Notices . Notices and other communications hereunder shall be in writing and shall be given or made (i) by nationally recognized overnight courier service providing for overnight delivery (e.g. Federal Express, DHL), in which case notices shall be deemed given one (1) business day after deposit with such overnight courier, or (ii) by United States certified or registered mail with return receipt requested provided the sender shall obtain a written receipt for such delivery, in which case notices shall be deemed given three (3) business days after deposit with the United States postal service, (iii) in person, in which case notices shall be deemed given when received, or (iv) by facsimile transmission, provided the sender shall obtain a written receipt for such delivery. All notices to Sublandlord shall be given to it at its office at Eight Cambridge Center, Cambridge, Massachusetts 02142 to the attention of Vice President of Corporate Services and to the Attention of General Counsel, Fax No. (617) 444-3695 with copy to Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02109, Attention: Sean T. Boulger, Esq., Fax No.: (617) 526-5000. All notices to Subtenant shall be sent to it at 3000 Clearview Way, San Mateo, CA 94402, Attention: Ernest Evans. Either party may change its address or addresses for notices by a written notice to the other party. All payments to be made by Subtenant to Sublandlord shall be delivered to Sublandlord at its address set forth above or to such other address as Sublandlord may hereafter designate in a written notice given under this paragraph.
(f) Time Limits . The time limits provided in the Master Lease for the giving of notices, making demands, performance of any act, condition or covenant, or the exercise of any right, remedy or option, are changed for the purposes of this Sublease, by lengthening or shortening the same in each instance by three (3) days (except that if the time limit provided in the Master Lease for the giving of any notice, making any demand, performing any act, condition or covenant or exercising any right shall be seven (7) days or less, then such time limit shall be changed by lengthening or shortening the same by two (2) days provided that in no event will the time limit given to Subtenant be less than four (4) days), as appropriate, so that notices may be given, demands made, or any act, condition or covenant performed, or any right, remedy or option hereunder exercised, by Sublandlord or Subtenant, as the case may be (and each party covenants that it will do so) within the time limit relating thereto contained in the Master Lease.
(g) Termination of Master Lease . If for any reason the term of the Master Lease is terminated or expires prior to the expiration date of this Sublease, this Sublease shall thereupon automatically be terminated.
(h) Casualty and Condemnation . If a fire or other casualty which damages the Sublease Premises occurs, and as a result of such fire or casualty Sublandlord, as tenant under the Master Lease, has the right to terminate the Master Lease pursuant to the terms thereof, then Subtenant may, at its election, terminate this Sublease by notice given to Sublandlord within fifteen (15) days following such casualty, in which event this Sublease will terminate on the date selected by Subtenant, which termination date will be not less than fifteen (15) days or more than forty-five (45) days after the date of such casualty. If the Sublease Premises, or such portion thereof as to render the balance (if reconstructed to the maximum extent practicable in the circumstances) unsuitable for Subtenant’s purposes, shall be taken by condemnation or right of eminent domain, Subtenant shall have the right to terminate this Sublease by giving notice to Sublandlord no later than fifteen (15) days after Subtenant has been deprived of possession, in which event this Sublease will terminate as of the fifteenth (15 th ) day after the date Subtenant is

deprived of possession. If all or any portion of the Sublease Premises is damaged by fire or casualty or affected by any exercise of the power of eminent domain so as to render all or a portion of the Sublease Premises untenantable, and such portion is not actually used by Subtenant, and this Sublease is not terminated, a just proportion of Base Rent according to the extent of the untenantability of the Sublease Premises shall be abated from the date of casualty or taking until the Sublease Premises shall have been put substantially into proper condition for use and occupation; and in case of a taking which permanently reduces the Rentable Floor Area of the Sublease Premises, a just proportion of the Base Rent shall be abated for the remainder of the Term.
(i) Assignment and Subletting .
(i) Notwithstanding anything to the contrary contained in the Master Lease, except as otherwise expressly provided below, Subtenant shall not, voluntarily or involuntarily or by operation of law or otherwise, assign, transfer, mortgage, pledge or encumber this Sublease, or sublet all or any part of the Sublease Premises or permit or suffer any person or entity to use or occupy all or any part of the Sublease Premises without in each instance obtaining the prior written consent of Sublandlord and Master Landlord, which consent of Sublandlord may be granted or withheld in Sublandlord’s sole discretion. Any sale, assignment or transfer (whether by one or a series of related or unrelated transactions and whether voluntarily, involuntarily or by operation of law or otherwise) of fifty percent (50%) or more of the direct or indirect ownership interests in Subtenant shall be deemed an assignment of this Sublease requiring Sublandlord’s consent.
(ii) Notwithstanding anything contained in this Sublease to the contrary, Subtenant may assign this Sublease or sublet all or a portion of the Sublease Premises, without Sublandlord’s consent, to an Affiliate (as defined below), or in connection with a merger, consolidation or the sale of all or substantially all of the assets of Subtenant, provided that the proposed sublease or assignment shall be subject to, and shall comply in all respects with this Sublease and the Master Lease and Master Landlord consents.
(iii) As used herein, the term “ Affiliate ” shall mean an entity which controls, is controlled by or is under common control with the entity in question, where the term “control” means ownership of more than fifty percent (50%) of the ownership interests in the entity in question and the ability to control the management and operation of the entity in question.
(j) Broker . Subtenant and Sublandlord each represents and warrants to the other that the indemnifying party did not negotiate through or communicate with any broker in connection with this transaction other than Cushman & Wakefield of California and Kidder Mathews (the “ Brokers ”), whose fees shall be paid by Sublandlord pursuant to a separate agreement. Subtenant agrees to indemnify, defend and hold Sublandlord harmless from and against any and all claims, loss, liability, costs and expenses (including, without limitation, reasonable counsel fees), resulting from any claims that may be made against Sublandlord by any broker or other person (other than the Brokers) claiming a commission, fee or other compensation by reason or of this transaction, if the same shall arise by, through or on account of any act of Subtenant or its representatives. Sublandlord agrees to indemnify, defend and hold

Subtenant harmless from and against any and all claims, loss, liability, costs and expenses (including, without limitation, reasonable counsel fees), resulting from any claims that may be made against Subtenant by any broker or other person claiming a commission, fee or other compensation by reason or of this transaction, if the same shall arise by, through or on account of any act of Sublandlord or its representatives. The provisions of this clause (j) shall not be construed to be for the benefit of any third party.
(k) No Services by Sublandlord . Subtenant agrees and acknowledges that Sublandlord is not in control of the Sublease Premises or of any of the services or facilities that may be appurtenant to or supplied at the Sublease Premises, including, without limitation, electricity, heat, air conditioning, water, elevator service, repairs, maintenance, painting, or parking facilities. Sublandlord shall not be responsible for any failure or interruption, for any reason whatsoever, of any of such services or facilities to be provided by Master Landlord, and Subtenant agrees that no failure to furnish, or interruption of, any such services or facilities shall give rise to (i) an abatement, diminution or reduction of Subtenant’s obligations hereunder whether in whole or in part, (ii) any constructive eviction, whether in whole or in part, or (iii) any liability on the part of Sublandlord. If Subtenant shall require any service or utility in excess of those provided under the Master Lease at no cost or expense to the Sublandlord thereunder (other than Subtenant’s payment of electricity charges and the Operating Cost Excess), Subtenant shall pay all costs and expenses of same, as well as all costs and expenses incurred by Sublandlord in endeavoring to cause Master Landlord to provide same, together with a three percent (3%) administrative charge. Notwithstanding anything to the contrary contained in this Sublease, Sublandlord agrees to use commercially reasonable efforts at no cost or expense to Sublandlord to cause Master Landlord to perform its obligations under the Master Lease for the benefit of Subtenant, provided, however that Sublandlord shall have no obligation to undertake or prosecute any action or suit against Master Landlord. In the event that, upon Subtenant’s reasonable request, Sublandlord elects in its sole discretion to institute or prosecute an action or suit against Master Landlord on Subtenant’s behalf, then Subtenant shall deposit in advance with Sublandlord a reasonable amount to cover Sublandlord’s anticipated costs of such suit, as reasonably determined by Sublandlord.
(l) Rent Abatement . Subtenant shall not be entitled to any rent abatement pursuant to the Master Lease, as incorporated herein by reference, unless and to the extent Sublandlord shall receive a rent abatement from Master Landlord pursuant to the Master Lease, as incorporated herein by reference, with respect to a portion of the Sublease Premises.
(m) Recordation . Neither this Sublease nor any notice thereof shall be recorded in any public office.
(n) Refusal by Master Landlord . Whenever pursuant to the terms of this Sublease or the Master Lease, Subtenant shall require the consent or approval of Master Landlord, and Subtenant delivers to Sublandlord a request that Master Landlord give such consent or approval, then Sublandlord agrees to deliver such request to Master Landlord promptly (but in any event within five (5) days) after its receipt by Sublandlord. If after such delivery of a request for Master Landlord to give its consent or approval, Master Landlord fails or refuses to give such consent or approval, then, regardless of whether the Master Lease provides that such consent or approval shall not be unreasonably withheld and/or delayed, (i) Sublandlord shall have no liability to Subtenant as a result thereof, and (ii) Sublandlord shall have no obligation to obtain such consent.

(o) Alterations .
(i) Subtenant shall make no alterations, installations, changes, renovations, additions, replacements or improvements (“ Alterations ”) in to or about the Sublease Premises without, in each instance (A) the prior written consent of Sublandlord and Master Landlord and (B) compliance with the terms and provisions of the Master Lease. All Alterations will be performed by contractors approved by Sublandlord, such approval not to be unreasonably withheld.
(ii) With respect to each Alteration, Subtenant shall be obligated to restore the Sublease Premises at the expiration or early termination of the Term to its condition prior to such Alteration unless (A) Sublandlord has no restoration obligation with respect to such Alteration pursuant to the Master Lease or (B) Master Landlord and Sublandlord agree in writing that Sublandlord will have no restoration obligation with respect to such Alteration.
(p) Security Deposit .
(i) Subtenant, at its option, shall deposit with Sublandlord on or before the date on which this Sublease is fully executed either cash or a “clean”, unconditional, irrevocable and transferable letter of credit or cash in the amount of One Hundred Fifty Thousand and 00/100ths Dollars ($150,000.00) (such letter of credit, as it may be renewed or replaced as provided herein, the “ Letter of Credit ”), in form and substance satisfactory to Sublandlord, issued by and drawn on a bank reasonably satisfactory to Sublandlord, for the account of Sublandlord, for a term of not less than one (1) year, as security for the faithful performance and observance by Subtenant of the terms, covenants, conditions and provisions of this Sublease, including, without limitation, the surrender of possession of the Sublease Premises to Sublandlord as herein provided. If Subtenant shall default beyond any applicable notice and/or grace period under any of the material terms, covenants or conditions of this Sublease, Sublandlord may present the Letter of Credit for payment in an amount equal to the reasonably estimated amount of the following items and apply the whole or any part of the proceeds thereof, as the case may be, (i) toward the payment of any Base Rent or Additional Rent or any other monetary obligation as to which Subtenant is in default, (ii) toward any sum which Sublandlord may expend or be required to expend by reason of Subtenant’s default in respect of any of the terms, covenants and conditions of this Sublease, including, without limitation, any damage, liability or expense (including, without limitation, reasonable attorneys’ fees and disbursements) incurred or suffered by Sublandlord, and (iii) toward any damage or deficiency incurred or suffered by Sublandlord in the reletting of the Sublease Premises, whether such damages or deficiency accrue or accrues before or after summary proceedings or other re-entry by Sublandlord. If Subtenant deposits cash with Landlord instead of the Letter of Credit, Sublandlord may access the cash in the same way it would have drawn on the Letter of Credit. If Sublandlord presents the Letter of Credit for payment, the proceeds thereof not applied as provided above shall be held as cash security. If Sublandlord applies or retains any part of the proceeds of the Letter of Credit or the cash security so deposited, as the case may be, Subtenant, within fifteen (15) days after demand, shall deposit with Sublandlord the amount so applied or

retained so that Sublandlord shall have the full deposit on hand at all times during the Term. The Letter of Credit or the cash security, as the case may be, shall be returned to Subtenant within thirty (30) days after the expiration date of the Term and after delivery of possession of the Sublease Premises to Sublandlord in the condition required herein, provided that Subtenant does not then owe any monies or other obligations hereunder to Sublandlord in which latter event Sublandlord may retain sufficient funds to cover the reasonably estimated cost to cure uncured defaults. In the event of an assignment of the Master Lease and this Sublease by Sublandlord, (i) Sublandlord shall have the right to transfer the Letter of Credit or the cash security, as the case may be, to the assignee, and Subtenant shall cause, at no cost to Sublandlord, the bank which issued the Letter of Credit to issue an amendment to the Letter of Credit or issue a new Letter of Credit naming such assignee as the beneficiary thereunder and (ii) provided that the new sublandlord assumes in writing the obligations of Sublandlord with respect to the return of the security deposit, Sublandlord shall be released by Subtenant for all liability for the return of such Letter of Credit or cash security, as the case may be, and Subtenant shall look solely to the new sublandlord for the return of such Letter of Credit or cash security, as the case may be. The provisions hereof shall apply to every transfer or assignment of the Letter of Credit or security made to a new Sublandlord. Subtenant shall not assign or encumber or attempt to assign or encumber the monies deposited herein as security and neither Sublandlord nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Subtenant shall renew the Letter of Credit from time to time, at least thirty (30) days prior to the expiration thereof, and deliver to Sublandlord a new Letter of Credit or an endorsement to the Letter of Credit, and any other evidence required by Sublandlord that the Letter of Credit has been renewed for a period of at least one (1) year. The final expiration date of the Letter of Credit shall be no earlier than October 15, 2018. If Subtenant shall at any time fail to timely renew the Letter of Credit as aforesaid, Sublandlord may present the Letter of Credit for payment and retain the proceeds thereof as cash security in lieu of the Letter of Credit.
(q) Parking . Subject to the terms and provisions of the Master Lease, Subtenant shall have parking privileges for the use of two hundred and five (205) parking spaces. Subtenant shall have no right to any reserved parking spaces.
(r) Subordination . This Sublease and the term and estate hereby granted are and shall be subject and subordinate to (a) the lien of each mortgage which may now or at any time hereafter affect the Sublease Premises or Sublandlord’s interest therein, (b) the Master Lease and (c) all other matters to which the Master Lease is subject. The foregoing provision for the subordination of this Sublease and the term and estate hereby granted shall be self-operative and no further instrument shall be required to effect any such subordination; but Subtenant shall, however, upon request by Sublandlord, at any time or times, execute and deliver any and all reasonable instruments that may be necessary or proper to effect such subordination or to confirm or evidence the same. Sublandlord agrees that it will not voluntarily subordinate the Master Lease to the lien of any mortgage encumbering the Sublease Premises or to any ground lease affecting the Sublease Premises, unless required to do so pursuant to the Master Lease.
6. Master Landlord’s Approval . This Sublease shall have no effect until Master Landlord shall have delivered to Sublandlord its written consent to this Sublease (the “Master Landlord Consent”) in form and substance reasonably satisfactory to Sublandlord and Subtenant. Sublandlord agrees to use reasonable efforts (without, however, having to incur any cost,

expense or liability) to obtain the Master Landlord Consent. Notwithstanding any provision of the Sublease to the contrary, if Sublandlord does not receive the Master Landlord Consent for any reason whatsoever on or before the date that is sixty (60) days after the date on which this Sublease is fully executed, then (a) Sublandlord shall not be obligated to take any further action to obtain the Master Landlord Consent and (b) upon Sublandlord’s or Subtenant’s written election this Sublease shall be deemed void and of no further effect.
7. Apportionment . If the Term does not commence on the first day of a month or end on the last day of a month, Base Rent and all other charges for such partial month(s) will be paid by Subtenant to Sublandlord at the applicable rate on a pro rata basis.
8. Amendment of Master Lease . Sublandlord shall have the right to modify or amend the Master Lease without the prior written consent of Subtenant, unless such modification or amendment shortens the term of the Master Lease (except as expressly set forth below), terminates this Sublease, reduces (except in a non-material manner) any rights or services to be provided to Subtenant under this Sublease, increases any financial obligation of Subtenant hereunder, increases (except in a non-material manner) any non-financial obligation of Subtenant hereunder, in which event Subtenant’s consent to such modification or amendment shall be required; and any reference in this Sublease to the Master Lease, shall mean the Master Lease as modified or amended from time to time.
9. Governing Law . Irrespective of the place of execution or performance, this Sublease shall be governed by and construed in accordance with the laws of the state in which the Sublease Premises are located.
1 0 . Miscellaneous .
(a) Prior Understandings; Entire Agreement . All understandings and agreements heretofore had between the parties are merged in this Sublease and any other written agreement(s) made concurrently herewith, which alone fully and completely express the agreement of the parties. This Sublease contains a complete statement of all the agreements and arrangements between the parties with respect to its subject matter and cannot be changed or terminated orally. This Sublease shall be construed without any presumption against the party drafting this Sublease or causing the same to be drafted.
(b) Submission to Jurisdiction . Subtenant and Sublandlord each (i) irrevocably agrees that any suit, action or other legal proceeding arising out of or relating to this Sublease may be brought in the courts of the State of California or of the United States of America located in San Mateo County, California (ii) consents to the jurisdiction of each such court in any such suit, action or proceeding and (iii) waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.
(c) Captions . The captions in this instrument are used for convenience in finding the subject matters, and are not to be taken as part of this instrument, or to be used in determining the intent of the parties, or otherwise interpreting this Sublease.

(d) Sublandlord’s Cost and Expenses . If Subtenant shall be in default under this Sublease and such default shall remain uncured beyond the expiration of the applicable grace period set forth herein, all attorney’s fees and all other costs and expenses incurred by Sublandlord in enforcing Sublandlord’s rights hereunder or in collecting any Base Rent or Additional Rent hereunder shall be Additional Rent hereunder and shall be payable by Subtenant within thirty (30) days after written notice from Sublandlord.
(e) Subtenant’s Cost and Expenses . If Sublandlord shall be in default under this Sublease and such default shall remain uncured for thirty (30) days after written notice from Subtenant (provided that if such default cannot with reasonable diligence be cured within said 30 day period and Sublandlord is diligently pursuing to complete such cure such 30 day grace period shall be extended as long as Sublandlord is diligently proceeding to complete such cure), all attorney’s fees and all other costs and expenses incurred by Subtenant in enforcing Subtenant’s rights hereunder shall be payable by Sublandlord within thirty (30) days after written notice from Subtenant.
(f) Sublandlord’s Right . Sublandlord or Sublandlord’s agents shall have the right (but shall not be obligated) to enter the Sublease Premises in any emergency at any time and without notice (provided that Sublandlord shall give written notice as soon as is reasonably practicable after such emergency entry), and, at other times upon at least one (1) business day’s prior written notice during normal business hours on business days (and at Subtenant’s option accompanied by a representative of Subtenant), to examine or inspect the same and to make such repairs, replacements, alterations, improvements, or additions as Sublandlord may reasonably deem necessary or desirable to any portion of the Sublease Premises (which Sublandlord may elect to perform in the Sublease Premises following Subtenant’s failure to make repairs or perform any work which Subtenant is obligated to perform under this Sublease, or for the purpose of complying with laws, regulations and other directions of governmental authorities. Subtenant shall permit Sublandlord to use, repair, maintain and replace pipes, ducts, wires, conduits and appurtenant fixtures in and through the Sublease Premises and to erect or install new pipes, ducts, wires, conduits and appurtenant fixtures therein. Sublandlord may, during the progress of any work in the Sublease Premises, take all reasonably necessary materials and equipment into the Sublease Premises without the same constituting an eviction nor shall Subtenant be entitled to any abatement of rent while such work is in progress nor to any damages by reason of loss or interruption of business. If, after giving the notice, if any, required above, Subtenant is not present to open and permit an entry into the Sublease Premises, Sublandlord or Sublandlord’s agent may enter the same whenever such entry may be necessary or permissible by master key or in the event of emergency (after trying to give written or oral notice to Subtenant) forcibly and provided reasonable care is exercised to safeguard Subtenant’s property and such entry shall not render Sublease or its agent liable therefor, nor in any event shall the obligations of Subtenant hereunder be affected. The Sublandlord shall use commercially reasonable efforts to minimize the disruption to Subtenant’s normal business that results from the conduct of such activities.
(g) Successors and Assigns . This Sublease shall apply to all respective successors and permitted assigns of the parties hereto but this paragraph shall not be construed as a consent to any assignment or subletting by Subtenant.

(h) Cross-Default . Sublandlord and Subtenant acknowledge that they are simultaneously entering into a separate sublease for the premises known as Suite 300-A of the building located at 3155 Clearview Way in San Mateo, California (the “ 3155 Sublease ”). In the event that Subtenant defaults beyond applicable notice and cure periods under the 3155 Sublease, such default shall also constitute a default under this Sublease, with respect to which default Sublandlord shall have all of the rights and remedies set forth herein.
(i) Notwithstanding anything to the contrary contained in this Sublease, in the event of any conflict with another provision of this Sublease, the provisions of this Paragraph 10 (i) shall take precedence and govern.
(i) Violations of Legal Requirements . Notwithstanding anything contained in this Sublease to the contrary, Subtenant shall not be liable to Sublandlord or responsible for the costs of correcting any violation of or noncompliance with applicable legal requirements with respect to the Premises if such violation or noncompliance exists on the Commencement Date or if such violation or noncompliance is not the result of an act or omission by Subtenant.
(ii) Sublandlord Alterations . Subtenant shall not be required to remove any alterations or additions performed by Sublandlord prior to the Commencement Date (“ Sublandlord Alterations ”) or to restore the Sublease Premises to its condition prior to the making of such Sublandlord Alterations unless Subtenant has extended the Expiration Date in accordance with Paragraph 2 above. If Sublandlord is required under the Master Lease to remove any Sublandlord Alterations performed prior to the Commencement Date and Subtenant has not extended the Expiration Date in accordance with Paragraph 2 above, Subtenant shall permit Sublandlord to enter the Sublease Premises for a reasonable period of time prior to the Expiration Date for the purpose of removing Sublandlord Alterations and restoring the Sublease Premises as required by the Master Lease.
(iii) No Master Lease Assumption . Subtenant is not assuming any obligations under the Master Lease (it being acknowledged and agreed by the parties that Subtenant is obligated to perform its obligations hereunder with respect to the Incorporated Provisions, as set forth in Section 3(b) above) and, for the avoidance of doubt, is not liable or responsible (legally, financially or otherwise) for any acts or omissions of Sublandlord as tenant under the Master Lease or their consequences.
(Signatures on next page)

IN WITNESS WHEREOF, this Sublease has been duly executed by Sublandlord and Subtenant as of the day and year first herein above written.

SUBLANDLORD:	
	
AKAMAI TECHNOLOGIES, INC.,
a Delaware corporation	
		
By:	 	/s/ Skip Hartwell	
	 	Name:	 	Skip Hartwell	
	 	Title:	 	VP, Corporate Services	
	
SUBTENANT:	
	
WOODMAN LABS, INC.,
a Delaware corporation	
		
By:	 	/s/ Kurt Amundson	
	 	Name:	 	Kurt Amundson	
	 	Title:	 	CFO	
List of Exhibits

Exhibit A	  	Floor Plan of Sublease Premises	
Exhibit B	  	Master Lease	
Exhibit C	  	Furniture Inventory	

Exhibit A
Floor Plan of Sublease Premises
[Attached]

 

 

 

Exhibit B
Master Lease
[Attached]

Exhibit 10.13
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this “ Agreement ”) is entered into as of December 27, 2011, by and between WOODMAN LABS, INC., a Delaware corporation (“ Borrower ”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (“ Bank ”).
RECITALS
Borrower has requested that Bank extend or continue credit to Borrower as described below, and Bank has agreed to provide such credit to Borrower on the terms and conditions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bank and Borrower hereby agree as follows:
ARTICLE I
CREDIT TERMS
SECTION 1.1. LINE OF CREDIT.
(a) Line of Credit . Subject to the terms and conditions of this Agreement, Bank hereby agrees to make advances to Borrower from time to time up to and including December 27, 2012, not to exceed at any time the aggregate principal amount of Fifteen Million Dollars ($15,000,000) (“ Line of Credit ”), the proceeds of which shall be used for Borrower’s general corporate purposes and to finance Borrower’s working capital requirements in the ordinary course of business. Borrower’s obligation to repay advances under the Line of Credit shall be evidenced by a promissory note executed by Borrower dated as of December 27, 2011 (“ Line of Credit Note ”), all terms of which are incorporated herein by this reference.
(b) Letter of Credit Subfeature . As a subfeature under the Line of Credit, Bank agrees from time to time during the term thereof to issue or cause an affiliate to issue standby letters of credit for the account of Borrower for general corporate purposes of Borrower agreed to by Bank (each, a “ Letter of Credit ” and collectively, “ Letters of Credit ”); provided however, that the aggregate undrawn amount of all outstanding Letters of Credit shall not at any time exceed Fifteen Million Dollars ($15,000,000). The form and substance of each Letter of Credit shall be subject to approval by Bank, in its sole discretion. Each Letter of Credit shall be issued for a term not to exceed three hundred sixty five or three hundred sixty six (365 or 366) days, as designated by Borrower; provided however, that no Letter of Credit shall have an expiration date more than three hundred sixty five or three hundred sixty six (365 or 366) days beyond the maturity date of the Line of Credit; provided further that if any Letter of Credit shall have an expiration date beyond the maturity date or termination date of the Line of Credit, Borrower shall, at least thirty (30) days prior to the earlier of the maturity date or termination date of the Line of Credit, cash collateralize the aggregate amount of all outstanding but undrawn Letters of Credit by depositing in a blocked, non-interest bearing deposit account of Borrower at Bank in the name of Bank and under the sole dominion and control of Bank cash in an aggregate amount equal to one hundred five percent (105%) of the maximum aggregate amount available to be drawn under all outstanding but undrawn Letters of Credit and if additional Letters of Credit become outstanding from and after the date of such deposit, Borrower shall immediately deposit
 
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additional cash collateral in an aggregate amount equal to one hundred five percent (105%) of the maximum aggregate amount available to be drawn under such additional Letters of Credit (all such cash deposits, deposit accounts and all balances therein, collectively, the “ Letter of Credit Deposits ”). Borrower hereby grants to (and subjects to the control of) Bank, and agrees to maintain, a first priority security interest in all Letter of Credit Deposits, and in all proceeds thereof, all as security for the obligations to which such cash collateral may be applied pursuant to this Agreement or the other Loan Documents. Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of cash collateral. Upon the drawing of any Letter of Credit that has been cash collateralized, unless such drawing has become an advance under the Line of Credit pursuant to the terms and conditions of this Agreement or has been repaid by Borrower in accordance with this Agreement, the funds held as cash collateral shall be applied (without any further action by or notice to or from Borrower or any guarantor hereunder) to repay Bank. At such time as the Letter of Credit Deposits exceed the sum of the maximum aggregate amount available to be drawn under all outstanding but undrawn Letters of Credit and the aggregate amount of all drawings under Letters of Credit honored by Bank and not repaid by Borrower, if no Event of Default (as defined herein) has occurred and is continuing, the amount of such excess shall, at the request of Borrower, be released to Borrower. The undrawn amount of all Letters of Credit shall be reserved under the Line of Credit and shall not be available for borrowings thereunder. Each Letter of Credit shall be subject to the additional terms and conditions of the Letter of Credit agreements, applications and any related documents required by Bank in connection with the issuance thereof. Each drawing paid under a Letter of Credit shall be deemed an advance under the Line of Credit and shall be repaid by Borrower in accordance with the terms and conditions of this Agreement applicable to such advances; provided however, that if advances under the Line of Credit are not available, for any reason, at the time any drawing is paid, then Borrower shall immediately pay to Bank the full amount drawn, together with interest thereon from the date such drawing is paid to the date such amount is fully repaid by Borrower, at the rate of interest applicable to advances under the Line of Credit. In such event Borrower agrees that Bank, in its sole discretion, may debit any account maintained by Borrower with Bank for the amount of any such drawing.
(c) Borrowing and Repayment . Borrower may from time to time during the term of the Line of Credit borrow, partially or wholly repay its outstanding borrowings, and reborrow, subject to all of the limitations, terms and conditions contained herein or in the Line of Credit Note; provided however, that the total outstanding borrowings under the Line of Credit shall not at any time exceed the maximum principal amount available thereunder, as set forth above.
SECTION 1.2. INTEREST/FEES.
(a) Interest . The outstanding principal balance of each credit subject hereto (other than drawings paid under any Letter of Credit) shall bear interest at the rate of interest set forth in the Line of Credit Note, and the amount of each drawing paid under any Letter of Credit shall bear interest from the date such drawing is paid to the date such amount is fully repaid by Borrower, at a fluctuating rate per annum equal to the Prime Rate (as defined in the Line of Credit Note) in effect from time to time. When interest is determined in relation to the Prime Rate, each change in the rate of interest shall become effective on the date each Prime Rate change is announced within Bank.
 
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(b) Computation and Payment . Interest shall be computed on the basis of a 360-day year, actual days elapsed. Interest shall be payable at the times and place set forth in each promissory note or other instrument or document required hereby.
(c) Unused Commitment Fee . Borrower shall pay to Bank a fee equal to twenty five hundredth percent (0.25%) per annum (computed on the basis of a 360-day year, actual days elapsed) on the average daily unused amount of the Line of Credit, which fee shall be calculated on a quarterly basis by Bank and shall be due and payable by Borrower in arrears on the last day of each calendar quarter.
(d) Letter of Credit Fees . Borrower shall pay to Bank (i) fees on the issuance date and on each anniversary date thereof with respect to each Letter of Credit equal to one percent (1.0%) per annum (computed on the basis of a 360-day year, actual days elapsed) of the face amount thereof, and (ii) fees upon the issuance of each Letter of Credit (without duplication of the fees set forth in the preceding clause (i)), upon the payment or negotiation of each drawing under any Letter of Credit and upon the occurrence of any other activity with respect to any Letter of Credit (including without limitation, the transfer, amendment or cancellation of any Letter of Credit) determined in accordance with Bank’s standard fees and charges then in effect for such activity.
SECTION 1.3. COLLECTION OF PAYMENTS. Borrower authorizes Bank to collect all principal, interest and fees due under the Line of Credit by charging Borrower’s deposit account number 2118396759 with Bank, or any other deposit account maintained by Borrower with Bank, for the full amount thereof. Should there be insufficient funds in any such deposit account to pay all such sums due on a given date, the full amount of such deficiency shall be immediately due and payable by Borrower.
SECTION 1.4. COLLATERAL. As security for all indebtedness and other obligations of Borrower to Bank subject hereto and under the Line of Credit Note, Borrower hereby grants, and shall cause each guarantor hereunder to grant, to Bank security interests of first priority in (i) all of Borrower’s Collateral, and (ii) all of such guarantor’s Collateral. “ Collateral ” means collectively, all of the personal property in which liens are purported to be granted pursuant to the Continuing Security Agreement, any other security agreements, pledge agreements, foreign pledge agreements, control agreements, and all other instruments or documents delivered by Borrower or any guarantor pursuant to this Agreement or any of the other Loan Documents (as defined below) in order to grant to Bank a lien on any personal property of Borrower or such guarantor as security for the obligations hereunder and the Line of Credit Note and the other obligations described in such agreements, instruments or documents. All of the foregoing shall be evidenced by and subject to the terms of such security agreements, pledge agreements, control agreements, financing statements, deeds or mortgages, and other documents as Bank shall reasonably require, all in form and substance satisfactory to Bank. Borrower shall pay to Bank immediately upon demand the full amount of all charges, costs and expenses (to include fees paid to third parties and all allocated costs of Bank personnel), expended or incurred by Bank in connection with any of the foregoing security, including without limitation, filing and recording fees and costs of appraisals, audits and title insurance.
 
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SECTION 1.5. GUARANTIES. The payment and performance of all indebtedness and other obligations of Borrower to Bank subject hereto and under the Line of Credit Note shall be guaranteed jointly and severally by each subsidiary of Borrower that is organized under the laws of any political subdivision of the United States (each, a “ Domestic Subsidiary ”) that is a Material Subsidiary, as evidenced by and subject to the terms of guaranties in form and substance satisfactory to Bank. “ Material Subsidiary ” means each subsidiary of Borrower now existing or hereafter acquired or formed by Borrower which, on a consolidated basis for such subsidiary and its subsidiaries, (i) for the most recent fiscal quarter accounted for more than 5% of the consolidated revenues of Borrower and its subsidiaries or (ii) as at the end of such fiscal quarter, was the owner of more than 5% of the consolidated assets of Borrower and its subsidiaries.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to Bank, as of the date made or deemed made:
SECTION 2.1. LEGAL STATUS. Borrower is a corporation, duly organized and validly existing and in good standing under the laws of the State of Delaware, and is qualified or licensed to do business (and is in good standing as a foreign corporation, if applicable) in all jurisdictions in which such qualification or licensing is required except to the extent the failure to so qualify or to be so licensed could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each subsidiary of Borrower is duly organized or formed, validly existing and, as applicable, in good standing under the laws of the jurisdiction of its organization or formation, and is qualified or licensed to do business (and is in good standing as a foreign corporation, if applicable) in all jurisdictions in which such qualification or licensing is required except to the extent the failure to so qualify or to be so licensed could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As of the date hereof, Borrower has no subsidiaries. “ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, assets, liabilities (actual or contingent) or condition (financial or otherwise) of Borrower and its subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of Bank under any Loan Document, or of the ability of Borrower or any guarantor to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against Borrower or any guarantor of any Loan Document to which it is a party.
SECTION 2.2. AUTHORIZATION AND VALIDITY. This Agreement and each promissory note, Letter of Credit (and any applications for, or reimbursement agreements or other documents or certificates executed by Borrower in favor of Bank relating to, the Letters of Credit), guarantee, security agreement, pledge agreement, control agreement, contract, instrument and other document required hereby or at any time hereafter delivered to Bank in connection herewith (collectively, the “ Loan Documents ”) have been duly authorized, and upon their execution and delivery in accordance with the provisions hereof will constitute legal, valid and binding agreements and obligations of Borrower or any of its subsidiaries which executes the same, enforceable in accordance with their respective terms.
 
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SECTION 2.3. NO VIOLATION. The execution, delivery and performance by Borrower and each guarantor of each of the Loan Documents to which Borrower or such guarantor is a party do not violate any provision of any law or regulation, or contravene any provision of the Organization Documents (as defined below) of Borrower or such guarantor; or result in any breach of or default under any contract, obligation, indenture or other instrument to which Borrower or such guarantor is a party or by which Borrower or such guarantor may be bound.
SECTION 2.4. LITIGATION. There are no pending, or to the best of Borrower’s knowledge threatened, actions, claims, investigations, suits or proceedings by or before any governmental authority, arbitrator, court or administrative agency which could, individually or in the aggregate, have a Material Adverse Effect, other than those disclosed by Borrower to Bank in Schedule 2.4 attached hereto.
SECTION 2.5. CORRECTNESS OF FINANCIAL STATEMENTS. The annual financial statements of Borrower dated December 31, 2010, and all interim financial statements delivered to Bank since said date, true copies of which have been delivered by Borrower to Bank prior to the date hereof, (a) are complete and correct and present fairly the financial condition of Borrower, (b) disclose all liabilities of Borrower that are required to be reflected or reserved against under generally accepted accounting principles, whether liquidated or unliquidated, fixed or contingent, and (c) have been prepared in accordance with generally accepted accounting principles consistently applied. Since the dates of such financial statements there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect, nor has Borrower or any subsidiary of Borrower mortgaged, pledged, granted a security interest in or otherwise encumbered any of its assets or properties except in favor of Bank or as otherwise permitted by Bank in writing.
SECTION 2.6. INCOME TAX RETURNS; TAXES. Neither Borrower nor any subsidiary of Borrower has any knowledge of any pending assessments or adjustments of its income tax payable with respect to any year. Borrower and each of its subsidiaries have filed all Federal and state tax returns and reports required to be filed, and has paid all Federal and state taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with generally accepted accounting principles. Borrower and each of its subsidiaries have filed all other tax returns and reports required to be filed except to the extent the failure to file such tax returns or reports could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Borrower and each of its subsidiaries have paid all other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with generally accepted accounting principles or (b) to the extent such unpaid taxes, assessments, fees or charges do not exceed $50,000 individually or $100,000 in the aggregate. Neither Borrower nor any of its subsidiaries is party to any tax sharing agreement.
 
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SECTION 2.7. NO SUBORDINATION. There is no agreement, indenture, contract or instrument to which Borrower or any of its subsidiaries is a party or by which Borrower or any of its subsidiaries may be bound that requires the subordination in right of payment of (a) any of Borrower’s obligations subject to this Agreement to any other obligation of Borrower or (b) any obligations of any guarantor subject to the Loan Documents to which such guarantor is a party to any other obligation of such guarantor.
SECTION 2.8. PERMITS, FRANCHISES. Borrower and each of its subsidiaries possess all permits, consents, approvals, franchises and licenses required and rights to all trademarks, trade names, patents, and fictitious names, if any, necessary to enable Borrower or such subsidiary to conduct the business in which it is engaged in compliance with applicable law.
SECTION 2.9. ERISA. Borrower and its subsidiaries are in compliance in all material respects with all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended or recodified from time to time (“ ERISA ”), and of any other law, rule or regulation of any governmental authority other than the United States or any political subdivision thereof that mandates or governs any employee benefit plan maintained by Borrower or any of its subsidiaries (each, a “ Foreign Plan ”); neither Borrower nor any of its subsidiaries has violated any provision of any defined employee pension benefit plan (as defined in ERISA) maintained or contributed to by Borrower or such subsidiary (each, a “ Plan ”) or of any Foreign Plan; neither any Reportable Event as defined in ERISA with respect to any Plan nor any similar event with respect to any Foreign Plan, in each case initiated by Borrower or any of its subsidiaries, has occurred and is continuing; Borrower and its subsidiaries have met their respective minimum funding requirements under ERISA with respect to each Plan and under any other law, rule or regulation of any governmental authority other than the United States or any political subdivision thereof that mandates or governs each Foreign Plan; and each Plan and each Foreign Plan will be able to fulfill its benefit obligations as they come due in accordance with the Plan documents and the Foreign Plan documents and under generally accepted accounting principles.
SECTION 2.10. OTHER OBLIGATIONS. Neither Borrower nor any of its subsidiaries is in default on any obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation except as set forth in Schedule 2.10 attached hereto.
SECTION 2.11. ENVIRONMENTAL MATTERS. Except as disclosed in Schedule 2.11 attached hereto, Borrower and each of its subsidiaries are in compliance in all material respects with all applicable federal, state or foreign environmental, hazardous waste, health and safety statutes, and any rules or regulations adopted pursuant thereto, which govern or affect any operations and/or properties of Borrower or any of its subsidiaries, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Superfund Amendments and Reauthorization Act of 1986, the Federal Resource Conservation and Recovery Act of 1976, and the Federal Toxic Substances Control Act, as any of the same may be amended, modified or supplemented from time to time. None of the operations of Borrower or any of its subsidiaries is the subject of any investigation by any federal, state or foreign governmental authority evaluating whether any remedial action involving a material expenditure is needed to respond to a release of any toxic or hazardous waste or substance into the environment. Neither Borrower nor any of its subsidiaries has any material contingent liability in connection with any release of any toxic or hazardous waste or substance into the environment.
 
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SECTION 2.12. GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any governmental authority or any other person or entity is necessary or required in connection with the execution, delivery or performance by, or enforcement against, Borrower or any guarantor of this Agreement or any other Loan Document to which Borrower or such guarantor is a party.
SECTION 2.13. COMPLIANCE WITH LAWS. Borrower and its subsidiaries are in compliance with the requirements of all laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 2.14. RIGHTS IN COLLATERAL. Borrower and its subsidiaries that are guarantors hereunder own the property granted by such person or entity as Collateral under this Agreement and the other Loan Documents, free and clear of any liens and other encumbrances except for Permitted Liens. The provisions of the Loan Documents are effective to create in favor of Bank a legal, valid and enforceable first priority lien on all right, title and interest of Borrower and each guarantor hereunder in and to the Collateral of such person or entity except that some liens described in clauses (a), (d), (e) and (f) of the “Permitted Liens” definition below may be senior in priority to Bank’s lien in the Collateral, and, except for filings completed prior to the date hereof and as contemplated hereby and by the other Loan Documents, no filing or other action will be necessary to perfect such liens. No authorization, approval or other action by, and no notice to or filing with, any governmental authority is required for either (i) the pledge or grant by Borrower or any guarantor hereunder of the liens purported to be created in favor of Bank pursuant to any Loan Documents or (ii) the exercise by Bank of any rights or remedies in respect of any Collateral, except for filings or recordings contemplated by the Loan Documents and except as may be required, in connection with the disposition of any Collateral, by laws generally affecting the offering and sale of securities. Except for filings in favor of Bank and filings to evidence liens described in clauses (a), (d) and (f) of the “Permitted Liens” definition below, no effective financing statement, fixture filing or other instrument similar in effect covering all or any part of the Collateral is on file in any filing or recording office. All information supplied to Bank by or on behalf of Borrower or any guarantor hereunder with respect to any of the Collateral is accurate and complete in all material respects.
SECTION 2.15. REAL PROPERTY. As of the date hereof, Borrower does not own any fee interest in any real property. All information supplied to Bank by or on behalf of Borrower or any subsidiary of Borrower with respect to any of the real property in which Borrower or such subsidiary has a leasehold interest is accurate and complete in all material respects.
SECTION 2.16. DISCLOSURE. No information, exhibit or report furnished to Bank by or on behalf of Borrower or any subsidiary of Borrower for use in connection with the transactions contemplated by this Agreement contains any untrue statement of a material fact or
 
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omits to state a material fact (known to Borrower or any subsidiary of Borrower, in the case of any document not furnished by it) necessary in order to make the statements contained therein not misleading in light of the circumstances in which the same were made.
ARTICLE III
CONDITIONS
SECTION 3.1. CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of Bank to extend any credit contemplated by this Agreement is subject to the fulfillment to Bank’s satisfaction of all of the following conditions:
(a) Approval of Bank Counsel . All legal matters incidental to the extension of credit by Bank shall be satisfactory to Bank’s counsel.
(b) Documentation . Bank shall have received, in form and substance satisfactory to Bank, each of the following, duly executed:
 
 	(i)	This Agreement and each promissory note or other instrument or document required hereby.	
 
 	(ii)	Certificate of Borrower’s secretary or similar person, as to, and attaching if applicable: (A) copies of the Articles of Incorporation, certified as of a recent date by the Secretary of State of Borrower’s state of organization; (B) copies of the bylaws of Borrower; (C) copies of resolutions of the board of directors or other governing body or other authorizing documents of Borrower, in form and substance satisfactory to Bank, approving the Loan Documents and the extensions of credit hereunder; (D) incumbency; and (E) copies of certificates of good standing or its equivalent with respect to Borrower certified as of a recent date by the Secretary of State and the tax authority of Borrower’s state of organization and each other state in which Borrower is qualified to do business.	
 
 	(iii)	Continuing Security Agreement.	
 
 	(iv)	Disbursement Order.	
 
 	(v)	Such other documents as Bank may require under any other Section of this Agreement.	
(c) Financial Condition . There shall have been no material adverse change, as determined by Bank, in the financial condition or business of Borrower, nor any material decline, as determined by Bank, in the market value of any Collateral required hereunder or a substantial or material portion of the assets of Borrower.
(d) Insurance . Borrower shall have delivered to Bank evidence of insurance coverage on all Borrower’s property, in form, substance, amounts, covering risks and issued by companies satisfactory to Bank, and where required by Bank, with loss payable endorsements in favor of Bank.
 
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SECTION 3.2. CONDITIONS OF EACH EXTENSION OF CREDIT. The obligation of Bank to make each extension of credit requested by Borrower hereunder shall be subject to the fulfillment to Bank’s satisfaction of each of the following conditions:
(a) Compliance . The representations and warranties of Borrower and any of its subsidiaries contained herein and in each of the other Loan Documents shall be true on and as of the date of the signing of this Agreement and on the date of each extension of credit by Bank pursuant hereto, with the same effect as though such representations and warranties had been made on and as of each such date except to the extent that any representation or warranty specifically refers to an earlier date, in which case such representation or warranty shall be true as of such earlier date, and on each such date, (i) no event or circumstance that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect shall have occurred and be continuing or shall exist, and (ii) no Event of Default as defined herein, and no condition, event or act which with the giving of notice or the passage of time or both would constitute such an Event of Default, shall have occurred and be continuing or shall exist. Each request for an extension of credit submitted by Borrower shall be deemed to be a representation and warranty that the conditions specified in this Section 3.2(a) have been satisfied on and as of the date of the applicable extension of credit.
(b) Documentation . Bank shall have received all additional documents which may be required in connection with such extension of credit.
(c) Additional Letter of Credit Documentation . Prior to the issuance of each Letter of Credit, Bank shall have received a letter of credit agreement, properly completed and duly executed by Borrower.
ARTICLE IV
AFFIRMATIVE COVENANTS
Borrower covenants that from the date hereof and until all of the following shall have occurred: (a) all of Bank’s commitments to extend credit to Borrower pursuant hereto have terminated, (b) all indebtedness and liabilities (whether direct or contingent, liquidated or unliquidated, other than contingent indemnification obligations) of Borrower and any guarantor to Bank under any of the Loan Documents have been indefeasibly paid in full in cash, and (c) all Letters of Credit have terminated or expired (other than Letters of Credit that have been cash collateralized pursuant to the terms hereof), Borrower shall, and shall cause each of its subsidiaries to, unless Bank otherwise consents in writing:
SECTION 4.1. PUNCTUAL PAYMENTS. Punctually pay all principal, interest, fees or other liabilities due under any of the Loan Documents at the times and place and in the manner specified therein, and immediately upon demand by Bank, the amount by which the outstanding principal balance of any credit subject hereto at any time exceeds any limitation on borrowings applicable thereto.
SECTION 4.2. ACCOUNTING RECORDS. Maintain adequate books and records in accordance with generally accepted accounting principles consistently applied, and permit any representative of Bank, at any reasonable time, to inspect, audit and examine such books and records, to make copies of the same, and to inspect the properties of Borrower or any of its subsidiaries.
 
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SECTION 4.3. FINANCIAL STATEMENTS. Provide to Bank all of the following, in form and detail satisfactory to Bank:
(a) not later than 120 days after and as of the end of each fiscal year, audited consolidated and consolidating financial statements of Borrower and its subsidiaries, prepared by a nationally recognized independent accounting firm acceptable to Bank, to include a balance sheet and the related statements of income or operations, changes in shareholders’ equity and cash flows, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with generally accepted accounting principles, and accompanied by such firm’s report and opinion prepared in accordance with generally accepted auditing standards and shall be unqualified and shall express no doubts, assumptions or qualifications concerning the ability of Borrower and its subsidiaries to continue as a going concern;
(b) not later than 45 days after and as of the end of each fiscal quarter, consolidated and consolidating financial statements of Borrower and its subsidiaries, prepared by Borrower, to include a balance sheet and the related statements of income or operations, changes in shareholders’ equity and cash flows, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year, prepared in accordance with generally accepted accounting principles;
(c) contemporaneously with each annual and quarterly financial statements of Borrower and its subsidiaries required hereby, a certificate of the president, chief executive officer or chief financial officer of Borrower that said financial statements are accurate, that demonstrate compliance, in reasonable detail, with the financial condition covenants set forth in Section 4.9 of this Agreement and the covenant set forth in Section 4.12(c) of this Agreement, that the representations and warranties of Borrower and any of its subsidiaries contained herein and in each of the other Loan Documents are true on and as of the date of such certificate, with the same effect as though such representations and warranties had been made on and as of such date except to the extent that any representation or warranty specifically refers to an earlier date, in which case such representation or warranty shall be true as of such earlier date, and that there exists no Event of Default nor any condition, act or event which with the giving of notice or the passage of time or both would constitute an Event of Default;
(d) not later than 30 days after the end of each fiscal year, in the form previously provided to Bank, a consolidated and consolidating financial forecast for the following fiscal year through the maturity date of the Line of Credit, including forecasted balance sheets and statements of income or operations, changes in shareholders’ equity and cash flows, together with an explanation of the assumptions on which such forecasts are based; and
(e) from time to time such other information as Bank may reasonably request.
SECTION 4.4. COMPLIANCE. Preserve, possess and maintain all licenses, permits, consents, governmental approvals, rights, privileges and franchises necessary for the conduct of its business and rights to all trademarks, trade names, patents, and fictitious names, if any,
 
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necessary to enable it to conduct the business in which it is engaged in compliance with applicable law; and comply with the provisions of all documents pursuant to which Borrower or any of its subsidiaries is organized and/or which govern Borrower’s or such subsidiary’s continued existence and with the requirements of all laws, rules, regulations and orders of any governmental authority applicable to Borrower, such subsidiary and/or its or their business.
SECTION 4.5. INSURANCE. Maintain and keep in force, for each business in which Borrower or any of its subsidiaries is engaged, insurance of the types and in amounts customarily carried in similar lines of business, including but not limited to fire, extended coverage, public liability, flood, property damage and workers’ compensation, with all such insurance carried with companies and in amounts satisfactory to Bank, and deliver to Bank from time to time at Bank’s request schedules setting forth all insurance then in effect.
SECTION 4.6. FACILITIES. Keep all properties useful or necessary to Borrower’s or any of its subsidiaries’ business in good repair and condition, and from time to time make necessary repairs, renewals and replacements thereto so that such properties shall be fully and efficiently preserved and maintained.
SECTION 4.7. TAXES AND OTHER LIABILITIES. Pay and discharge when due any and all indebtedness, obligations, assessments and taxes, both real or personal, including without limitation federal and state income taxes and state and local property taxes and assessments, except (a) such as Borrower or any of its subsidiaries may in good faith contest or as to which a bona fide dispute may arise, and for which Borrower or such subsidiary has made provision, to Bank’s satisfaction, for eventual payment thereof in the event Borrower or such subsidiary is obligated to make such payment, or (b) in the case of unpaid taxes and assessments other than federal and state taxes and assessments, to the extent such unpaid taxes and assessments do not exceed $50,000 individually or $100,000 in the aggregate.
SECTION 4.8. LITIGATION. Promptly give notice in writing to Bank of any litigation pending or threatened against Borrower or any subsidiary with a claim in excess of $100,000.
SECTION 4.9. FINANCIAL CONDITION. Maintain the financial condition of Borrower and its subsidiaries as follows using generally accepted accounting principles consistently applied and used consistently with prior practices (except to the extent modified by the definitions herein):
(a) Net income after taxes of Borrower and its subsidiaries on a consolidated basis not less than the correlative amount indicated below as of the last day of the most recently ended fiscal quarter set forth below, determined on a quarterly basis:

Period	  	Minimum Amount	 	
Fiscal quarter ending December 31, 2011	  	$	8,000,000	  	
Fiscal quarter ending March 31, 2012	  	$	2,900,000	  	
Fiscal quarter ending June 30, 2012	  	$	4,500,000	  	
Fiscal quarter ending September 30, 2012	  	$	2,700,000	  	
 
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(b) Total Liabilities divided by Tangible Net Worth not greater than 1.25 to 1.0 as of the last day of the most recently ended fiscal quarter, with “ Total Liabilities ” defined as the aggregate of current liabilities and non-current liabilities of Borrower and its subsidiaries on a consolidated basis, and with “ Tangible Net Worth ” defined as the aggregate of total stockholders’ equity of Borrower and its subsidiaries on a consolidated basis less any intangible assets of Borrower and its subsidiaries on a consolidated basis and less any loans or advances to, or investments in, any related entities or individuals by Borrower or any of its subsidiaries on a consolidated basis.
(c) Unrestricted cash and unrestricted readily marketable cash equivalents with maturities less than one year of Borrower or any guarantor hereunder, all held at Bank and Bank’s affiliates in the United States, not subject to any lien other than a lien in favor of Bank, and not pledged to or held by Bank to secure a specified obligation, not less than $10,000,000 at any time.
SECTION 4.10. NOTICE TO BANK. Promptly (but in no event more than five (5) business days after the occurrence of each such event or matter or in the case of clause (a) below after any officer of Borrower obtains knowledge of the occurrence of each event or matter described in such clause (a)) give written notice to Bank in reasonable detail of: (a) the occurrence of any Event of Default, or any condition, event or act which with the giving of notice or the passage of time or both would constitute an Event of Default; (b) any change in the name or the organizational structure of Borrower or any subsidiary of Borrower; (c) the occurrence and nature of any Reportable Event or Prohibited Transaction, each as defined in ERISA, or any similar event with respect to any Foreign Plan, or any funding deficiency with respect to any Plan or any Foreign Plan; or (d) any termination or cancellation of any insurance policy which Borrower or any subsidiary of Borrower is required to maintain, or any uninsured or partially uninsured loss through liability or property damage, or through fire, theft or any other cause affecting property of Borrower or any subsidiary of Borrower in excess of an aggregate of $100,000.
SECTION 4.11. BANKING RELATIONSHIP. Maintain, and cause all of its subsidiaries to maintain, all of its and their respective primary depository and operating accounts and all of its and their treasury management business with Bank. Notwithstanding the foregoing, Borrower and its subsidiaries may maintain depository and operating accounts and treasury management business with other banks and other financial institutions in non-U.S. jurisdictions where Borrower, in its good faith business judgment, believes such arrangements will contribute to the efficiency of the operations of Borrower or any of its subsidiaries; provided that Borrower shall notify Bank prior to opening of each such account or establishing such treasury management business, and, at Bank’s request, Borrower shall cause the applicable bank or financial institution at or with which any such account or treasury management business is maintained to execute and deliver a control agreement or other appropriate instrument to perfect Bank’s lien in such account or other property of Borrower or any guarantor hereunder in accordance with the terms of the Loan Documents.
 
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SECTION 4.12. NEW SUBSIDIARIES.
(a) Domestic Subsidiaries . From and after the date hereof, if Borrower or any of its subsidiaries acquires or creates any Domestic Subsidiary that is a Material Subsidiary, promptly, and in no event later than ten (10) business days after such acquisition or creation, notify Bank of that fact and cause such Domestic Subsidiary to execute and deliver to Bank a guaranty and a counterpart of the security agreements and other security documents and to take all such further actions and execute all such further documents and instruments (including actions, documents and instruments comparable to those described in Section 3.1(b)) as may be, in the opinion of Bank, necessary or desirable to have such Domestic Subsidiary as a guarantor and to create in favor of Bank a valid and perfected first priority lien in all of the Collateral of such Domestic Subsidiary. In addition, for each such Domestic Subsidiary, Borrower shall deliver to Bank a pledge agreement or a pledge supplement thereto and any other documents and instruments requested by Bank, in form and substance satisfactory to Bank.
(b) Foreign Subsidiaries . From and after the date hereof, if Borrower or its Domestic Subsidiary acquires or creates any Foreign Subsidiary that is a Material Subsidiary, promptly, and in no event later than ten (10) business days after such acquisition or creation, notify Bank of that fact and execute and deliver, or cause such Domestic Subsidiary to execute and deliver, to Bank a pledge agreement or a pledge supplement thereto and to take all such further actions and execute all such further documents and instruments (including actions, documents and instruments comparable to those described in Section 3.1(b) and including under the laws of the jurisdictions of formation of such Foreign Subsidiaries) as may be, in the opinion of Bank, necessary or desirable to create in favor of Bank a valid and perfected first priority lien on the equity interests in such Foreign Subsidiary. For the avoidance of doubt, no Foreign Subsidiary shall be required to execute and deliver a guaranty or any security agreement, and no equity interests of a Foreign Subsidiary shall be required to be pledged pursuant to the provisions of a pledge agreement, in each case to the extent material adverse tax consequences to Borrower could reasonably be expected to result therefrom, it being understood and agreed that a pledge by Borrower or its Domestic Subsidiary of 65% of the voting power of all classes of the equity interests of a Foreign Subsidiary will not cause material adverse tax consequences to Borrower. “ Foreign Subsidiary ” means any subsidiary of Borrower that is not a Domestic Subsidiary.
(c) Revenues and Assets Tests . Cause (i) the consolidated revenues of Borrower, the guarantors hereunder and the Foreign Subsidiaries the equity interests of which have been pledged to Bank hereunder as of the end of the most recently ended fiscal quarter to equal to at least 90% of the consolidated revenues of Borrower and its subsidiaries as of the end of such fiscal quarter, and (ii) the consolidated assets of Borrower, the guarantors hereunder and the Foreign Subsidiaries the equity interests of which have been pledged to Bank hereunder as of the end of the most recently ended fiscal quarter to equal to at least 90% of the consolidated assets of Borrower and its subsidiaries as of the end of such fiscal quarter.
ARTICLE VARTICLE V
NEGATIVE COVENANTS
Borrower further covenants that from the date hereof and until all of the following shall have occurred: (a) all of Bank’s commitments to extend credit to Borrower pursuant hereto have
 
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terminated, (b) all indebtedness and liabilities (whether direct or contingent, liquidated or unliquidated, other than contingent indemnification obligations) of Borrower and any guarantor to Bank under any of the Loan Documents have been indefeasibly paid in full in cash, and (c) all Letters of Credit have terminated or expired (other than Letters of Credit that have been cash collateralized pursuant to the terms hereof), Borrower will not, and will not permit any of its subsidiaries to, without Bank’s prior written consent:
SECTION 5.1. USE OF FUNDS. Use any of the proceeds of any credit extended hereunder except for the purposes stated in Article I hereof.
SECTION 5.2. CAPITAL EXPENDITURES. Make any additional investment in fixed assets (a) in the fiscal year ending December 31, 2011 in excess of an aggregate of $6,000,000 and (b) in the fiscal year ending December 31, 2012 in excess of an aggregate of $15,000,000.
SECTION 5.3. OTHER INDEBTEDNESS. Create, incur, assume or permit to exist any indebtedness, obligations or liabilities resulting from borrowings, loans or advances, whether secured or unsecured, matured or unmatured, liquidated or unliquidated, joint or several, except (a) the indebtedness, obligations or liabilities of Borrower or any of its subsidiaries to Bank, (b) the indebtedness, obligations or liabilities existing on the date hereof and listed on Schedule 5.3 attached hereto and any refinancings, renewals or extensions thereof; provided that the amount of such indebtedness, obligations and liabilities is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing, renewal or extension; (c) indebtedness, obligations or liabilities in respect of capitalized leases and purchase money obligations for fixed or capital assets within the limitations set forth in Section 5.8(d); provided , that the aggregate amount of all such indebtedness, obligations and liabilities at any one time outstanding shall not exceed $2,000,000; (d) trade accounts payable in the ordinary course of business and not past due for more than sixty (60) days after the date on which such trade account was created; (e) indebtedness, obligations or liabilities of Borrower or any of its subsidiaries to Borrower or any of its subsidiaries; provided that (i) such indebtedness, obligations and liabilities shall not have been transferred to any person or entity other than Borrower or any of its subsidiaries, (ii) any such indebtedness, obligations and liabilities owing by Borrower or any guarantor hereunder to any subsidiary that is not a guarantor hereunder shall be unsecured and subordinated in right of payment to the obligations under the Loan Documents on terms satisfactory to Bank, (iii) any such indebtedness, obligations and liabilities owing to Borrower or any guarantor hereunder shall be evidenced by a promissory note that shall have been pledged to Bank pursuant to the Loan Documents, and (iv) any such indebtedness, obligations and liabilities owing by any subsidiary that is not a guarantor hereunder to Borrower or any guarantor hereunder shall be incurred in compliance with Section 5.6(b), and (f) any other indebtedness, obligations or liabilities of Borrower or any of its subsidiaries the aggregate principal amount of which is not in excess of $500,000 outstanding at any time.
SECTION 5.4. MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into, dissolve, liquidate, reorganize, recapitalize or consolidate with any other entity; make any
 
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substantial change in the nature of Borrower’s business as conducted as of the date hereof; acquire all or substantially all of the assets of any other entity or any business unit thereof; nor sell, lease, transfer or otherwise dispose of all or a substantial or material portion of assets of Borrower or any of its subsidiaries except in the ordinary course of its business.
SECTION 5.5. GUARANTIES. Guarantee or become liable in any way as surety, endorser (other than as endorser of negotiable instruments for deposit or collection in the ordinary course of business), accommodation endorser or otherwise for, nor pledge or hypothecate any assets of Borrower or any of its subsidiaries as security for, any liabilities or obligations of any other person or entity, except any of the foregoing in favor of Bank.
SECTION 5.6. LOANS, ADVANCES, INVESTMENTS. Make any loans or advances to or investments in any person or entity, except (a) any loans, advances or investments existing as of the date hereof and disclosed in Schedule 5.6 attached hereto, (b) loans or advances to, or investments in, Borrower’s wholly-owned subsidiaries not to exceed an aggregate of $5,000,000 from the date hereof, and (c) loans or advances to shareholders or employees of Borrower in amounts not to exceed an aggregate of $500,000 outstanding at any one time.
SECTION 5.7. DIVIDENDS, DISTRIBUTIONS. Declare or pay any dividend or distribution either in cash, stock or any other property on the stock of Borrower or any of its subsidiaries now or hereafter outstanding, nor redeem, retire, repurchase or otherwise acquire any shares of any class of stock of Borrower or any of its subsidiaries now or hereafter outstanding except (a) any subsidiary of Borrower may declare and pay dividends or distributions with respect to its stock to Borrower or another wholly-owned subsidiary of Borrower that is a holder of such stock, (b) Borrower may repurchase the stock of former employees, directors, officers or consultants pursuant to stock repurchase plans and similar agreements in amounts not to exceed an aggregate of $100,000 per fiscal year so long as an Event of Default does not exist at the time of such repurchase and would result therefrom; (c) Borrower may make noncash repurchases of Borrower’s stock deemed to occur upon exercise of stock options if such stock represents a portion of the exercise price of, and any required tax withholdings in respect of, such options, so long as the amount of such required tax withholdings together with repurchases permitted pursuant to clause (b) hereunder do not exceed an aggregate of $100,000 per fiscal year; and (d) Borrower may make payments pursuant to the mandatory redemption provisions set forth in Borrower’s Articles of Incorporation as in effect on the date hereof, or as such provisions may be amended after the date hereof with Bank’s prior written consent.
SECTION 5.8. PLEDGE OF ASSETS. Mortgage, pledge, grant or permit to exist a security interest in, or lien upon, all or any portion of assets of Borrower or any of its subsidiaries now owned or hereafter acquired, except for Permitted Liens. “ Permitted Liens ” means the following: (a) any liens existing as of the date hereof and listed on Schedule 5.8 attached hereto; (b) any security interests and liens in favor of Bank; (c) liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of Borrower or the applicable subsidiary of Borrower in accordance with generally accepted accounting principles; (d) liens securing indebtedness permitted under Section 5.3(c); provided that (i) such liens do not at any time encumber any property other than
 
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the property financed by such indebtedness and (ii) the indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition; (e) deposits to secure the performance of real property lease obligations incurred in the ordinary course of business; and (f) liens incurred in connection with the extension, renewal or refinancing of the indebtedness secured by liens permitted by clause (a) above, provided that any extension, renewal or replacement lien shall be limited to the property encumbered by the existing lien, the principal amount of the indebtedness being extended, renewed or refinanced does not increase, and there shall be no change in any direct or contingent obligor with respect to such indebtedness.
SECTION 5.9. SALES AND LEASEBACKS. Directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired that Borrower or any of its subsidiaries has sold or transferred or is to sell or transfer to any other person or entity (other than any such transaction between Borrower and any guarantor hereunder) or that Borrower or any of its subsidiaries intends to use for substantially the same purpose as any other property that has been or is to be sold or transferred by Borrower or any of its subsidiaries to any person or entity (other than any such transaction between Borrower and any guarantor hereunder) in connection with such lease; provided that Borrower and its subsidiaries may become and remain liable as lessee, guarantor or other surety with respect to any such lease if and to the extent that (a) Borrower or any of its subsidiaries would be permitted to enter into, and remain liable under, such lease to the extent that the transaction would be permitted under Section 5.3(c), assuming the sale and lease back transaction constituted indebtedness in a principal amount equal to the gross proceeds of the sale; (b) any liens arising in connection therewith (including liens deemed to arise in connection with any such indebtedness) are permitted under Section 5.8(d) and (c) the sale or transfer of the property thereunder is permitted under Section 5.4.
SECTION 5.10. TRANSACTIONS WITH AFFILIATES. (a) Enter into any transaction of any kind with any shareholder or affiliate of Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to Borrower or the applicable subsidiary of Borrower as would be obtainable by Borrower or such subsidiary at the time in a comparable arm’s length transaction with a person other than an affiliate, or (b) pay any management, consulting, financing, development or any other fees to any affiliate of Borrower regardless of the accounting treatment of any such payments.
SECTION 5.11. BURDENSOME AGREEMENTS. Enter into any contract, obligation, indenture or other instrument to which Borrower or any subsidiary of Borrower is a party or by which Borrower or such subsidiary may be bound (other than this Agreement and the other Loan Documents) that (a) limits the ability (i) of any subsidiary of Borrower to make any dividends or distributions to Borrower or to otherwise transfer property to Borrower, (ii) of any subsidiary of Borrower to guarantee the indebtedness of Borrower or (iii) of Borrower or any subsidiary of Borrower to create, incur, assume or suffer to exist liens or encumbrances on property of such entity; or (b) requires the grant of a lien to secure an obligation of Borrower or any subsidiary of Borrower if a lien is granted to secure another obligation of Borrower or such subsidiary.
SECTION 5.12. FISCAL YEAR. Change its fiscal year-end from December 31.
 
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SECTION 5.13. AMENDMENTS OF ORGANIZATION DOCUMENTS. Amend or otherwise modify any of its Organization Documents in any manner that would adversely affect the rights and interests of Bank; provided that Bank shall be notified in writing of any permitted amendment or other modification within thirty (30) days of its effectiveness. “ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership, trust or other form of business entity, the partnership, or other applicable agreement of formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable governmental authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. THE OCCURRENCE OF ANY OF THE FOLLOWING SHALL CONSTITUTE AN “EVENT OF DEFAULT”:
(a) Borrower or any guarantor hereunder shall fail to pay when due any principal, interest, fees or other amounts payable under any of the Loan Documents.
(b) Any financial statement or certificate furnished to Bank in connection with, or any representation or warranty made or deemed made by Borrower or any of its subsidiaries under this Agreement or any other Loan Document shall prove to be incorrect or misleading in any material respect when furnished or made or deemed made.
(c) Any default in the performance of or compliance with any obligation, agreement or other provision contained herein or in any other Loan Document (other than those specifically described as an “Event of Default” in this Section 6.1), and with respect to any such default that by its nature can be cured, such default shall continue for a period of twenty (20) days after the earlier of (i) a Responsible Officer of Borrower or any guarantor hereunder first becoming aware of such default or (ii) receipt by Borrower or any guarantor hereunder of notice from Bank of such default. “ Responsible Officer ” means the chief executive officer, president, chief operating officer, chief financial officer, controller, a vice president, treasurer, general partner (if an individual), managing member (if an individual) or other individual appointed by the governing body or the Organization Documents of a corporation, partnership, trust, limited liability company or other entity to serve in a similar capacity as the foregoing.
(d) (i) Any default in the payment of any obligation, or any defined event of default consisting of a failure to pay when due of any obligation, under the terms of any contract, instrument or document (other than any of the Loan Documents) pursuant to which Borrower, any guarantor hereunder or any other Material Subsidiary (each such guarantor and other Material Subsidiary, a “ Third Party Obligor ”) has incurred (x) any debt or other liability to Bank
 
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or (y) any debt or other liability to any other person or entity with a principal amount of $2,000,000 or more, individually or in the aggregate; or (ii) any default in the performance of any other obligation, or any other defined event of default, under the terms of any contract, instrument or document (other than any of the Loan Documents) pursuant to which Borrower or any Third Party Obligor has incurred (x) any debt or other liability to Bank or (y) any debt or other liability to any other person or entity with a principal amount of $2,000,000 or more, individually or in the aggregate, if, in the case of clause (ii) only, the effect of such default is to cause, or to permit the holder or holders of that debt or liability to cause, that debt or liability to become or be declared due and payable prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be (upon the giving or receiving of notice, lapse of time, both, or otherwise).
(e) Borrower or any Third Party Obligor shall become insolvent, or shall suffer or consent to or apply for the appointment of a receiver, trustee, custodian or liquidator of itself or any of its property, or shall generally fail to pay its debts as they become due, or shall make a general assignment for the benefit of creditors; Borrower or any Third Party Obligor shall file a voluntary petition in bankruptcy, or seeking reorganization, in order to effect a plan or other arrangement with creditors or any other relief under the Bankruptcy Reform Act, Title 11 of the United States Code, as amended or recodified from time to time (the “ Bankruptcy Code ”), or under any state, federal or foreign law granting relief to debtors, whether now or hereafter in effect; or Borrower or any Third Party Obligor shall file an answer admitting the jurisdiction of the court and the material allegations of any involuntary petition; or Borrower or any Third Party Obligor shall be adjudicated a bankrupt, or an order for relief shall be entered against Borrower or any Third Party Obligor by any court of competent jurisdiction under the Bankruptcy Code or any other applicable state, federal or foreign law relating to bankruptcy, reorganization or other relief for debtors.
(f) (i) The filing of a notice of judgment lien against Borrower or any Third Party Obligor; or (ii) the recording of any abstract of judgment against Borrower or any Third Party Obligor in any county in which Borrower or such Third Party Obligor has an interest in real property; or (iii) the service of a notice of levy and/or of a writ of attachment or execution, or other like process, against the assets of Borrower or any Third Party Obligor; or (iv) the entry of a judgment against Borrower or any Third Party Obligor; or (v) any involuntary petition or proceeding pursuant to the Bankruptcy Code or any other applicable state, federal or foreign law relating to bankruptcy, reorganization or other relief for debtors is filed or commenced against Borrower or any Third Party Obligor.
(g) The death or incapacity of Borrower or any Third Party Obligor if an individual. The dissolution or liquidation of Borrower or any Third Party Obligor if a corporation, partnership, joint venture or other type of entity; or Borrower or any such Third Party Obligor, or any of its directors, stockholders or members, shall take action seeking to effect the dissolution or liquidation of Borrower or such Third Party Obligor.
(h) Any change in control of Borrower or any entity or combination of entities that directly or indirectly control Borrower, with “control” defined as ownership of an aggregate of twenty-five percent (25%) or more of the common stock, members’ equity or other ownership interest (other than a limited partnership interest).
 
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(i) Any Loan Document, at any time after its execution and delivery for any reason other than satisfaction in full of all the obligations under the Loan Documents, ceases to be in full force and effect; or Borrower or any guarantor hereunder contests in any manner the validity or enforceability of any Loan Document; or Borrower or any guarantor hereunder denies that it has any further liability or obligation under any Loan Document or purports to revoke, terminate or rescind any Loan Document.
(j) The occurrence of any Reportable Event or Prohibited Transaction, each as defined in ERISA, or similar events in respect of any Foreign Plans, or any funding deficiency with respect to any Plan or any Foreign Plan, which has resulted or could reasonably be expected to result in liability of Borrower, any of its subsidiaries or any of their respective ERISA Affiliates in excess of $500,000 in the aggregate, or Borrower, any of its subsidiaries or any of their respective ERISA Affiliates 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 any Plan and similar liabilities with respect to Foreign Plans in an aggregate amount in excess of the $500,000. “ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with Borrower within the meaning of Section 414(b) or (c) of the Internal Revenue Code of 1986 (and Sections 414(m) and (o) of the Internal Revenue Code of 1986 for purposes of provisions relating to Section 412 of the Internal Revenue Code of 1986).
(k) Bank shall not have or shall cease to have a valid and perfected first priority lien in the Collateral purported to be covered by the Loan Documents as required by Section 1.4 except as a result of (i) a sale or transfer of the applicable Collateral in a transaction permitted under this Agreement, or (ii) Bank’s failure to maintain possession of any stock certificate, promissory note or other instrument pledged and delivered to it under the Loan Documents or to file a UCC continuation statement.
(l) There occurs any event or circumstance that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
SECTION 6.2. REMEDIES. (a) Upon the occurrence of any Event of Default described in Section 6.1(e) or 6.1(f)(v), (i) all indebtedness of Borrower under each of the Loan Documents, any term thereof to the contrary notwithstanding, shall, without notice, become immediately due and payable without presentment, demand, protest or notice of dishonor, all of which are hereby expressly waived by Borrower; (ii) the obligation, if any, of Bank to extend any further credit under any of the Loan Documents shall immediately cease and terminate; and (iii) Bank shall have all rights, powers and remedies available under each of the Loan Documents, or accorded by law, including without limitation the right to resort to any or all security for any credit subject hereto and to exercise any or all of the rights of a beneficiary or secured party pursuant to applicable law, and (b) upon the occurrence and during the continuance of any other Event of Default, (i) all indebtedness of Borrower under each of the Loan Documents, any term thereof to the contrary notwithstanding, shall at Bank’s option and without notice become immediately due and payable without presentment, demand, protest or notice of dishonor, all of which are hereby expressly waived by Borrower; (ii) the obligation, if any, of Bank to extend any further credit under any of the Loan Documents shall immediately cease and terminate; and (iii) Bank shall have all rights, powers and remedies available under each of the
 
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Loan Documents, or accorded by law, including without limitation the right to resort to any or all security for any credit subject hereto and to exercise any or all of the rights of a beneficiary or secured party pursuant to applicable law. All rights, powers and remedies of Bank may be exercised at any time by Bank and from time to time after the occurrence of an Event of Default described in Section 6.1(e) or 6.1(f)(v) or after the occurrence and during the continuance of any other Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. NO WAIVER. No delay, failure or discontinuance of Bank in exercising any right, power or remedy under any of the Loan Documents shall affect or operate as a waiver of such right, power or remedy; nor shall any single or partial exercise of any such right, power or remedy preclude, waive or otherwise affect any other or further exercise thereof or the exercise of any other right, power or remedy. Any waiver, permit, consent or approval of any kind by Bank of any breach of or default under any of the Loan Documents must be in writing and shall be effective only to the extent set forth in such writing.
SECTION 7.2. NOTICES. All notices, requests and demands which any party is required or may desire to give to any other party under any provision of this Agreement must be in writing delivered to each party at the following address:

BORROWER:	  	WOODMAN LABS, INC.	
	  	2450 Cabrillo Hwy South	
	  	Suite 250	
	  	Half Moon Bay, CA 941019	
	  	Attention: Kurt Amundson, Chief Financial Officer	
	  	Facsimile: (480) 275-3094	
	  	Email: kamundson@gopro.com	
		
BANK:	  	WELLS FARGO BANK, NATIONAL ASSOCIATION	
	  	400 Hamilton Avenue	
	  	Suite 110	
	  	Palo Alto, CA 94301	
	  	Attention: Ken Edens	
	  	Facsimile: (650) 328-0814	
	  	Email: Kenneth.L.Edens@wellsfargo.com	
or to such other address as any party may designate by written notice to all other parties. Each such notice, request and demand shall be deemed given or made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by mail, upon the earlier of the date of receipt or three (3) days after deposit in the U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon receipt.
SECTION 7.3. COSTS, EXPENSES AND ATTORNEYS’ FEES; INDEMNIFICATION. Borrower shall pay to Bank immediately upon demand the full amount
 
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of all payments, advances, charges, costs and expenses, including reasonable attorneys’ fees (to include outside counsel fees and all allocated costs of Bank’s in-house counsel), expended or incurred by Bank in connection with (a) the negotiation and preparation of this Agreement and the other Loan Documents, Bank’s continued administration hereof and thereof, and the preparation of any amendments and waivers hereto and thereto, (b) the enforcement of Bank’s rights and/or the collection of any amounts which become due to Bank under any of the Loan Documents, and (c) the prosecution or defense of any action in any way related to any of the Loan Documents, including without limitation, any action for declaratory relief, whether incurred at the trial or appellate level, in an arbitration proceeding or otherwise, and including any of the foregoing incurred in connection with any bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or motion brought by Bank or any other person) relating to Borrower or any other person or entity. Borrower shall indemnify Bank and Bank’s affiliates and the partners, directors, officers, employees, agents, trustees and advisors of Bank and of Bank’s affiliates (each, an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Borrower arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or the administration of this Agreement and the other Loan Documents, (ii) any credit extended hereunder or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of hazardous materials on or from any property owned or operated by Borrower, or any environmental liability related in any way to Borrower, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower, 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 or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by Borrower against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
SECTION 7.4. SUCCESSORS, ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, legal representatives, successors and assigns of the parties; provided however, that Borrower may not assign or transfer its interests or rights hereunder without Bank’s prior written consent. Bank reserves the right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, Bank’s rights and benefits under each of the Loan Documents. In connection therewith, Bank may disclose all documents and information which Bank now has or may hereafter acquire relating to any credit subject hereto, Borrower or its business, any guarantor hereunder or the business of such guarantor, or any Collateral required hereunder.
 
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SECTION 7.5. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other Loan Documents constitute the entire agreement between Borrower and Bank with respect to each credit subject hereto and supersede all prior negotiations, communications, discussions and correspondence concerning the subject matter hereof. This Agreement may be amended or modified only in writing signed by each party hereto.
SECTION 7.6. NO THIRD PARTY BENEFICIARIES. This Agreement is made and entered into for the sole protection and benefit of the parties hereto and their respective permitted successors and assigns, and no other person or entity shall be a third party beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement or any other of the Loan Documents to which it is not a party.
SECTION 7.7. TIME. Time is of the essence of each and every provision of this Agreement and each other of the Loan Documents.
SECTION 7.8. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or any remaining provisions of this Agreement.
SECTION 7.9. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original, and all of which when taken together shall constitute one and the same Agreement.
SECTION 7.10. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
SECTION 7.11. ARBITRATION.
(a) Arbitration . The parties hereto agree, upon demand by any party, to submit to binding arbitration all claims, disputes and controversies between or among them (and their respective employees, officers, directors, attorneys, and other agents), whether in tort, contract or otherwise in any way arising out of or relating to (i) any credit subject hereto, or any of the Loan Documents, and their negotiation, execution, collateralization, administration, repayment, modification, extension, substitution, formation, inducement, enforcement, default or termination; or (ii) requests for additional credit.
(b) Governing Rules . Any arbitration proceeding will (i) proceed in a location in California selected by the American Arbitration Association (“ AAA ”); (ii) be governed by the Federal Arbitration Act (Title 9 of the United States Code), notwithstanding any conflicting choice of law provision in any of the documents between the parties; and (iii) be conducted by the AAA, or such other administrator as the parties shall mutually agree upon, in accordance with the AAA’s commercial dispute resolution procedures, unless the claim or counterclaim is at least $1,000,000 exclusive of claimed interest, arbitration fees and costs in which case the arbitration shall be conducted in accordance with the AAA’s optional procedures for large, complex commercial disputes (the commercial dispute resolution procedures or the optional procedures for large, complex commercial disputes to be referred to herein, as applicable, as the “Rules”). If there is any inconsistency between the terms hereof and the Rules, the terms and
 
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procedures set forth herein shall control. Any party who fails or refuses to submit to arbitration following a demand by any other party shall bear all costs and expenses incurred by such other party in compelling arbitration of any dispute. Nothing contained herein shall be deemed to be a waiver by any party that is a bank of the protections afforded to it under 12 U.S.C. §91 or any similar applicable state law.
(c) No Waiver of Provisional Remedies, Self-Help and Foreclosure . The arbitration requirement does not limit the right of any party to (i) foreclose against real or personal property collateral; (ii) exercise self-help remedies relating to collateral or proceeds of collateral such as setoff or repossession; or (iii) obtain provisional or ancillary remedies such as replevin, injunctive relief, attachment or the appointment of a receiver, before during or after the pendency of any arbitration proceeding. This exclusion does not constitute a waiver of the right or obligation of any party to submit any dispute to arbitration or reference hereunder, including those arising from the exercise of the actions detailed in sections (i), (ii) and (iii) of this paragraph.
(d) Arbitrator Qualifications and Powers . Any arbitration proceeding in which the amount in controversy is $5,000,000 or less will be decided by a single arbitrator selected according to the Rules, and who shall not render an award of greater than $5,000,000. Any dispute in which the amount in controversy exceeds $5,000,000 shall be decided by majority vote of a panel of three arbitrators; provided however, that all three arbitrators must actively participate in all hearings and deliberations. The arbitrator will be a neutral attorney licensed in the State of California or a neutral retired judge of the state or federal judiciary of California, in either case with a minimum of ten years experience in the substantive law applicable to the subject matter of the dispute to be arbitrated. The arbitrator will determine whether or not an issue is arbitratable and will give effect to the statutes of limitation in determining any claim. In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at the arbitrator’s discretion) any pre-hearing motions which are similar to motions to dismiss for failure to state a claim or motions for summary adjudication. The arbitrator shall resolve all disputes in accordance with the substantive law of California and may grant any remedy or relief that a court of such state could order or grant within the scope hereof and such ancillary relief as is necessary to make effective any award. The arbitrator shall also have the power to award recovery of all costs and fees, to impose sanctions and to take such other action as the arbitrator deems necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the California Rules of Civil Procedure or other applicable law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief.
(e) Discovery . In any arbitration proceeding, discovery will be permitted in accordance with the Rules. All discovery shall be expressly limited to matters directly relevant to the dispute being arbitrated and must be completed no later than 20 days before the hearing date. Any requests for an extension of the discovery periods, or any discovery disputes, will be subject to final determination by the arbitrator upon a showing that the request for discovery is essential for the party’s presentation and that no alternative means for obtaining information is available.
 
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(f) Class Proceedings and Consolidations . No party hereto shall be entitled to join or consolidate disputes by or against others in any arbitration, except parties who have executed any Loan Document, or to include in any arbitration any dispute as a representative or member of a class, or to act in any arbitration in the interest of the general public or in a private attorney general capacity.
(g) Payment Of Arbitration Costs And Fees . The arbitrator shall award all costs and expenses of the arbitration proceeding.
(h) Real Property Collateral; Judicial Reference . Notwithstanding anything herein to the contrary, no dispute shall be submitted to arbitration if the dispute concerns indebtedness secured directly or indirectly, in whole or in part, by any real property unless (i) the holder of the mortgage, lien or security interest specifically elects in writing to proceed with the arbitration, or (ii) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of the single action rule statute of California, thereby agreeing that all indebtedness and obligations of the parties, and all mortgages, liens and security interests securing such indebtedness and obligations, shall remain fully valid and enforceable. If any such dispute is not submitted to arbitration, the dispute shall be referred to a referee in accordance with California Code of Civil Procedure Section 638 et seq., and this general reference agreement is intended to be specifically enforceable in accordance with said Section 638. A referee with the qualifications required herein for arbitrators shall be selected pursuant to the AAA’s selection procedures. Judgment upon the decision rendered by a referee shall be entered in the court in which such proceeding was commenced in accordance with California Code of Civil Procedure Sections 644 and 645.
(i) Miscellaneous . To the maximum extent practicable, the AAA, the arbitrators and the parties shall take all action required to conclude any arbitration proceeding within 180 days of the filing of the dispute with the AAA. No arbitrator or other party to an arbitration proceeding may disclose the existence, content or results thereof, except for disclosures of information by a party required in the ordinary course of its business or by applicable law or regulation. If more than one agreement for arbitration by or between the parties potentially applies to a dispute, the arbitration provision most directly related to the Loan Documents or the subject matter of the dispute shall control. This arbitration provision shall survive termination, amendment or expiration of any of the Loan Documents or any relationship between the parties.
(j) Small Claims Court . Notwithstanding anything herein to the contrary, each party retains the right to pursue in Small Claims Court any dispute within that court’s jurisdiction. Further, this arbitration provision shall apply only to disputes in which either party seeks to recover an amount of money (excluding attorneys’ fees and costs) that exceeds the jurisdictional limit of the Small Claims Court.
SECTION 7.12. LIMITATION ON PAYMENTS. The parties hereto intend to conform to all applicable laws limiting the maximum rate of interest that may be charged or collected by Bank from Borrower under this Agreement or any of the other Loan Documents. Accordingly, notwithstanding any other provision hereof or any provisions of any other Loan Documents, Borrower shall not be required to make any payment to or for the account of Bank, and Bank shall refund any payment made by Borrower, to the extent that such requirement or such failure
 
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to refund would violate or conflict with mandatory and nonwaivable provisions of applicable law limiting the maximum amount of interest which may be charged or collected by Bank from Borrower. To the fullest extent permitted by law, in any action, suit or proceeding pertaining to this Agreement or any other Loan Document, the burden of proof, by clear and convincing evidence, shall be on the person claiming that this Section 7.12 applies to limit any obligation of Borrower under this Agreement or any other Loan Documents or to require Bank to make any refund, or claiming that this Agreement or any other Loan Document conflicts with any applicable law limiting the maximum rate of interest that may be charged or collected by Bank from Borrower, as to each element of such claim.
SECTION 7.13. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by Bank, regardless of any investigation made by Bank or on its behalf and notwithstanding that Bank may have had notice or knowledge of any Event of Default, or of any condition, event or act which with the giving of notice or the passage of time or both would constitute such an Event of Default, at the time of any extension of credit by Bank pursuant to this Agreement, and shall continue in full force and effect as long as any advance, liability or other obligation of Borrower or any guarantor arising under any Loan Document or otherwise with respect to any advance made hereunder or any Letter of Credit shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
(b) Notwithstanding anything in this Agreement or implied by law to the contrary, the provisions of this Agreement or any other Loan Documents with respect to Borrower’s obligations to compensate, indemnify or reimburse Bank, Bank’s set-off rights, and arbitration 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 of Bank or the termination of this Agreement, any other Loan Document or any provision hereof or thereof.
SECTION 7.14. TERMINATION. This Agreement shall terminate upon the indefeasible payment in full in cash of all indebtedness and liabilities (whether direct or contingent, liquidated or unliquidated, other than contingent indemnification obligations) of Borrower and any guarantor to Bank under any of the Loan Documents, the cancellation or termination of all commitments of Bank to extend credit to Borrower, and the termination or expiration of all Letters of Credit (other than Letters of Credit that have been cash collateralized pursuant to the terms hereof); provided that Borrower shall notify Bank in writing at least thirty (30) days prior to this Agreement’s intended termination date.
[signatures follow]
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first written above.

WOODMAN LABS, INC.,
a Delaware corporation	
		
By:	 	/s/ Kurt Amundson	
Name:	 	Kurt Amundson	
Title:	 	CFO	
	
WELLS FARGO BANK, NATIONAL ASSOCIATION	
		
By:	 	/s/ Ken Edens	
Name:	 	Ken Edens	
Title:	 	Vice President	
Signature Page to Credit Agreement

FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of February 13, 2012, by and between WOODMAN LABS, INC., a Delaware corporation (“Borrower”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Bank”).
RECITALS
WHEREAS, Borrower is currently indebted to Bank pursuant to the terms and conditions of that certain Credit Agreement between Borrower and Bank dated as of December 27, 2011, as amended from time to time (the “Credit Agreement”).
WHEREAS, Bank and Borrower have agreed to certain changes in the terms and conditions set forth in the Credit Agreement and have agreed to amend the Credit Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree that the Credit Agreement shall be amended as follows:
1. Section 5.3 is hereby amended by deleting the words “and (f)” set forth therein and substituting the following therefor: “(f) surety obligations with respect to customs bonds required in the ordinary course of business in an aggregate amount not to exceed $1,500,000 at any time, (g) indebtedness, obligations or liabilities resulting from advances made to, or on behalf of, Borrower or any of its subsidiaries by a customs broker incurred in the ordinary course of business so long as (i) such indebtedness, obligations or liabilities are paid within thirty (30) days after the invoice or demand date, whichever is earlier, and (ii) the aggregate amount of such indebtedness, obligations and liabilities outstanding at any time does not exceed $50,000, and (h)”.
2. The definition of “Permitted Liens” set forth in Section 5.8 is hereby amended by deleting the word “and” immediately prior to clause (f) set forth therein and inserting the following text immediately prior to the period at the end thereof: “(g) liens to secure the performance by Borrower or any of its subsidiaries under customs bonds required in the ordinary course of business so long as (i) such liens are limited to the assets of Borrower or such subsidiary in the possession, custody or control of, or en route to, the applicable beneficiary on such customs bond and (ii) Borrower’s and such subsidiary’s surety obligations with respect to such customs bonds do not exceed $1,500,000 in the aggregate at any time; (h) liens to secure the indebtedness, liabilities and obligations permitted by clause (g) of Section 5.3 of this Agreement so long as such liens are limited to the assets of Borrower or the applicable subsidiary in the possession, custody or control of, or en route to, the applicable customs broker; and (i) liens 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”.

3. Except as specifically provided herein, all terms and conditions of the Credit Agreement remain in full force and effect, without waiver or modification. All terms defined in the Credit Agreement shall have the same meaning when used in this Amendment. This Amendment and the Credit Agreement shall be read together, as one document.
4. Borrower hereby remakes all representations and warranties contained in the Credit Agreement and reaffirms all covenants set forth therein. Borrower further certifies that as of the date of this Amendment there exists no Event of Default as defined in the Credit Agreement, nor any condition, act or event which with the giving of notice or the passage of time or both would constitute any such Event of Default.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day and year first written above.

WOODMAN LABS, INC., a Delaware corporation	
		
By:	 	/s/ Kurt Amundson	
Name:	 	Kurt Amundson	
Title:	 	CFO	

WELLS FARGO BANK, NATIONAL ASSOCIATION	
		
By:	 	/s/ Ken Edens	
Name:	 	Ken Edens	
Title:	 	Vice President	
 
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SECOND AMENDMENT TO CREDIT AGREEMENT
AND
LIMITED WAIVER AND CONSENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER AND CONSENT (this “ Amendment and Waiver ”) is entered into as of November 13, 2012, by and between WOODMAN LABS, INC., a Delaware corporation (“ Borrower ”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (“ Bank ”).
RECITALS
WHEREAS, Borrower is currently indebted to Bank pursuant to the terms and conditions of that certain Credit Agreement between Borrower and Bank dated as of December 27, 2011, as amended by that certain First Amendment to Credit Agreement, dated as of February 13, 2012 (the “ Credit Agreement ”);
WHEREAS, Borrower has advised Bank that (a) Woodman Labs Cayman, Inc., a company organized under the laws of the Cayman Islands and a wholly owned subsidiary of Borrower (“ Cayman Holdco ”), has become a Material Subsidiary as of June 30, 2012, and pursuant to Section 4.12(b) of the Credit Agreement, Borrower was obligated to execute and deliver to Bank a pledge agreement with respect to certain equity interests of Borrower in Cayman Holdco and to take other actions and execute other documents required thereunder (collectively, the “ Cayman Deliverables ”) by not later than ten business days after such date (the “ Foreign Subsidiary Designated Default ”); (b) the net loss after taxes of Borrower and its subsidiaries on a consolidated basis, as of the last day of the fiscal quarter ended September 30, 2012, was ($5,293,536), and pursuant to Section 4.9(a) of the Credit Agreement, Borrower was required to maintain, and to cause each of its subsidiaries to maintain, the net income after taxes of Borrower and its subsidiaries on a consolidated basis as of such day of not less than $2,700,000 (the “ Net Income Designated Default ”); (c) the audited consolidated and consolidating financial statements of Borrower and its subsidiaries accompanied by the auditing firm’s report and opinion, which were required to be delivered by not later 120 days after the end of fiscal year 2011 pursuant to Section 4.3(a) of the Credit Agreement, have not been delivered by such date (the “ Audited Financials Designated Default ” and together with the Foreign Subsidiary Designated Default and the Net Income Designated Default, the “ Designated Defaults ” and each, a “ Designated Default ”); and (d) Borrower intends to consummate the “going public” transaction of Borrower pursuant to an S-1 registration statement to be filed with the United States Securities and Exchange Commission (the “ Going Public Transaction ”);
WHEREAS, Borrower has requested that Bank waive the Designated Defaults and the Events of Default under Section 6.1(c) of the Credit Agreement arising solely as a result of each Designated Default, and Bank has agreed to waive the Designated Defaults and the Events of Default under Section 6.1(c) of the Credit Agreement resulting therefrom, on the terms and conditions set forth herein;
WHEREAS, Borrower has requested that Bank consent to the Going Public Transaction so that no Event of Default under Section 6.1(h) of the Credit Agreement arises as a result thereof, and Bank has agreed to consent to the Going Public Transaction, on the terms and conditions set forth herein; and

WHEREAS, Bank and Borrower have agreed to certain changes in the terms and conditions set forth in the Credit Agreement and have agreed to amend the Credit Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree that the Credit Agreement shall be amended as follows:
1. Limited Waiver and Consent .
(a) Borrower acknowledges that each Designated Default constitutes an Event of Default under Section 6.1(c) of the Credit Agreement. Pursuant to the request of Borrower, and notwithstanding the provisions of Section 4.12(b) of the Credit Agreement and subject to Section 3 hereof, Bank hereby waives the Foreign Subsidiary Designated Default and the Event of Default under Section 6.1(c) of the Credit Agreement directly resulting from the Foreign Subsidiary Designated Default; provided that all of the Cayman Deliverables are completed by not later than 45 days after the date of this Amendment and Waiver. Pursuant to the request of Borrower, and notwithstanding the provisions of Section 4.9(a) of the Credit Agreement and subject to Section 3 hereof, Bank hereby waives the Net Income Designated Default and the Event of Default under Section 6.1(c) of the Credit Agreement directly resulting from the Net Income Designated Default. Pursuant to the request of Borrower, and notwithstanding the provisions of Section 4.3(a) of the Credit Agreement and subject to Section 3 hereof, Bank hereby waives the Audited Financials Designated Default and the Event of Default under Section 6.1(c) of the Credit Agreement directly resulting from the Audited Financials Designated Default; provided that the financial statements for fiscal year 2011 and the auditing firm’s report and opinion, each as required by Section 4.3(a) of the Credit Agreement, shall be delivered by not later than November 30, 2012, and the failure to deliver any such documents by such date shall constitute an Event of Default under Section 6.1(c) of the Credit Agreement and the 20-day cure period set forth therein shall not apply to any such failure.
(b) Pursuant to the request of Borrower, and notwithstanding the provisions of Section 6.1(h) of the Credit Agreement and subject to Section 3 hereof, Bank hereby consents to the consummation of the Going Public Transaction; provided that at the time of the effectiveness of the Going Public Transaction (the “Effective Time”), (i) the representations and warranties of Borrower and any of its subsidiaries contained in the Credit Agreement and in each of the other Loan Documents shall be true on and as of the Effective Time, with the same effect as though such representations and warranties had been made on and as of the Effective Time except to the extent that any representation or warranty specifically refers to an earlier date, in which case such representation or warranty shall be true as of such earlier date, (ii) no event or circumstance that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect shall have occurred and be continuing or shall exist, (iii) no Event of Default and no condition, event or act which with the passage of time to cure such condition, event or act, or the giving of notice or both, if applicable in any such case, would constitute such an Event of Default, shall have occurred and be continuing or shall exist, and (iv) Bank shall be satisfied in its reasonable discretion with amendments to the Certificate of Incorporation and bylaws of Borrower and shall have received a certificate substantially similar to the certificate described in Section 3(a)(iii) below with respect thereto.
 
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The limited waiver and consent set forth in the preceding paragraphs (a) and (b) (i) shall be limited precisely as written, and the limited consent set forth in the preceding paragraph (b) is provided solely for the purpose of permitting Borrower to consummate the Going Public Transaction without violating the provisions of Section 6.1(h) of the Credit Agreement, (ii) shall not be deemed to be an amendment of, consent to or waiver of Sections 4.3(a), 4.9(a), 4.12(b), 6.1(c) or 6.1(h) of the Credit Agreement in any other instance or of any other terms or conditions of the Credit Agreement, any other Loan Document or any other document related to the Credit Agreement, (iii) shall not extend nor be deemed to extend to any Event of Default or any condition, event or act which with the passage of time to cure such condition, event or act, or the giving of notice or both, if applicable in any such case, would constitute such an Event of Default that may now exist or hereafter arise under the Credit Agreement, whether similar or dissimilar to any Designated Default or the Going Public Transaction, (iv) shall not impair, restrict or limit any right or remedy of Bank with respect to any Event of Default or any condition, event or act which with the passage of time to cure such condition, event or act, or the giving of notice or both, if applicable in any such case, would constitute such an Event of Default that may now exist or hereafter arise under the Credit Agreement, and (v) shall not constitute any course of dealing or other basis for altering any obligation of Borrower or any right, privilege or remedy of Bank under the Credit Agreement or any other Loan Document. Except as expressly stated herein, Bank reserves all rights, privileges and remedies under the Credit Agreement and all other Loan Documents.
2. Amendments to the Credit Agreement . The Credit Agreement is hereby amended as follows:
(a) Section 1.1(a) of the Credit Agreement is hereby deleted in its entirety, and the following is substituted therefor:
(a) Line of Credit . Subject to the terms and conditions of this Agreement, Bank hereby agrees to make advances to Borrower from time to time up to and including November 13, 2013, not to exceed at any time the aggregate principal amount of Fifty Million Dollars ($50,000,000) (“ Line of Credit ”), the proceeds of which shall be used for Borrower’s general corporate purposes and to finance Borrower’s working capital requirements in the ordinary course of business. Borrower’s obligation to repay advances under the Line of Credit shall be evidenced by a promissory note executed by Borrower dated as of December 27, 2011, as modified by the Modification to Revolving Line of Credit Note dated as of November 13, 2012, and as otherwise amended or modified by Borrower and Bank from time to time (the “ Line of Credit Note ”), all terms of which are incorporated herein by this reference.
(b) Section 1.1(b) of the Credit Agreement is hereby deleted in its entirety, and the following is substituted therefor:
 
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(b) Letter of Credit Subfeature . As a subfeature under the Line of Credit, Bank agrees from time to time during the term thereof to issue or cause an affiliate to issue standby letters of credit for the account of Borrower for general corporate purposes of Borrower agreed to by Bank (each, a “ Letter of Credit ” and collectively, “ Letters of Credit ”); provided however, that the aggregate undrawn amount of all outstanding Letters of Credit shall not at any time exceed Twenty Five Million Dollars ($25,000,000). The form and substance of each Letter of Credit shall be subject to approval by Bank, in its sole discretion. Each Letter of Credit shall be issued for a term not to exceed three hundred sixty five or three hundred sixty six (365 or 366), as applicable, days, as designated by Borrower; provided however, that no Letter of Credit shall have an expiration date more than three hundred sixty five or three hundred sixty six (365 or 366), as applicable, days beyond the maturity date of the Line of Credit; provided further that if any Letter of Credit shall have an expiration date beyond the maturity date or termination date of the Line of Credit, Borrower shall, at least thirty (30) days prior to the earlier of the maturity date or termination date of the Line of Credit, cash collateralize the aggregate amount of all outstanding but undrawn Letters of Credit by depositing in a blocked, non-interest bearing deposit account of Borrower at Bank in the name of Bank and under the sole dominion and control of Bank cash in an aggregate amount equal to one hundred five percent (105%) of the maximum aggregate amount available to be drawn under all outstanding but undrawn Letters of Credit and if additional Letters of Credit become outstanding from and after the date of such deposit, Borrower shall immediately deposit additional cash collateral in an aggregate amount equal to one hundred five percent (105%) of the maximum aggregate amount available to be drawn under such additional Letters of Credit (all such cash deposits, deposit accounts and all balances therein, collectively, the “ Letter of Credit Deposits ”). Borrower hereby grants to (and subjects to the control of) Bank, and agrees to maintain, a first priority security interest in all Letter of Credit Deposits, and in all proceeds thereof, all as security for the obligations to which such cash collateral may be applied pursuant to this Agreement or the other Loan Documents. Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of cash collateral. Upon the drawing of any Letter of Credit that has been cash collateralized, unless such drawing has become an advance under the Line of Credit pursuant to the terms and conditions of this Agreement or has been repaid by Borrower in accordance with this Agreement, the funds held as cash collateral shall be applied (without any further action by or notice to or from Borrower or any guarantor hereunder) to repay Bank. At such time as the Letter of Credit Deposits exceed the sum of the maximum aggregate amount available to be drawn under all outstanding but undrawn Letters of Credit and the aggregate amount of all drawings under Letters
 
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of Credit honored by Bank and not repaid by Borrower, if no Event of Default (as defined herein) has occurred and is continuing, the amount of such excess shall, at the request of Borrower, be released to Borrower. The undrawn amount of all Letters of Credit shall be reserved under the Line of Credit and shall not be available for borrowings thereunder. Each Letter of Credit shall be subject to the additional terms and conditions of the Letter of Credit agreements, applications and any related documents required by Bank in connection with the issuance thereof. Each drawing paid under a Letter of Credit shall be deemed an advance under the Line of Credit and shall be repaid by Borrower in accordance with the terms and conditions of this Agreement applicable to such advances; provided however, that if advances under the Line of Credit are not available, for any reason, at the time any drawing is paid, then Borrower shall immediately pay to Bank the full amount drawn, together with interest thereon from the date such drawing is paid to the date such amount is fully repaid by Borrower, at the rate of interest applicable to advances under the Line of Credit. In such event Borrower agrees that Bank, in its sole discretion, may debit any account maintained by Borrower with Bank for the amount of any such drawing.
(c) Section 4.9(a) of the Credit Agreement is hereby deleted in its entirety, and the following is substituted therefor:
(a) Net income after taxes of Borrower and its subsidiaries on a consolidated basis not less than the correlative amount indicated below as of the last day of the most recently ended fiscal quarter set forth below, determined on a quarterly basis for such fiscal quarter:

Period	  	Minimum
Amount	 	
Fiscal quarter ending December 31, 2012	  	$	32,000,000	  	
Fiscal quarter ending March 31, 2013	  	$	6,000,000	  	
Fiscal quarter ending June 30, 2013	  	$	13,000,000	  	
Fiscal quarter ending September 30, 2013	  	$	4,000,000	  	
(d) Section 4.9(b) of the Credit Agreement is hereby deleted in its entirety, and the following is substituted therefor:
(b) Current Ratio not less than 1.75 to 1.0 as of the last day of the most recently ended fiscal quarter, with “Current Ratio” defined as total current assets of Borrower and its subsidiaries on a consolidated basis divided by total current liabilities of Borrower and its subsidiaries on a consolidated basis (including, without limitation, with respect to any letter of credit issued for the account of Borrower or any of its subsidiaries or as to which Borrower or any of its subsidiaries is otherwise liable for reimbursement of drawings).
 
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(e) Section 4.9(c) of the Credit Agreement is hereby deleted in its entirety, and the following is substituted therefor:
(c) Unrestricted cash and unrestricted readily marketable cash equivalents with maturities less than one year of Borrower or any guarantor hereunder, all held at Bank and Bank’s affiliates in the United States, not subject to any lien other than a lien in favor of Bank, and not pledged to or held by Bank to secure a specified obligation, not less than $15,000,000 at any time.
(f) Section 5.2 of the Credit Agreement is hereby deleted in its entirety, and the following is substituted therefor:
SECTION 5.2. CAPITAL EXPENDITURES. Make any additional investment in fixed assets (a) in the fiscal year ending December 31, 2012 in excess of an aggregate of $20,000,000; and (b) in the fiscal year ending December 31, 2013 in excess of an aggregate of $20,000,000.
(g) From and after the Effective Time, Section 4.3 of the Credit Agreement is
hereby amended by deleting the word “and” at the end of paragraph (d) thereof, renumbering paragraph (e) as paragraph (g), and adding the following paragraphs thereto:
(e) promptly upon request by Bank, copies of audit reports, management letters or recommendations submitted to the board of directors (or any committee thereof) of Borrower or any of its subsidiaries by independent accountants in connection with the accounts or books of Borrower or any of its subsidiaries or any audit thereof;
(f) promptly upon request of Bank, after the same become available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower may file or be required to file with the U.S. Securities and Exchange Commission and not otherwise required to be delivered to Bank pursuant to this Agreement; and
(h) From and after the Effective Time, Section 5.7 of the Credit Agreement is hereby deleted in its entirety, and the following is substituted therefor:
SECTION 5.7. DIVIDENDS, DISTRIBUTIONS. Declare or pay any dividend or distribution either in cash, stock or any other property on the stock of Borrower or any of its subsidiaries now or hereafter outstanding, nor redeem, retire, repurchase or otherwise acquire any shares of any class of stock of Borrower or any of its subsidiaries now or hereafter outstanding except (a) any subsidiary of Borrower may declare and pay dividends or distributions with respect to its stock to Borrower or another wholly-owned subsidiary of Borrower that is a holder of such
 
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stock; (b) Borrower may repurchase the stock of former employees, directors, officers or consultants pursuant to stock repurchase plans and similar agreements in amounts not to exceed an aggregate of $100,000 per fiscal year so long as an Event of Default does not exist at the time of such repurchase and would result therefrom; and (c) Borrower may make noncash repurchases of Borrower’s stock deemed to occur upon exercise of stock options if such stock represents a portion of the exercise price of, and any required tax withholdings in respect of, such options, so long as the amount of such required tax withholdings together with repurchases permitted pursuant to clause (b) hereunder do not exceed an aggregate of $100,000 per fiscal year.
(i) From and after the Effective Time, Section 6.1(h) of the Credit Agreement is hereby deleted in its entirety, and the following is substituted therefor:
(h) an event or series of events by which (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of twenty-five percent (25%) or more of the equity interests of Borrower entitled to vote for members of the board of directors or equivalent governing body of Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (ii) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of Borrower cease to be composed of individuals (A) who were members of such board or equivalent governing body on the first day of such period, (B) whose election or nomination to such board or equivalent governing body was approved by individuals referred to in clause (A) above constituting at the time of such election or nomination at least a majority of such board or equivalent governing body or (C) whose election or nomination to such board or other equivalent governing body was approved by individuals referred to in clauses (A) and (B) above constituting at the time of such election or nomination at least a majority of such board or equivalent governing body (excluding, in the case of both clause (B) and clause (C), any individual whose initial nomination for, or assumption of office as, a member of such board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or (iii) the passage of thirty (30) days from the date upon which any person or two or more persons acting in concert shall
 
7

have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of Borrower, or control over the equity securities of Borrower entitled to vote for members of the board of directors or equivalent governing body of Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right) representing twenty-five percent (25%) or more of the combined voting power of such securities.
3. Condition Precedent . This Amendment and Waiver, including, without limitation the amendments to the Credit Agreement contained herein, shall become effective as of the date of this Amendment and Waiver (except as stated otherwise in Section 2) upon satisfaction of all of the conditions set forth in this Section 3 to the satisfaction of Bank:
(a) Bank shall have received each of the following, in form and substance satisfactory to Bank, duly executed and delivered by each of the applicable parties thereto:
(i) this Amendment and Waiver
(ii) the Modification to Revolving Line of Credit Note dated as of November 13, 2012;
(iii) Certificate of Borrower’s secretary or similar person, as to, and attaching if applicable: (A) copies of the Certificate of Incorporation, certified as of a recent date by the Secretary of State of Borrower’s state of organization; (B) copies of the bylaws of Borrower, or confirming that there have been no changes to the Certificate of Incorporation or bylaws previously delivered to Bank; (C) copies of resolutions of the board of directors or other governing body or other authorizing documents of Borrower, approving this Amendment and Waiver and the Modification to Revolving Line of Credit Note and the extensions of credit hereunder and thereunder; (D) incumbency; and (E) copies of certificates of good standing or its equivalent with respect to Borrower certified as of a recent date by the Secretary of State and the tax authority of Borrower’s state of organization and each other state in which Borrower is qualified to do business; and
(iv) such other documents as Bank may require under any other Section of this Amendment and Waiver or otherwise.
(b) No Event of Default nor any condition, event or act which with the giving of notice or the passage of time or both would constitute such an Event of Default shall have occurred and be continuing (except to the extent expressly waived hereby).
4. Except as specifically provided herein, all terms and conditions of the Credit Agreement remain in full force and effect, without waiver or modification. All terms defined in the Credit Agreement shall have the same meaning when used in this Amendment and Waiver. This Amendment and Waiver and the Credit Agreement shall be read together, as one document. The Recitals hereto, including the terms defined therein, are incorporated herein by this reference and acknowledged by Borrower to be true, correct and complete.
 
8

5. Borrower hereby remakes all representations and warranties contained in the Credit Agreement and reaffirms all covenants set forth therein (as amended hereby). Borrower further certifies that as of the date of this Amendment and Waiver, other than with respect to the Designated Defaults, there exists no Event of Default as defined in the Credit Agreement, nor any condition, act or event which with the passage of time to cure such condition, event or act, or the giving of notice or both, if applicable in any such case, would constitute any such Event of Default.
6. Borrower will make, execute, endorse, acknowledge, and deliver any agreements, documents, or instruments, and take any and all other actions, as may from time to time be reasonably requested by Bank to perfect and maintain the validity and priority of the liens and security interests granted to Bank pursuant to the Credit Agreement and the other Loan Documents and to effect, confirm, or further assure or protect and preserve the interests, rights, and remedies of Bank under the Credit Agreement (as amended hereby) and the other Loan Documents.
7. This Amendment and Waiver may be executed in any number of identical counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a complete, executed original for all purposes. Delivery of an executed counterpart of a signature page of this Amendment and Waiver by email or facsimile transmission shall be as effective as delivery of a manually executed counterpart hereof.
8. This Amendment and Waiver shall be governed by and construed in accordance with the internal laws of the State of California.
[signatures follow]
 
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver to be executed as of the day and year first written above.

WOODMAN LABS, INC., a Delaware corporation	
		
By:	 	/s/ Kurt Amundson	
Name:	 	Kurt Amundson	
Title:	 	CFO	
	
WELLS FARGO BANK, NATIONAL ASSOCIATION	
		
By:	 	/s/ Ken Edens	
Name:	 	Ken Edens	
Title:	 	Vice President	
[ Signature Page to Second Amendment to Credit Agreement
and Limited Waiver and Consent ]

Exhibit 10.14
CONFIDENTIAL TREATMENT REQUESTED. CERTAIN PORTIONS OF THIS
DOCUMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND, WHERE APPLICABLE, HAVE BEEN MARKED
WITH AN ASTERISK TO DENOTE WHERE OMISSIONS HAVE BEEN MADE. THE
CONFIDENTIAL MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Design, Manufacturing and Supply Agreement
This Design, Manufacturing and Supply Agreement (this “ Agreement ”) is made as of August 18, 2011 (the “ Effective Date ”), by and between Woodman Labs, Inc. (d/b/a GoPro), a California corporation with offices at 2450 Cabrillo Highway South, Suite 250, Half Moon Bay , California 94109 USA (“ Customer ”), and Chicony Electronics Co. Ltd., a Taiwan corporation with offices at No.25, Wu-Gong 6 th Rd., Wu Ku Industrial Park, New Taipei City, R.O.C. (“ Manufacturer ”). Customer and Manufacturer are each referred to as a “ Party ” and are collectively referred to as the “ Parties .”
RECITALS
 
A.	Manufacturer is in the business of designing, manufacturing, testing, packaging, and selling various consumer electronics products on a contract manufacturing and/or original design manufacturer ( “ODM” ) basis.	
 
B.	Customer and Manufacturer desire to have Manufacturer design, manufacture, test, package, and sell to Customer certain customized products, subject to and in accordance with the terms and conditions of this Agreement.	
NOW THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS.
1.1 “ Affiliate ” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party.
1.2 “Conflicting Companies” means companies (and their respective affiliates) whose use of Manufacturer’s design or manufacturing services may create a conflict with the services provided to Customer, as listed in Exhibit E , which list may be modified by Customer from time to time upon thirty (30) days notice and agreed by Manufacturer (which agreement shall not be unreasonably withheld).
1.3 “Deliverables” means the documentation and materials related to design and manufacture of the Products, including prototypes, schematics, mechanical drawings, PCB gerber files, bills of materials, component specifications, Key Supplier contact information, certificates, quality reports, software source code files, tooling drawings, assembly jig drawings, design evaluation reports, as identified in a Statement of Work.
 
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1.4 “Key Suppliers” means third party suppliers of components to be used in the Products that are (i) specially-designed for such Products and/or (ii) generally commercially available only from such supplier.
1.5 “ Products ” means the digital video and/or still camera products and associated accessories that are developed or customized by Manufacturer for Customer pursuant to any Statement of Work (including any batteries, chargers, or other accessories associated with such products), or any other products that the Parties mutually agree in writing will be offered by Manufacturer to Customer for purchase under this Agreement.
1.6 “ Purchase Orders ” means purchase orders issued by Customer to Manufacturer in accordance with the terms set forth in Section 3.
1.7 “ Specifications ” means written specifications, as referenced in or created pursuant to an applicable Statement of Work (and as may be modified from time to time in accordance with this Agreement), that describe the design, components, functionality and/or performance requirements for a Product. The Customer owns these specifications except as otherwise expressly provided in Statement of Work.
1.8 “ Statement of Work ” means a written statement of work, mutually agreed upon and executed by the Parties, that: (i) specifically references this Agreement; (ii) identifies the particular design, development, and/or related services to be provided by Manufacturer for Customer in relation to a given Product; and (iii) sets forth the other pertinent details of the project such as start and stop dates, development milestones, fees, and key deliverables.
2. AGREEMENT TO SUPPLY. Manufacturer will supply Customer with design services and finished Products as set forth more specifically below.
2.1 Design Services . Manufacturer will provide design, development, and related services (such as prototype manufacturing, testing, and regulatory certification) for the Products, all as set forth in and in accordance with the initial Statement of Work attached hereto as Exhibit A or (where applicable) the Statement(s) of Work for any future project(s) that may added to this Agreement by mutual agreement of the Parties. Customer will pay for the NRE and tooling fees set forth in the Statement of Work. Manufacturer will provide all Products and related Deliverables to Customer according to the schedule set forth in the applicable Statement of Work. Manufacturer will obtain all permissions necessary from its suppliers to ensure access by Customer to the Deliverables.
2.2 O wnership . Unless otherwise specified in the applicable Statement of Work, Customer will own all Customer-funded tooling and equipment (the “ Customer-Owned Tooling ”), and all Product designs and other deliverables that are specifically developed for Customer under a Statement of Work, provided that Manufacturer will retain ownership of (i) any software owned by Manufacturer prior to engagement with Customer that Customer agrees to have included in a Product and (ii) any technology developed by Manufacturer relating to manufacturing processes related to the Products that Manufacturer uses to produce the Products under this Agreement (collectively, the “ Manufacturer-Owned Technology ”). For avoidance of doubt, in no event will Manufacturer own any designs, deliverables, software or other materials to the extent they were furnished by Customer (collectively, the “ Product Designs ”).
 
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2.3 Tooling Use and Care . Without Customer’s prior written consent, Manufacturer shall not at any time use any Customer-Owned Tooling for the production of goods or products or the performance of services for or on behalf of any third party or for any purposes other than the performance of services or manufacture of Products for Customer pursuant to this Agreement. Manufacturer will be responsible for any loss of or damage to Customer-Owned Tooling, other than normal wear and tear, while on Manufacturer’s premises or in its control, will develop a maintenance plan and use commercially reasonable efforts to maintain any Customer-Owned Tooling in good condition and repair, and will provide all necessary calibration services for such Customer-Owned Tooling except to the extent such loss or damage is not attributable to Manufacturer. Upon Customer’s request (during or after the term of this Agreement), Manufacturer will cooperate with Customer in all ways reasonably necessary to facilitate the Customer-directed destruction, delivery, or other disposition of any Customer-Owned Tooling that is no longer used to produce Products under this Agreement; if the foregoing mentioned Customer-directed destruction, delivery, or other disposition results in occurrence of any costs, Customer shall reimburse Manufacturer for such costs. Manufacturer will provide Customer a monthly written report for the tooling used to produce Products or Product components, including the number of shots done and remaining number of shots possible for each tool. Manufacturer also will provide a capacity plan to ensure a safety capacity of 25% based on current orders. Manufacturer shall not be prohibited from using its own tooling for any third party if designed without using or copying any Customer-Owned Tooling.
2.4 Acceptance of Deliverables . The design and development services will be divided in several phases as provided in a Statement of Work. Each phase must be approved by Customer, such approval shall not be unreasonably withheld. Customer may inspect any Deliverables furnished in connection with Manufacturer’s design services prior to accepting or rejecting the same. Deliverables (and the services associated with those Deliverables) will not be considered complete until accepted by Customer in writing.
2.5 Changes . The Statements of Work, Specifications, and Product designs are subject to modification only upon written agreement between the Parties. Without limiting the foregoing, Manufacturer must receive Customer’s written approval before making any change that affects the fit, finish, appearance, function, quality, safety or manufacturing location of the Product or of any component, part or accessory. Customer may at any time propose changes to a Statement of Work, Specifications or Products by means of a written Engineering Change Notice ( “ECN” ). Manufacturer will use commercially reasonable efforts to provide a detailed response within three (3) working days of receipt of the ECN describing the likely impact of implementing the ECN, including but not limited to scheduling and prices of any accepted Purchase Order. Until an ECN and any associated impact on any relevant Purchase Order have been agreed to in writing, the Parties will continue to perform their obligations under the relevant Purchase Order without taking account of that ECN. All costs of implementing ECNs after final product approval, due to failure of Manufacturer to meet Specification will be the sole responsibility of Manufacturer.
 
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2.6 Supply of Products . Following achievement of production capability pursuant to the applicable Statement of Work, Manufacturer will supply such Product to Customer in fulfillment of Purchase Orders placed by Customer and in accordance with the terms and conditions of this Agreement.
2.7 Quality Assurance Requirements . Manufacturer will maintain quality assurance systems for the control of material quality, processing, assembly, testing, packaging and shipping in accordance with Customer Quality Assurance Requirements.
2.8 Testing . The Manufacturer will perform its standard test procedures, as well as any test procedures set forth by Customer relating to Products and Services. Manufacturer will perform tests using the test equipment, procedures and software as agreed between Customer and Manufacturer
2.9 Inspection . With Manufacturer’s prior information 2 days before the visit, Customer shall have the right during normal business hours and at its expense, to audit, inspect, and review, Manufacturer’s facilities, quality control procedures and the services to be provided by Manufacturer under this Agreement and any completed Products, work in progress Products, Product components, other deliverables, manufacturing logs and records, and/or Manufacturer’s testing of Products, provided that such inspection shall not unreasonably disrupt Manufacturer’s normal business operations.
2.10 Stop Actions . In the event of a quality alert issued by Customer’s quality organization, Customer may issue a “stop build” or “stop ship” to Manufacturer. In such events, Manufacturer will make commercially reasonable efforts to ensure that such stop actions take place with immediate effect. Any situation which may cause “stop build” or “stop ship” will require both Parties to immediately identify root cause of the issues and to dedicate resources to resolve the problem. Resolution specific to scrap, rework and unplanned cost will be resolved upon return to regular production.
2.11 Program Management . Manufacturer will, in connection with the design and development services, assign a program manager dedicated to supporting the services, who will provide weekly written reports to Customer about the progress of the services. Manufacturer also will assign a dedicated engineering team to support the program whose names and titles will be provided to Customer, and who will cooperate to enable Customer’s engineering personnel to participate in the development and/or production of Products as and when desired by Customer. The Parties will endeavour to have a weekly conference call to discuss and resolve any issues that may have arisen including those relating to quality, performance, engineering changes, obsolescence, surpluses, forecast changes, pricing or such other issues as may arise from time to time. In addition, the Parties will endeavor to have a quarterly business review to discuss and resolve any long term issues that may have arisen including those relating to quality, delivery, logistics, cost and such other issues as may arise and to identify opportunities for improvement.
 
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3. ORDERING TERMS.
3.1 Submission of Purchase Orders . Customer may order Products by submitting Purchase Orders to Manufacturer in writing or through electronic transmission. Each Purchase Order will include ordering information such as Product name or other Product identifier, quantity, unit price, requested delivery dates and delivery locations, shipping and packaging instructions, and any agreed upon special terms and conditions applicable to the Products (collectively, “ Ordering Information ”).
3.2 Acceptance of Purchase Orders . Within three (3) working days following Manufacturer’s receipt of each Purchase Order (including updates), Manufacturer will acknowledge receipt thereof and accept the delivery dates set forth in the Purchase Order or specify the basis for rejection and propose commercially reasonable alternate delivery dates that are reasonably acceptable to Customer. Within five (5) working days following Customer’s receipt of such alternate delivery dates, Customer will either: (a) notify Manufacturer that it rejects such dates (in which case the Purchase Order will be deemed cancelled and of no effect); or (b) accept such dates by issuing a confirming Purchase Order, which will be deemed accepted by Manufacturer upon receipt. If Manufacturer fails to acknowledge a Purchase Order or provide alternate delivery dates within the applicable period, the Purchase Order will be deemed accepted in accordance with its terms.
3.3 No Conflicting Terms . Except for Ordering Information and any Specifications referred to or incorporated into a Purchase Order, or except as expressly agreed by both parties in writing, any terms and conditions contained in a Purchase Order or in Manufacturer’s quotation or order acknowledgment forms that are inconsistent with the terms and conditions of this Agreement are hereby rejected by Manufacturer and will be deemed null and of no effect.
3.4 Order Changes . Except as otherwise set forth in this Agreement, Customer’s cancellation, modification or rescheduling of any accepted Purchase Order will be governed by the terms of Exhibit B hereto. However, if any fees will be charged to Manufacturer by suppliers resulting from or arising from the foregoing cancellation, modification or rescheduling of any accepted Purchase Order, Manufacture will notify Customer in advance of any such fee and Customer shall be responsible for it. Manufacturer will make commercially reasonable efforts to increase or decrease commitments for deliveries as called for in Purchase Orders. These efforts will include efforts to align capacity plans and component procurement agreements in accordance with Customer’s Forecasts and capacity commitments described in Section 4.
4. FORECASTS AND CAPACITY .
4.1 Rolling Forecast . Customer shall make commercially reasonable efforts to provide Manufacturer with a monthly forecast of quantity requirements of each Product (each, a “ Forecast ”). Forecasts shall be updated by Customer on a monthly basis for requirements out three (3) to six (6) months. In the event that a six (6) month schedule is not available, Customer will provide a Forecast to the limit of its planning horizon. Customer and Manufacturer acknowledge and agree that: (a) each such Forecast is a good faith estimate of its anticipated

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orders for Products based on information then available to Customer and that Customer is providing such Forecasts only as an accommodation to Manufacturer; and (b) Forecasts do not constitute a binding order or commitment of any kind by Customer to purchase Products.
4.2 Capacity . Manufacturer will, at all times, maintain sufficient manufacturing capacity and inventory to be able to meet the quantities stated in Exhibit B and to support a [*] percent ([*]%) increase in units over amount forecast for the [*].
4.3 Strategic Materials . Subject to the parties’ agreement or if required by a supplier, some strategic materials utilized in the production of Products may be supplied by Customer to Manufacturer as the Manufacturer’s only qualified source ( “Strategic Materials” ). Manufacturer’s is responsible for placing purchase orders upon Customer for Strategic Materials within seven (7) days of receipt of Customer’s Purchase Order for applicable Products, and at Customer’s stated cost. Customer will use reasonable commercial efforts to deliver ordered materials FCA (Incoterms 2010) at Manufacturer’s designated facility on or before Manufacturer’s requested delivery date unless Customer notifies Manufacturer of an alternative delivery date. Customer and Manufacturer may re-establish the cost of Strategic Materials and the associated Bill of Materials from time to time as market costs change. For orders not placed with Customer by Manufacturer within seven (7) days of receipt by Manufacturer of Customer’s Purchase Order, any expedited shipping costs necessary to meet Manufacturer’s scheduled delivery requirement shall be the sole responsibility of Manufacturer.
5. PRICING AND PAYMENT TERMS.
5.1 Prices and Fees . The prices for the Products will be determined in accordance with Exhibit C . Such prices are stated in United States dollars and are exclusive of all Shipping Costs (defined in Section 6.2), which Manufacturer pre-pays in accordance with the provisions of Section 6.2. Manufacturer will [*] all [*] on Manufacturer’s invoice. NRE fees, tooling reimbursement, and any other amounts payable in relation to services under a Statement of Work will be as set forth in such Statement of Work. Both parties acknowledge that pricing will be developed using “Open Book” methodology employing actual Manufacturer costs. Without any due cause, Manufacturer will not increase component costs in representations of costs associated with the Product. Similarly, other costs, including costs pertaining to production and testing of Products, will be represented as actual costs incurred by Manufacturer and not modified in any way.
5.2 Price Adjustments . The Manufacturer will make efforts to reduce pricing on a continuing basis throughout the term of this Agreement. The Parties shall meet on a quarterly basis or more frequently if necessary to establish pricing for future periods in accordance with Exhibit C .
5.3 Payment Terms . For all Product delivered under this Agreement, Manufacturer will issue an invoice to Customer on the date that Manufacturer ships the Products to Customer and, unless Customer rejects a shipment of the Products (or a portion of a shipment) in accordance with the provisions of Section 6.3, Customer will pay such invoices within [*] ([*]) [*] following Customer’s receipt thereof, with outstanding account receivable not more
 
*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.	
 
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than US$[*]. When outstanding account receivable exceeds US$[*], [*]. Payment terms for any NRE fees, tooling reimbursement, or any other amounts payable in relation to services under a Statement of Work will be as set forth in such Statement of Work; provided that if the Statement of Work does not specify applicable payment terms, such amounts will be due [*] ([*]) days following Customer’s receipt of Manufacturer’s applicable invoice, which invoice will not be issued until completion of the deliverable or other milestone or task associated with such fees. In the event that Customer fails to make due payment, Manufacturer shall be entitled to hold delivery of Products without any liability.
5.4 Taxes . Prices are inclusive of all taxes, and Manufacturer will be responsible for reporting and payment of all taxes, duties and fees relating to Manufacturer’s production and supply of Products and services under this Agreement.
6. PRODUCT DELIVERY.
6.1 Shipping Requirements . Unless otherwise expressly specified in a Purchase Order by Customer, Manufacturer will ensure that the Products are packaged in a manner that is: (a) in accordance with good commercial practice; (b) acceptable to common carriers for shipment; and (c) adequate to ensure safe arrival of the Products at the delivery location designated in the applicable Purchase Order. Manufacturer will mark all containers and packaging with commercially standard lifting, handling and shipping information. Each shipment of Product to Customer shall include a packing slip that contains at a minimum (i) the Purchase Order number, (ii) Customer’s part number, (iii) quantity, (iv) date of shipment and (v) Country of Origin (manufacture) in compliance with agreed requirements. The Product and its container must also be conspicuously marked with the Country of Origin. Manufacturer must provide a signed certificate stating Country of Origin (manufacture) by quantity and part number. Each shipment should include a commercial invoice that contains at a minimum Purchase Order number, Customer part number, description of the product, quantity, unit price paid, and extended value.
6.2 Shipment of Products . Unless agreed otherwise, Manufacturer will ship the [*] designated in the applicable Purchase Order. In addition to Manufacturer’s obligations under Section 6.1, Manufacturer will be responsible for arranging all necessary transportation, packaging, insurance, and customs clearance and export documentation, as applicable, and for pre-payment of all costs and charges related thereto (collectively, “ Shipping Costs ”). Manufacturer will bear all risk of loss or damage to the Products and will retain title to the Products until the according to trade term. In the event the point of delivery changed from time to time, the increase cost will be re-quoted from time to time.
6.3 Delays in Shipment . The Parties acknowledge that failure to meet the delivery schedule specified in any Statement of Work or Purchase Order may cause substantial financial impact to each other. Manufacturer will promptly notify Customer in writing of any anticipated delay in meeting the delivery dates specified in the applicable Statement of Work or Purchase Order stating the reasons for the delay. If Manufacturer foresees a possible delay in delivery of Products, Manufacturer shall notify Customer of its possible failure to deliver and Manufacturer will provide Customer with a proposed new delivery date at least fourteen (14)
 
*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.	
 
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days prior to the originally confirmed delivery date. Customer may cancel the order or agree on a new delivery date. In any case, Manufacturer shall bear all actual loss and damages (including but not limited to transportation costs, customer charges, order cancellations) that Customer suffers in the event Manufacturer fails in a timely manner to deliver the Product on the original delivery date, unless the delay was due to causes not reasonably foreseeable and outside Manufacturer’s control.
6.4 Inspection and Return . Customer will use reasonable efforts to test and inspect the Products and notify Manufacturer of any: (a) errors in ordered quantities; (b) nonconformities of the Product with the agreed applicable Specifications; (c) defects in material or workmanship; or (d) damage occurring as result of delivery. In the event Customer rejects any Products based on the foregoing, then Manufacturer will, in each instance, provide Customer a Return Material Authorization (“ RMA ”) for full purchase price number and shipping instructions for such returns. Manufacturer will be responsible for and will pay all Shipping Costs incurred by Customer in connection with shipping such Products to Manufacturer as well as any Shipping Costs for shipping replacement Products to Customer, unless Manufacturer can demonstrate to Customer that the Products returned to Manufacturer do not exhibit any nonconformities or defects.
Upon receipt of delivery of the Products, Customer shall conduct an acceptance inspection within [*] ([*]) days and after the inspection period, the Products shall be deemed accepted, and Customer may not claim the rejection rights of Section 6.4. Any nonconformities or defects discovered after acceptance will be subject to the rights provided in Section 9.
7. INTELLECTUAL PROPERTY RIGHTS .
7.1 Product Designs . Customer (and, if applicable, its third-party licensors) will retain sole and exclusive ownership of the Product Designs, including all associated software and materials and any improvements or modifications thereto. Manufacturer is authorized to use the Product Designs, and any other materials furnished to Manufacturer by or on behalf of Customer, solely for the purpose of performing services and manufacturing Products for Customer in accordance with this Agreement. Manufacturer shall make no other use of the Product Designs.
7.2 Assignment to Customer . Manufacturer hereby irrevocably transfers and assigns to Customer, and agrees to transfer and assign to Customer, all right, title, and interest (including intellectual property rights) that Manufacturer may have or acquire during the term of this Agreement in or to: (i) the Product Designs (and any improvements or modifications thereto); and/or (ii) any Deliverables (other than Manufacturer-Owned Technology) created specifically for or furnished to Customer under any Statement of Work.
7.3 License to Manufacturer-Owned Technology . As to Products provided by Manufacturer, Manufacturer grants to Customer a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license, under any intellectual property rights Manufacturer may have in the Manufacturer-Owned Technology, to: (i) use, distribute sell, offer for sale, import, and
 
*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.	
 
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otherwise exploit any Product to which such Manufacturer-Owned Technology pertains, and (ii) grant sublicenses to resellers and end users in connection with or in support of any of the foregoing activities. Manufacturer will grant additional, royalty-free licenses to Manufacturer-Owned Technology (excluding technology related to manufacturing processes) under minimum volume and/or volume share terms to be negotiated and agreed upon by both parties in applicable Statements of Work, for Customer’s modification and/or second source manufacturing purposes of the product identified in the Statement of Work.
7.4 Third Party Technology . Manufacturer will not incorporate in a Product or Product design any technology owned by a third party without Customer’s prior written consent. If Manufacturer desires to use any such third party technology, Manufacturer will notify Customer as promptly as possible and provide Customer details of the terms, benefits and costs of, and available alternatives to, using such technology. Customer may approve and reject use of any third party technology in its sole discretion.
8. PRODUCT SUPPORT. Manufacturer will provide Customer with support services for the Products in accordance with the terms and conditions specified in Exhibit D hereto at any time during the term of this Agreement. Manufacturer will provide support for any software upgrade for at least six (6) months after the final shipment of the Product to the Customer.
9. WARRANTY.
9.1 General Warranties . Manufacturer represents and warrants that:
(a) Manufacturer has the complete power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights and licenses granted to Customer under this Agreement;
(b) on the date delivered to Customer, the Products will be new and not contain previously used or refurbished components;
(c) on the date delivered to Customer, Customer will acquire good title to the Products, free and clear of all security interests, liens and other encumbrances;
(d) the Products are and will be safe for normal use, are non-toxic, present no abnormal hazards to persons or their environment, and may be disposed of as normal refuse without special precautions; and
(e) the Products shall meet all regulatory requirements and shall have received all certifications required to be sold and operated in the United States, the European Union and such other countries identified in the applicable Statement of Work, including but not limited to FCC, CE, RoHS, UL, TUV, and CSA. If the product requires wireless technology such as but not limited to (WIFI, Blue Tooth), Manufacturer must make sure that the product will pass the certification of each country where the product is planned to be sold. The Customer will provide the list of all countries where the product is planned to be sold.
 
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9.2 Product Failure Warranty . Manufacturer further warrants that, for a period of [*] ([*]) [*] from the delivery date, the Product will be free from defects in materials or workmanship and will maintain a failure rate of not more than [*] percent ([*]%). The failure rate will be calculated based on the [*] during each [*], excluding [*] or which failure [*]. The failure rate will be calculated by Customer and verified by Manufacturer and reported to Manufacturer [*], based on the [*] Product units that were [*] the total number of units of such Product [*]. After [*] parties, the rate will change over time based on [*] produced in a [*]. The calculation of failure rate shall not include any [*] regarding the defective product.
This warranty excludes damage caused by [*] or [*] or [*] or [*] or any acts of nature or ornamental decorations.
9.3 Remedies . If any Products fail to conform to Manufacturer’s representations and warranties set forth in Sections 9.1 or 9.2, then, in addition to any other remedies available to Customer under this Agreement, Manufacturer will, at its expense, repair or replace such nonconforming Products. Replacement Products supplied by Manufacturer under this Section 9.3 will be warranted for the rest of the warranty period. The return provisions of Section 6.4 will apply to Customer’s return of nonconforming Products to Manufacturer under this Section 9.3.
9.4 Epidemic Failure . In the event that [*] percent ([*]%) or more of any lot, batch or other separately distinguishable manufacturing run of Products which was verified by Manufacturer delivered to Customer is found to be defective with the same root cause defects within [*] ([*]) months following Manufacturer’s delivery of such Products to Customer, Manufacturer will promptly: (a) dedicate sufficient resources to thoroughly investigate the cause of the defect; (b) perform root cause analysis; and (c) implement corrective action. In addition, after Manufacturer’s verification, Manufacturer will render repair and replacement services, as reasonably requested by Customer, during the applicable Product warranty period. In addition to repair or replacement of Products, Manufacturer will credit Customer an amount equal to [*] percent ([*]%) of the price paid by Customer as compensation for removal and reinstallation associated with the repair or replacement of such Products.
9.5 Disclaimer . EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 9 AND SECTION 12, MANUFACTURER DISCLAIMS ALL WARRANTIES ON PRODUCTS FURNISHED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. SECOND SOURCE MANUFACTURER. Customer may in its discretion appoint a second source to manufacture one or more of the Products. Manufacturer will provide Customer reasonable cooperation as necessary to enable manufacturing by the second source of the applicable Product(s), including informing Customer promptly of any future changes in the design or bill of materials for the Product. In addition, to the extent Manufacturer or a Manufacturer affiliate produces any [*], Manufacturer agrees to [*] on a timely basis at [*] the [*] as stated on Manufacturer’s bill of materials provided to Customer for the applicable Product [*].
 
*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.	
 
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11. EXCLUSIVITY.
11.1 Exclusivity Obligation . Unless expressly agreed to by Customer in writing on a case-by-case basis, Manufacturer will not, during the Exclusivity Period set forth in Exhibit E, design or manufacture any Conflicting Product (as defined below) for any other customer, except Existing Customers (as defined below), in any part of the world. This Section does not expand in any way the scope of Manufacturer’s limited license rights with respect to the Product Designs, as granted in Section 7.3 above.
11.2 Definitions . “Conflicting Product” shall mean a [*] and/or [*] (including [*], [*], [*] or [*]) in motion. “Existing Customers” shall mean [*].
11.3 Termination of Exclusivity . The exclusivity obligations in this Section shall terminate in the event any of the following occurs:
1. Breach of Share of Supply . The exclusivity obligations in this Section shall terminate in the event Customer’s total dollar volume with Manufacturer (based on payments and/or issued non-cancellable purchase orders) in any calendar year, for all Products developed by Manufacturer solely or jointly with Customer, [*] percent ([*]%) of Customer’s combined total dollar volume with Manufacturer and Customer’s other manufacturers (if any) for such Products, unless such shortfall is due to Manufacturer’s inability to supply Products according to the volumes and schedules reasonably requested by Customer.
2. Breach of commitment procurement amount : Customer’s purchased and payment amount of Product falls below the amount set in Exhibit E.
12. INDEMNITY.
12.1 Obligation to Indemnify . Manufacturer will, at its expense, defend (or settle) Customer and its officers, directors, agents and Affiliates (collectively, the “ Customer Indemnitees ”) from any suit, action, claim or proceeding (each a “ Claim ”) brought by a third party against any Customer Indemnitees alleging that: (a) any Product or the use or sale thereof by a Customer Indemnitee, infringes, misappropriates or violates any patent, copyright, trade secret or other intellectual property or proprietary rights of such third party; or (b) the use of any Product results in personal injury, death or tangible or real property damage or loss of use therefrom, and will indemnify and hold harmless Customer Indemnitees against any and all loss, damage, cost, liability, and expense (including reasonable fees for attorneys and other experts) awarded as a result of such Claim. The foregoing indemnity shall not apply, however, to the extent a Claim is based on (i) materials (including but not limited to Strategic Materials), designs or software provided by Customer to Manufacturer, (ii) any unauthorized modification of the Products, (iii) any use or combination of the Products with products not supplied by Manufacturer if the Claim could not have arisen absent such use or combination or (iv) continued use of the Products after being notified of the alleged infringement or after being offered the opportunity to modify or obtain a different version of product with equivalent features, functionality and performance, which modification or version would have avoided the alleged infringement. Customer shall promptly notify Manufacturer in writing of any such Claim; (b) provide Manufacturer, at Manufacturer’s expense, any assistance reasonably requested by Manufacturer and necessary for the defense or settlement of such Claim; and (c) allow Manufacturer to direct and control the defense or settlement of such Claim, provided,
 
*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.	
 
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however, that Customer reserves the right to retain counsel to participate in any Claim for which indemnification is sought, at Customer’s expense. Manufacturer will not be responsible for costs relating to Customer’s settlement of a Claim which was settled without Manufacturer’s participation or consent.
12.2 Injunction . If an injunction is issued that limits or prohibits a Customer Indemnitee’s right to use or sell a Product due to Manufacturer’s fault, then Manufacturer will, at its expense, either: (a) procure for the Customer Indemnitee the right to continue to use and sell Product; or (b) replace or modify such Product so that it becomes non-infringing, provided that such modification or replacement does not alter or affect the functionality, use or operation of such Product or the conformity of the Product with the applicable Specifications.
13. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING UNDER SECTION 12 (INDEMNITY) OR A BREACH BY EITHER PARTY OF SECTION 14 (CONFIDENTIALITY), NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
14. CONFIDENTIALITY.
14.1 Definition . “ Confidential Information ” means: (a) all information related to the Products, including, without limitation, documentation, drawings, designs and specifications; (b) any non-public information of a Party, including, without limitation, any information relating to a Party’s technology, techniques, know-how, research, engineering, designs, finances, accounts, procurement requirements, manufacturing, customer lists, business forecasts and marketing plans; (c) any other information of a Party that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that is disclosed orally, is identified as “Confidential” at the time of disclosure, and is summarized in a writing sent by the disclosing Party to the receiving Party within thirty (30) days of any such disclosure; and (d) the specific terms and pricing set forth in this Agreement.
14.2 Exclusions . The obligations in Section 14.3 will not apply to the extent that any Confidential Information: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving Party; (b) was rightfully in the receiving Party’s possession at the time of disclosure, without an obligation of confidentiality; (c) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (d) is rightfully obtained by the receiving Party from a third party without restriction on use or disclosure.
14.3 Obligations . Each Party will not use the other Party’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of its employees and subcontractors that need to know such Confidential Information for the performance of this Agreement, provided that each such employee and subcontractor is subject to a written
 
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agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each Party will use all reasonable efforts to maintain the confidentiality of the other Party’s Confidential Information in its possession or control, but in no event less than the efforts that it ordinarily uses with respect to its own confidential information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to enable it to contest such order or requirement; (b) on a confidential basis to its legal or professional financial advisors; (c) as required under applicable securities regulations; or (d) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party.
14.4 Secrecy policy . Without limiting the other provisions of Section 14, Manufacturer agrees to keep confidential and not disclose to any other person its relationship with Customer or the existence or terms of this Agreement. Manufacturer will establish a secure, dedicated engineering room, accessible only by Customer’s representative and Manufacturer’s authorized employees performing services for Customer, as the only location for documentation, prototypes and other materials related to the services to be provided the Customer in order to protect such information from unauthorized access or disclosure. In addition, Manufacturer will prevent any persons other than Customer’s representatives and Manufacture’s authorized employees from access to the Products, including those parts of Manufacturer’s facilities conducting assembly, testing or shipment of Products.
15. TERM AND TERMINATION.
15.1 Term . The Agreement will begin on the Effective Date and, unless terminated earlier under the terms of this section, will continue for a period of three (3) years. At the end of such period, the Agreement will continue for additional one year periods unless either party notifies the other of its intent not to renew at least ninety (90) days before the end of the period.
15.2 Termination for Cause . Without prejudice to any other right or remedy that may be available to it, each Party may terminate this Agreement immediately upon providing written notice of breach to the other Party, if such other Party: (a) materially breaches any of its obligations hereunder in a manner that is incapable of remedy; or (b) materially breaches any of its obligations hereunder in a manner that is capable of remedy, but fails to cure such breach within a period of thirty (30) days following receipt of such written notice; or (c) beginning December 01, 2011, if Customer does not submit any purchase order during any three (3) month period.
15.3 Termination for Convenience . Customer may terminate this Agreement or an individual Statement of Work, for any reason or for no reason, upon One Hundred Eighty (180) days prior written notice to Manufacturer.
15.4 Termination for Financial Reasons . Either Party may terminate this Agreement in the event the other Party: (a) seeks the liquidation, reorganization, dissolution or winding up of itself or the composition or readjustment of all or substantially all of its debts;
 
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(b) applies for or consents to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or substantially all of its assets; (c) makes a general assignment for the benefit of its creditors; (d) commences or has commenced against it a case under the U.S. or International bankruptcy code; or (e) files a petition for relief or otherwise seeks relief from or readjustment of its debts under any other law relating to bankruptcy, insolvency, reorganization, winding-up or composition or readjustment of debts (including, without limitation, consenting to the entry of an order for relief in an involuntary bankruptcy case against it).
15.5 Effect of Termination .
(a) Unless otherwise specified by Customer in writing, upon termination or expiration of this Agreement for any reason (other than Customer’s breach), Manufacturer will continue to process and deliver to Customer (or to such other location as indicated on any applicable Purchase Order) any Products ordered pursuant to Purchase Orders transmitted by Customer prior to the effective date of any such termination or expiration.
(b) Promptly following termination or expiration of this Agreement for any reason (but in no event more than thirty (30) days): (i) provided Customer is not in default of any payment obligation with respect to any agreed fee and NRE fee, Manufacturer will deliver to Customer all bills of materials, schematics, software and other materials and documentation not previously provided to Customer that are necessary to manufacture the Products; (ii) provided Customer is not in default of any payment obligation with respect to any tooling fees and payments, Manufacturer will allow Customer to take possession of and remove all Customer-Owned Tooling; (iii) each Party will return or destroy all Confidential Information of the other Party except and for only so long as necessary to fulfill its remaining obligations hereunder.
(c) Upon termination or expiration of this Agreement, Customer will pay Manufacturer in accordance with the terms of Section 5.3 for any accepted Products ordered prior to such termination or expiration, provided that Customer shall have the right to terminate any pending order in the event of termination due to Manufacturer’s breach.
15.6 Survival . The provisions of Sections 1 (Definitions), 2.3 (Tooling Use and Care), 5 (Pricing and Payment Terms), 6 (Product Delivery), 7 (Intellectual Property Rights), 9 (Warranty), 12 (Indemnity), 13 (Limitation of Liability), 14 (Confidentiality), 15.5 (Effect of Termination), 15.6 (Survival) and 16 (General), will survive termination or expiration of this Agreement for any reason.
16 . GENERAL.
16.1 Assignment . Neither Party may assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that no consent will be required for an assignment in connection with a merger, acquisition, corporate reorganization, or sale of all, or substantially all, of a Party’s assets or Manufacturer factoring its account receivable to any third party. Any attempted assignment in violation of this Section will be null and void and of no force or effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
 
14

16.2 Governing Law; Arbitration . This Agreement will be governed by and construed in accordance with the laws of the State of California, U.S.A., excluding that body of laws known as conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any dispute arising out of or in connection with this Agreement shall be finally settled by binding arbitration in San Jose, California under the Commercial Arbitration Rules of the American Arbitration Association, before a panel of three arbitrators selected by the parties (or, if not selected within fifteen (15) days of a Request for Arbitration, appointed by the Association pursuant to its rules), who have practiced as a lawyer or judge for at least ten (10) years and who are reasonably familiar with the business pertaining to the industries covered by this Agreement. The arbitration and all pleadings and written evidence shall be in the English language. Judgment on the award may be entered in any court having jurisdiction thereof or having jurisdiction over either of the parties or its assets. Notwithstanding the foregoing, Customer shall at all times have the right to commence proceedings in any other court of its choice of appropriate jurisdiction to obtain an injunction, specific performance or other equitable relief for protection of intellectual property rights, without breach of this arbitration agreement and without any abridgment of the power of the arbitrator.
16.3 Compliance with Laws . Each Party will comply with all laws, regulations and ordinances applicable to such Party in the exercise of its rights and obligations under this Agreement.
16.4 Severability . If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, then such provision will automatically be adjusted to the minimum extent necessary in order to comply with the requirements for validity or enforceability, and as so adjusted, will be deemed a provision of this Agreement as though originally included herein. In the event that the provision held invalid or unenforceable is of such a nature that it cannot be so adjusted, such provision will be deemed deleted from this Agreement as though such provision had never been included herein. In either case, the remaining provisions of this Agreement will remain in full force and effect.
16.5 Non-Waiver . The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. The waiver of any provision of this Agreement will only be effective if in writing and signed by the Party waiving such provision.
16.6 Notices . All notices required or permitted under this Agreement will be in writing and will be delivered in person, by nationally recognized courier service, by facsimile or by registered or certified mail (postage prepaid, return receipt requested) and, in all cases, will be deemed to have been given upon receipt. All such notices will be delivered to the Parties at the addresses set forth on the first page of this Agreement (or at such other address for a Party as will be specified by like notice).
 
15

16.7 Force Majeure . Neither Party will be responsible or liable to the other Party for any failure or delay in its performance under this Agreement due to natural disasters, war, terrorism, utilities failures, general strikes or riot (each a “ Force Majeure ”). In the event of a Force Majeure, the Party who is unable to perform or whose performance is delayed will promptly notify the other Party of the Force Majeure and will use its best efforts to resume performance. Performance will be excused for a period of time equal to the duration of such Force Majeure, but in no event longer than sixty (60) days. However under the condition of force majeure or natural disaster happening at Manufacturer or Manufacturers’ vendors, Customer shall not reject Manufacturer’s request to reschedule.
16.8 Relationship between the Parties . The relationship between the Parties will be that of independent contractors and nothing in this Agreement is intended to nor will establish any relationship of partnership, joint venture, employment, franchise, agency or other form of legal association between the Parties. Neither Party will have, nor represent to any third party that it does have, any power or authority to bind the other Party or incur any obligations on the other Party’s behalf.
16.9 Attorneys’ Fees . In any suit or proceeding involving a dispute between the Parties relating to this Agreement, the prevailing Party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs of arbitration and enforcement of any award.
16.10 Remedies . Except as expressly set forth in this Agreement, the exercise by either Party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
16.11 Entire Agreement . This Agreement, including its exhibits and attachments, constitutes the entire and exclusive understanding and agreement between the Parties regarding its subject matter and supersedes any and all previous understandings and agreements, whether written or oral, regarding such subject matter. Any modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both Parties.
16.12 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.
[Signature Page Follows]
 
16

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date by their duly authorized representatives.

Chicony Electronics Co. Ltd.	 		 	Woodman Labs, Inc.	
					
By:	 	/s/ M.K. Lin	 		 	By:	 	/s/ Nicholas Woodman	
Name: M.K. Lin	 		 	Name: Nicholas Woodman	
Title:   CEO	 		 	Title:   CEO	
					
By:	 	/s/ Allen Huang	 		 	By:	 	/s/ Kurt Amundson	
Name: Allen Huang	 		 	Name: Kurt Amundson	
Title:   President, Digital Image Business Unit	 		 	Title:   CFO	
[Signature Page to Design, Manufacturing and Supply Agreement]
 
17

Exhibit A
Initial Statement of Work
 
A.	General Description of Services:	
Manufacturer will: (i) finalize the Product design and generate a corresponding final Specification to Customer’s satisfaction, which will be based on the preliminary specification attached to this Statement of Work; (ii) procure tooling and perform factory set-up; (iii) manufacture and deliver prototypes; (iv) obtain all regulatory certifications and other customary third-party approvals for manufacture, distribution, and operation of the Products; and (v) perform testing, consultation, and other appropriate services incidental to the foregoing.
 
B.	Development Schedule:	

Milestone	  	Due Date	

 	  	 	

 	  	 	
 
D.	NRE Fees and Payment Terms:	
 
1.	Design NRE	

Industrial and Mechanical Design	  	$	            	  	
Hardware Design	  	$	            	  	
Software Design	  	$	            	  	
Prototypes Cost	  	$	            	  	
Total Design NRE:	  	$	            	  	
Design NRE Cost Payment Terms
     % upon confirmation of project with PO.
     % upon delivery of              units of working prototypes.
     % upon final acceptance of commercial version.
Additional units of beta samples are chargeable at US$              per unit.
 
2.	Tooling NRE	
Tooling NRE Cost Payment Terms
Woodman Labs, Inc. Confidential

3.	Regulatory Approvals	

- FCC	  	$	            	  	
- CE, TUV, RoHS	  	$	            	  	
- CSA, UL	  	$	            	  	
Total Regulatory Cost:	  	$	            	  	
Regulatory Cost Payment Terms
100% upon confirmation to submit for regulatory certifications.
Total NRE Cost (In US Dollars) $
 
2

Exhibit B
Build Schedule Flexibility
Customer may, on written notice to Manufacturer, increase or decrease ordered Product quantities according to the following limits. Manufacturer will use best efforts to meet any increased quantities substantially in accordance with the original scheduled delivery date.

Days Prior to Scheduled Delivery	  	Customer Order Flexibility	
0-30 days	  	+/- [*]%	
31-60 days	  	+/- [*]%	
61-90 days	  	+/- [*]%	
91+ days	  	      [*]%	
Woodman Labs, Inc. Confidential
 
*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.	

Exhibit C
Pricing
Pricing for Products covered by the Statement of Work in Exhibit A will be as follows. Pricing for Products under any future Statement(s) of Work will be as mutually agreed by the Parties in the applicable Statement of Work or in a written amendment to this Exhibit.
Woodman Labs, Inc. Confidential

Exhibit D
Product Support
Manufacturer will provide Customer with the following support services for the Products:
 
1.	Technical Support .	
Manufacturer will assign a team dedicated to supporting Customer during the production phase. Manufacturer will provide name of each support team member assigned, and will notify Customer promptly of any changes.
 
2.	Defect Report Response .	
In case of defect or return, Customer will notify Manufacturer of the defect and, where appropriate, provide defective samples. Defects will be allocated to one of the following levels:
Level A: safety or regulations
Level B: high level issues, all customers will complain
Level C: critical customers will complain
Level D: minor issues
Level E: for information only
Manufacturer must acknowledge receipt of notice within 24 hours. Manufacturer will provide support based on the allocated level as follows:
Level A: Stop production and shipments immediately. Evaluate the issue and provide a temporary solution within 24 hours. Within 48 hours, provide a full action plan to resolve the issue. No production and shipment allowed without Customer’s approval.
Level B: Hold shipment or manufacturing based on the type of issue. Set up immediately in the production line a check-point to sort out units with the issue before restarting shipment and production. Check 100% of the affected Product before shipment. Within 48 hours, provide a full action plan.
Level C: Set up immediately in the production line a check-point to sort out units with this issue before restarting shipment and production. Check 100% of the affected Product before shipment. Within 96 hours, provide a full action plan.
Level D: Within 1 week provide a full action plan to close this issue.
Level E: Evaluate issue and provide a written report to Customer within 2 weeks. No action in the production or shipment is required at this point of time.
Woodman Labs, Inc. Confidential
 
2

Exhibit E
Exclusivity Period
Exclusivity Period shall be the period beginning on the Effective Date of this Agreement and continuing until [*] ([*]) [*] from the Effective Date unless [*]. Such period (i) shall be extended to [*] of Products by [*] ([*]) [*] from the Effective Date, and (ii) shall be extended to [*] of Products by [*], and (iii) shall be extended further until [*], if Customer has [*] during [*]. However, in the event Manufacturer enters into an agreement to design or supply [*] to an Existing Customer, then the foregoing amounts shall be reduced to USD$[*], USD$[*], and USD$[*].
Woodman Labs, Inc. Confidential
 
*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.	

Exhibit 10.15
EXECUTION COUNTERPART
J.P. Morgan
CREDIT AGREEMENT
dated as of
December 21, 2012
among
WOODMAN LABS, INC., D/B/A GOPRO
The Guarantors Party Hereto
The Lenders Party Hereto
with
CITIBANK, N.A. and BARCLAYS BANK PLC,
As Co-Syndication Agents,
SILICON VALLEY BANK
As Documentation Agent,
and
JPMORGAN CHASE BANK,
as Administrative Agent

J.P. MORGAN SECURITIES LLC, CITIBANK, N.A., BARCLAYS BANK PLC AND SILICON VALLEY BANK, as Joint Bookrunners
and
J.P. MORGAN SECURITIES LLC,
as Sole Lead Arranger

TABLE OF CONTENTS

 	 	 	  	Page	 	
		
ARTICLE I Definitions	  	 	1	  	
			
SECTION 1.01	 	Defined Terms	  	 	1	  	
			
SECTION 1.02	 	Classification of Loans and Borrowings	  	 	25	  	
			
SECTION 1.03	 	Terms Generally	  	 	25	  	
			
SECTION 1.04	 	Accounting Terms; GAAP	  	 	25	  	
		
ARTICLE II The Credits	  	 	26	  	
			
SECTION 2.01	 	Commitments	  	 	26	  	
			
SECTION 2.02	 	Loans and Borrowings	  	 	26	  	
			
SECTION 2.03	 	Requests for Revolving Borrowings	  	 	27	  	
			
SECTION 2.04	 	Procedure for Term Borrowing	  	 	28	  	
			
SECTION 2.05	 	Swingline Loans	  	 	28	  	
			
SECTION 2.06	 	Letters of Credit	  	 	29	  	
			
SECTION 2.07	 	Funding of Borrowings	  	 	33	  	
			
SECTION 2.08	 	Interest Elections	  	 	34	  	
			
SECTION 2.09	 	Termination and Reduction of Commitments	  	 	35	  	
			
SECTION 2.10	 	Repayment of Loans; Evidence of Debt	  	 	36	  	
			
SECTION 2.11	 	Prepayment of Loans	  	 	37	  	
			
SECTION 2.12	 	Fees	  	 	40	  	
			
SECTION 2.13	 	Interest	  	 	41	  	
			
SECTION 2.14	 	Alternate Rate of Interest	  	 	42	  	
			
SECTION 2.15	 	Increased Costs	  	 	42	  	
			
SECTION 2.16	 	Break Funding Payments	  	 	44	  	
			
SECTION 2.17	 	Taxes	  	 	44	  	
 
-i-

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	 	
			
SECTION 2.18	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	  	 	48	  	
			
SECTION 2.19	 	Mitigation Obligations; Replacement of Lenders	  	 	50	  	
			
SECTION 2.20	 	Defaulting Lenders	  	 	50	  	
			
SECTION 2.21	 	Increase in Revolving Facility	  	 	52	  	
		
ARTICLE III Representations and Warranties	  	 	53	  	
			
SECTION 3.01	 	Organization; Powers	  	 	53	  	
			
SECTION 3.02	 	Authorization; Enforceability	  	 	54	  	
			
SECTION 3.03	 	Governmental Approvals; No Conflicts	  	 	54	  	
			
SECTION 3.04	 	Financial Condition; No Material Adverse Change	  	 	54	  	
			
SECTION 3.05	 	Properties	  	 	55	  	
			
SECTION 3.06	 	Litigation and Environmental Matters	  	 	55	  	
			
SECTION 3.07	 	Compliance with Laws and Agreements	  	 	56	  	
			
SECTION 3.08	 	Investment Company Status	  	 	56	  	
			
SECTION 3.09	 	Taxes	  	 	56	  	
			
SECTION 3.10	 	ERISA	  	 	56	  	
			
SECTION 3.11	 	Disclosure	  	 	57	  	
			
SECTION 3.12	 	Foreign Assets Control Regulations, Etc.	  	 	57	  	
			
SECTION 3.13	 	Embargoed Person	  	 	57	  	
			
SECTION 3.14	 	Subsidiaries	  	 	58	  	
			
SECTION 3.15	 	Solvency	  	 	58	  	
			
SECTION 3.16	 	Casualty, Etc.	  	 	58	  	
			
SECTION 3.17	 	Labor Matters	  	 	58	  	
			
SECTION 3.18	 	Margin Regulations	  	 	59	  	
			
SECTION 3.19	 	Security Documents	  	 	59	  	
 
-ii-

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	 	
		
ARTICLE IV Conditions	  	 	59	  	
			
SECTION 4.01	 	Effective Date	  	 	59	  	
			
SECTION 4.02	 	Each Credit Event	  	 	61	  	
		
ARTICLE V Affirmative Covenants	  	 	61	  	
			
SECTION 5.01	 	Financial Statements and Other Information	  	 	61	  	
			
SECTION 5.02	 	Notices of Material Events	  	 	63	  	
			
SECTION 5.03	 	Existence; Conduct of Business	  	 	63	  	
			
SECTION 5.04	 	Payment of Obligations	  	 	64	  	
			
SECTION 5.05	 	Maintenance of Properties; Insurance	  	 	64	  	
			
SECTION 5.06	 	Books and Records; Inspection Rights	  	 	64	  	
			
SECTION 5.07	 	Compliance with Laws	  	 	64	  	
			
SECTION 5.08	 	Use of Proceeds and Letters of Credit	  	 	64	  	
			
SECTION 5.09	 	Accuracy of Information	  	 	65	  	
			
SECTION 5.10	 	Certain Obligations Regarding Subsidiaries	  	 	65	  	
		
ARTICLE VI Negative Covenants	  	 	66	  	
			
SECTION 6.01	 	Indebtedness	  	 	66	  	
			
SECTION 6.02	 	Liens	  	 	67	  	
			
SECTION 6.03	 	Fundamental Changes	  	 	68	  	
			
SECTION 6.04	 	Dispositions	  	 	69	  	
			
SECTION 6.05	 	Investments, Loans, Advances, Guarantees and Acquisitions	  	 	70	  	
			
SECTION 6.06	 	Swap Agreements	  	 	70	  	
			
SECTION 6.07	 	Restricted Payments	  	 	70	  	
 
-iii-

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	 	
			
SECTION 6.08	 	Transactions with Affiliates	  	 	71	  	
			
SECTION 6.09	 	Restrictive Agreements	  	 	71	  	
			
SECTION 6.10	 	Changes in Fiscal Periods	  	 	72	  	
			
SECTION 6.11	 	Amendments to Organizational Documents	  	 	72	  	
			
SECTION 6.12	 	Optional Payments and Modifications of Certain Debt Instruments	  	 	72	  	
			
SECTION 6.13	 	Certain Financial Covenants	  	 	73	  	
		
ARTICLE VII Events of Default	  	 	73	  	
		
ARTICLE VIII Guarantee	  	 	76	  	
			
SECTION 8.01	 	Guaranty	  	 	76	  	
			
SECTION 8.02	 	Rights of Lenders	  	 	77	  	
			
SECTION 8.03	 	Certain Waivers	  	 	77	  	
			
SECTION 8.04	 	Obligations Independent	  	 	77	  	
			
SECTION 8.05	 	Subrogation	  	 	78	  	
			
SECTION 8.06	 	Termination; Reinstatement	  	 	78	  	
			
SECTION 8.07	 	Subordination	  	 	78	  	
			
SECTION 8.08	 	Stay of Acceleration	  	 	78	  	
			
SECTION 8.09	 	Condition of Borrower	  	 	79	  	
			
SECTION 8.10	 	General Limitation on Guarantee Obligations	  	 	79	  	
		
ARTICLE IX The Administrative Agent	  	 	79	  	
		
ARTICLE X Miscellaneous	  	 	82	  	
			
SECTION 10.01	 	Notices	  	 	82	  	
			
SECTION 10.02	 	Waivers; Amendments	  	 	82	  	
			
SECTION 10.03	 	Expenses; Indemnity; Damage Waiver	  	 	84	  	
 
-iv-

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	 	
			
SECTION 10.04	 	Successors and Assigns	  	 	85	  	
			
SECTION 10.05	 	Survival	  	 	89	  	
			
SECTION 10.06	 	Counterparts; Integration; Effectiveness	  	 	89	  	
			
SECTION 10.07	 	Severability	  	 	89	  	
			
SECTION 10.08	 	Right of Setoff	  	 	89	  	
			
SECTION 10.09	 	Governing Law; Jurisdiction; Consent to Service of Process	  	 	90	  	
			
SECTION 10.10	 	WAIVER OF JURY TRIAL	  	 	90	  	
			
SECTION 10.11	 	Headings	  	 	91	  	
			
SECTION 10.12	 	Confidentiality	  	 	91	  	
			
SECTION 10.13	 	Material Non-Public Information	  	 	91	  	
			
SECTION 10.14	 	Authorization to Distribute Certain Materials to Public-Siders	  	 	92	  	
			
SECTION 10.15	 	Interest Rate Limitation	  	 	93	  	
			
SECTION 10.16	 	USA PATRIOT Act	  	 	93	  	
			
SCHEDULES :	 		  				
			
Schedule 1.1A	 	Existing Indebtedness	  				
			
Schedule 2.01	 	Lenders and Commitments	  				
			
Schedule 3.06	 	Litigation	  				
			
Schedule 3.14	 	Subsidiaries	  				
			
Schedule 3.19	 	Security Documents	  				
			
Schedule 6.01	 	Indebtedness	  				
			
Schedule 6.02	 	Liens	  				
			
Schedule 6.09	 	Restrictive Agreements	  				
 
-v-

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	
			
EXHIBITS:	 		  		
		
Exhibit A	 	Form of Assignment and Assumption	
		
Exhibit B-1	 	Form of Revolving Note	
		
Exhibit B-2	 	Form of Tranche A Term Note	
		
Exhibit C-1	 	U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)	
		
Exhibit C-2	 	U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal Income Tax Purposes)	
		
Exhibit C-3	 	U.S. Tax Certificate (For Non-U.S. Participants that are not Partnerships for U.S. Federal Income Tax Purposes)	
		
Exhibit C-4	 	U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal Income Tax Purposes)	
		
Exhibit D	 	Form of Compliance Certificate	
 
-vi-

CREDIT AGREEMENT dated as of December 21, 2012, among WOODMAN LABS, INC., D/B/A GOPRO, a Delaware corporation; the GUARANTORS party hereto; the LENDERS party hereto; and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, 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.
“ Account Control Agreement ” means an agreement, reasonably satisfactory to the Administrative Agent, among the Borrower or any other applicable Loan Party, the Administrative Agent and a depository and/or securities intermediary pursuant to which the Administrative Agent is granted “control” (as that term is used in the UCC) over a deposit or securities account of the borrower or such Loan Party.
“ Adjusted LIBO Rate ” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“ Administrative Agent ” means JPMorgan Chase Bank, National Association, in its capacity as administrative agent for the Lenders hereunder.
“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“ Agency Site ” means the Intralinks or other electronic platform site established by the Administrative Agent to administer this Agreement.
“ Aggregate Exposure ” means, with respect to any Lender at any time, an amount equal to (a) until the Effective Date, the aggregate amount of such Lender’s Commitments at such time and (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans and (ii) the amount of such Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender’s Revolving Credit Exposure.
 
-1-

“ 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 LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate appearing on the Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) at approximately 11:00 A.M. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO 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 LIBO Rate, respectively.
“ Applicable Percentage ” means, with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time; provided that in the case of Section 2.20 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the ratio (expressed as a percentage) of the Aggregate Exposure of all Lenders (disregarding any Defaulting Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, disregarding the amount of such Defaulting Lender’s Revolving Credit Exposure) represented by such Lender’s Aggregate Exposure.
“ Applicable Rate ” means, for any day, with respect to any ABR Loan (including any Swingline Loan) or Eurodollar Loan, or with respect to the facility fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “ABR Spread”, “Eurodollar Spread” or “Facility Fee Rate”, as the case may be, based upon the Consolidated Leverage Ratio as of the most recent determination date; provided , that the “Applicable Rate” shall be the applicable rate per annum set forth below in Pricing Level II until the Administrative Agent has received the Financial Statements of the Borrower and its Subsidiaries required under Section 5.01(b) for the Borrower’s first fiscal year Ending December 31, 2012 (unless such Financial Statements demonstrate that Pricing Level II or III should have been applicable during such period, in which case such other Pricing Level shall be deemed to be applicable during such period):

 	  	Consolidated
Leverage Ratio:	  	ABR
Spread	 	 	Eurodollar
Spread	 	 	Facility Fee
Rate	 	
					
Pricing Level I:	  	Greater than or equal
to 2.00 to 1.00	  	 	3.75	% 	 	 	2.75	% 	 	 	0.50	% 	

Pricing Level II:	  	Less than 2.00 to
1.00 but greater than
or equal to 1.00 to
1.00	  	 	3.50	% 	 	 	2.50	% 	 	 	0.50	% 	

Pricing Level III:	  	Less than 1.00 to
1.00 but greater than
or equal to 0.50 to
1.00	  	 	3.25	% 	 	 	2.25	% 	 	 	0.50	% 	

Pricing Level IV:	  	Less than 0.50 to
1.00	  	 	3.00	% 	 	 	2.00	% 	 	 	0.375	% 	

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For purposes of the foregoing, (i) the Consolidated Leverage Ratio shall be determined as of the end of each fiscal quarter of the Borrower’s fiscal year based on the Borrower’s Financial Statements delivered pursuant to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall be effective during the period commencing on and including the date three Business Days after receipt by the Administrative Agent of such Financial Statements indicating such change and ending on the date immediately preceding the effective date of the next such change; provided that the Consolidated Leverage Ratio shall be deemed to be at the highest Pricing Level (A) at any time that an Event of Default has occurred and is continuing or (B) if the Borrower fails to deliver the Financial Statements required to be delivered by it pursuant to Section 5.01(a) or (b), during the period commencing three Business Days after such required date of delivery and ending on the date that is three Business Days after such Financial Statements are actually delivered.
“ Applicable Revolving Percentage ” means, with respect to any Revolving Lender at any time, the ratio (expressed as a percentage) of such Lender’s Revolving Commitment at such time to the aggregate Revolving Commitments of all Revolving Lenders at such time; provided that in the case of Section 2.20 when a Defaulting Lender shall exist, “Applicable Revolving Percentage” shall mean the ratio (expressed as a percentage) of the aggregate Revolving Commitments of all Lenders (disregarding any Defaulting Lender’s Revolving Commitment then in effect) represented by such Lender’s Revolving Commitment.
“ Approved Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business 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.
“ Arranger ” means J.P. Morgan Securities LLC.
“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.
“ Availability Period ” means the period from and including the Effective Date to but excluding the earlier of the Revolving Commitment Termination Date and the date of termination of the Commitments.
“ Bankruptcy Event ” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, liquidator, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination
 
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of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided , further , that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“ Beneficial Owner ” means, with respect to any U.S. Federal withholding Tax, the beneficial owner, for U.S. Federal income tax purposes, to whom such Tax relates.
“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.
“ Borrower ” means Woodman Labs, Inc., d/b/a GoPro, a Delaware corporation.
“ Borrowing ” means (a) Loans (excluding Swingline Loans) of the same 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, or (b) a Swingline Loan.
“ Borrowing Request ” means a request by the Borrower for a Borrowing in accordance with Section 2.03.
“ 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.
“ Cash Management Agreement ” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
“ Cash Management Bank ” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.
“Cayman Pledge” means the share mortgage dated the date hereof between the Borrower and the Administrative agent.
 
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“ CFC ” means a Person that is a controlled foreign corporation under Section 957 of the Code.
“ Change in Control ” means:
(a) at any time prior to the creation of a Public Market, either (i) the Controlling Shareholder shall cease to own, beneficially and of record, either directly or indirectly, equity securities in the Borrower representing more than 40% of the combined voting power of all of equity securities entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that the Controlling Shareholder has the right to acquire pursuant to any option right (as defined in clause (b) below)), or (ii) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the Controlling Shareholder owns and controls legally and beneficially, either directly or indirectly, more equity securities in the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis than the Controlling Shareholder owns and controls legally and beneficially, either directly or indirectly (and taking into account all such securities that such “person”, “group” or the Controlling Shareholder has the right to acquire pursuant to any option right (as defined in clause (b) below)); or
(b) at any time after the creation of a Public Market, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the Controlling Shareholder becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 25% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such “person” or “group” has the right to acquire pursuant to any option right); or
(c) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or
 
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(d) any Person or two or more Persons acting in concert (other than the Controlling Shareholder) shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Borrower, or control over the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire pursuant to any option right) representing 25% or more of the combined voting power of such securities; or
(e) the Borrower shall cease, directly or indirectly, to own and control legally and beneficially all of the Equity Interests (other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under applicable law) in each Guarantor free and clear of all Liens (except Liens created by the Security Documents).
“ Change in Law ” the occurrence after the date of this Agreement or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement) (a) the adoption of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with 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 or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in “Law”, regardless of the date enacted, adopted or issued.
“ Cineform ” means Cineform, Inc., a Delaware corporation.
“ Class ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Tranche A Loans or Swingline Loans, and when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or Tranche A Term Loan Commitment.
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Collateral ” means all of the “Collateral” referred to in the Security Documents and all of the other property that is or is intended under the terms of the Security Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.
 
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“ Collateral Access Agreement ” has the meaning assigned to such term in the Security Agreement.
“ Collateral Account ” has the meaning assigned to such term in the Security Agreement.
“ Commitment ” means a Revolving Commitment or Tranche A Term Loan Commitment, or any combination thereof (as the context requires).
“Compliance Certificate” means a compliance certificate in substantially the form of Exhibit D.
“ 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 Current Assets ”: means, at any date, all amounts (other than cash and Permitted Investments) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date.
“ Consolidated Current Liabilities ”: means, at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date, but excluding (a) the current portion of any Consolidated Funded Debt of the Borrower and its Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness consisting of Revolving Loans or Swingline Loans to the extent otherwise included therein.
“ Consolidated EBITDA ” means, for any period, an amount equal to Consolidated Net Income of the Borrower and its Subsidiaries on a consolidated basis for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Expense, (ii) the provision for Federal, state, local and foreign income taxes payable, (iii) depreciation and amortization expense, (iv) other non-recurring expenses reducing such Consolidated Net Income which do not represent a cash item in such period or any future period (in each case of or by the Borrower and its Subsidiaries for such period) and (v) non-cash expenses relating to stock options and other equity-based compensation expenses, and minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits and (ii) all non-cash items increasing Consolidated Net Income (in each case of or by the Borrower and its Subsidiaries for such period).
“ Consolidated Funded Debt ” means, as of any date of determination, for the Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business),
 
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(e) all Capital Lease Obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is a general partner or joint venture, unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.
“ Consolidated Interest Coverage Ratio ” means, as at any date of determination thereof, the ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal quarters ending on or most recently ended prior to such date to (b) Consolidated Interest Expense for such period.
“ Consolidated Interest Expense ” means, for any period, total interest expense (including that attributable to Capital Lease Obligations) of the Borrower and its Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP).
“ Consolidated Leverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Funded Debt as of such date to (b) Consolidated EBITDA for the most recently completed four fiscal quarters of the Borrower.
“ Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation (other than under any Loan Document) or requirement of law applicable to such Subsidiary.
“ Consolidated Working Capital ”: means, at any date, the excess of Consolidated Current Assets on such date over Consolidated Current Liabilities on such date.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.
“ Controlled Affiliate ” has the meaning assigned to it in Section 3.12.
 
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“ Controlling Shareholder ” means, collectively, Nicholas Woodman and Jill R. Woodman, as Co-Trustees of the Woodman Family Trust under Trust Agreement dated March 11, 2011.
“ Credit Party ” means the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender.
“ Default ” means any of the events specified in clauses (a) through (o) of Article VII, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“ Defaulting Lender ” means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other similar syndicated agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of a Bankruptcy Event.
“ Disclosed Matters ” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06.
“ Disposition ” means, with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, license, transfer or other disposition thereof. The terms “ Dispose ” and “ Disposed of ” shall have correlative meanings.
“ Dividend ” means the payment by the Borrower of a pro rata dividend to all of its equityholders on the Effective Date in accordance with applicable law.
“ dollars ” or “ $ ” refers to lawful money of the United States of America.
“ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any political subdivision of the United States.
 
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“ Effective Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 10.02).
“ Embargoed Person ” has he meaning assigned to it in Section 3.13.
“ Environmental Laws ” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) 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 into the environment 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 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, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.
“ Equity Issuance ” means (a) any issuance or sale by the Borrower or any of its Subsidiaries after the Effective Date of (i) any of its Equity Interests, (ii) any warrants or options exercisable in respect of its Equity Interests (other than any warrants or options issued to directors, officers or employees of the Borrower or any of its Subsidiaries pursuant to employee benefit plans established in the ordinary course of business and which plans were disclosed to the Administrative Agent and Lenders in writing and any Equity Interests of the Borrower issued upon the exercise of such warrants or options) or (iii) any other security or instrument representing an equity interest (or the right to obtain any equity interest) in the Borrower or any of its Subsidiaries or (b) the receipt by the Borrower or any of its Subsidiaries after the Effective Date of any capital contribution (whether or not evidenced by any equity security issued by the recipient of such contribution); provided that Equity Issuance shall not include (x) any such issuance or sale by any Subsidiary of the Borrower to the Borrower or any Wholly Owned Subsidiary of the Borrower or (y) any capital contribution by the Borrower or any Wholly Owned Subsidiary of the Borrower to any Subsidiary of the Borrower.
“ 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 the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
 
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“ ERISA Event ” means (a) any “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 the 30 day notice period is waived); (b) the existence with respect to any Plan of an “ accumulated funding deficiency ” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower 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; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower 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.
“ 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 LIBO Rate.
“ Event of Default ” means any of the events specified in clauses (a) through (o) of Article VII, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“ Excess Cash Flow ” means, for any fiscal year of the Borrower, the excess (if any) of (a) the sum (for such fiscal year) of (i) Consolidated EBITDA and (ii) decreases in Consolidated Working Capital, over (b) the sum (for such fiscal year) of (i) Consolidated Interest Expense actually paid in cash by the Borrower and its Subsidiaries, (ii) scheduled principal repayments, to the extent actually made, of Term Loans pursuant to Section 2.10(a)(iii) which are not debt financed or debt refinanced, (iii) all income taxes actually paid in cash by the Borrower and its Subsidiaries, (iv) unfinanced Capital Expenditures actually made by the Borrower and its Subsidiaries in such fiscal year and (v) increases in Consolidated Working Capital for such fiscal year.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Excluded Subsidiary ” means any Subsidiary that is a CFC (and any subsidiary that would be a CFC but had made an election to be treated as disregarded or as a partnership for U.S. income tax purposes) and in respect of which either (a) the pledge of all of the Equity Interests of such Subsidiary as Collateral or (b) the guaranteeing by such Subsidiary of the Obligations, would result in material adverse tax consequences to the Borrower.
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the
 
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laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(h) and (d) any U.S. Federal withholding Taxes imposed under FATCA.
“ Executive Order ” has the meaning assigned to it in Section 3.13.
“ Existing Indebtedness ” means the Indebtedness described in Schedule 1.1A.
“ Extraordinary Receipt ” means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments; provided , that an Extraordinary Receipt shall not include cash receipts from proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments to the extent that such proceeds, awards or payments in respect of loss or damage to equipment, fixed assets or real property are applied (or in respect of which expenditures were previously incurred) to replace or repair the equipment, fixed assets or real property in respect of which such proceeds were received in accordance with the terms of Section 2.11(b)(iv).
“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“ Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“ Fee Letter ” means the letter agreement, dated November 21, 2012, among the Borrower, the Administrative Agent and the Arranger.
 
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“ Financial Officer ” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.
“ Financial Statements ” means the financial statements to be furnished pursuant to Sections 5.01(a) and (b).
“ Foreign Assets Control Regulations ” has the meaning assigned to it in Section 3.13.
“ Foreign Benefit Arrangement ” means any employee benefit arrangement mandated by non-U.S. law that is maintained or contributed to by the Borrower, any Subsidiary or any ERISA Affiliate.
“ Foreign Lender ” means (a) if the Borrower is a U.S. Person, a Lender, with respect to such Borrower, that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
“ Foreign Plan ” means each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) that is not subject to U.S. law and is maintained or contributed to by the Borrower, any Subsidiary or any ERISA Affiliate.
“ Foreign Plan Event ” means, with respect to any Foreign Benefit Arrangement or Foreign Plan, (a) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Benefit Arrangement or Foreign Plan; (b) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Benefit Arrangement or Foreign Plan required to be registered; or (c) the failure of any Foreign Benefit Arrangement or Foreign Plan to comply with any material provisions of applicable law and regulations or with the material terms of such Foreign Benefit Arrangement or Foreign Plan.
“ GAAP ” means generally accepted accounting principles in the United States of America.
“ Governmental Authority ” means the government of the United States of America, the Cayman Islands, 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.
“ 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 or other obligation 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 other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition
 
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or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
“Guarantee Assumption Agreement” means a Guarantee Assumption Agreement, in form and substance reasonably satisfactory of the Administrative Agent, by and entity that, pursuant to Section 5.10, is required to become a “Guarantor” hereunder in favor of the Administrative Agent and Lenders.
“ Guarantors ” means, collectively, Cineform and each other Subsidiary that shall be required to execute and deliver a guaranty or guaranty supplement pursuant to Section 5.10.
“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“ Hedge Bank ” means any Person that, at the time it enters into a Swap Agreement permitted under Article VI, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Agreement.
“ 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 upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) 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, (g) the liquidation value of all mandatorily redeemable preferred Equity Interests of such Person that are redeemable prior to the Revolving Commitment Termination Date, (h) all Guarantees by such Person of Indebtedness of others, (i) all Capital Lease Obligations of such Person, (j) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit, surety bonds, letters of guaranty and similar arrangements, (k) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (l) all obligations of the kind referred to in clauses (a) through (k) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and (l) for the purposes of clause (g) of Article VII only, all obligations of such Person in respect of Swap Agreements. 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.
 
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“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“ Ineligible Institution ” has the meaning assigned to it in Section 10.04(b).
“ Interest Election Request ” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.08.
“ Interest Payment Date ” means (a) with respect to any ABR Loan (other than a Swingline Loan), the last day of each March, June, September and December, (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 and (c) with respect to any Swingline Loan, the day that such Loan is required to be repaid.
“ Interest Period ” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower may elect; provided , that (i) 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 and (ii) any Interest Period pertaining to a Eurodollar Borrowing 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 of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“ IRS ” means the United States Internal Revenue Service.
“ Issuing Bank ” means each of JPMorgan Chase Bank, National Association, and any other Revolving Lender approved by the Administrative Agent and the Borrower that has agreed in its sole discretion to act as an “Issuing Bank” hereunder, or any of their respective affiliates, in each case in its capacity as issuer of any Letter of Credit. Each reference herein to “the Issuing Bank” shall be deemed to be a reference to the relevant Issuing Bank.
“ LC Disbursement ” means a payment made by the Issuing Bank pursuant to a Letter of Credit.
“ LC Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (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.
 
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“ Lender Parent ” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.
“ Lender Party ” means the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender.
“ 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, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender and the Issuing Bank.
“ Letter of Credit ” means any letter of credit issued pursuant to this Agreement.
“ LIBO Rate ” means, with respect to any Eurodollar Borrowing for any Interest Period, the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) providing rate quotations comparable to those currently provided on such page of such page, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 A.M., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the “ LIBO Rate ” with respect to such Eurodollar Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 A.M., London time, two Business Days prior to the commencement of such Interest Period.
“ 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, (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 and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“ Loan Documents ” means this Agreement (including schedules and exhibits hereto), the Notes, the Security Documents, the Fee Letter, any Guarantee Assumption Agreements, and all other documents, instruments, notes and other agreements executed in connection therewith or contemplated thereby, and all amendments, modifications or supplements thereto or waivers thereof.
“ Loan Parties ” means the Borrower and each Guarantor.
“ Loans ” means the loans made by the Lenders to the Borrower pursuant to this Agreement.
 
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“ Material Adverse Effect ” means a material adverse effect on (a) the business, assets, operations or financial or other condition of the Borrower and the Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under this Agreement or any other Loan Document or (c) the rights of or benefits available to the Administrative Agent or any Lender under this Agreement or any other Loan Document.
“ Material Indebtedness ” means Indebtedness (other than the Loans and Letters of Credit), or 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 $10,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary 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.
“ Moody’s ” means Moody’s Investors Service, Inc.
“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“ Net Cash Proceeds ” means:
(a) with respect to any Disposition by the Borrower or any of its Subsidiaries, or any Extraordinary Receipt received or paid to the account of the Borrower or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and Permitted Investments received in connection with such transaction (including any cash or Permitted Investments received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan Documents), (B) the reasonable and customary out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection with such transaction and (C) income taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction as a result of any gain recognized in connection therewith; provided that, if the amount of any estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall constitute Net Cash Proceeds; and
(b) with respect to the sale or issuance of any Equity Interest by the Borrower or any of its Subsidiaries, or the incurrence or issuance of any Indebtedness by the Borrower or any of its Subsidiaries, the excess of (i) the sum of the cash and Permitted Investments received in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses, incurred by the Borrower or such Subsidiary in connection therewith.
“ Note ” means a Tranche A Term Note or a Revolving Note, as the context may require.
“ Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in
 
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each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency or similar laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“ OFAC ” means Office of Foreign Assets Control of the United States Department of the Treasury.
“ 144A Securities ” means securities issued by the Borrower pursuant to Rule 144A under the Securities Act.
“ Other Connection Taxes ” means, with respect to any Recipient, 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 all present or future stamp, court or documentary, intangible, 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 that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).
“ Participant ” has the meaning assigned to such term in Section 10.04(c).
“ Participant Register ” has the meaning assigned to such term in Section 10.04(c).
“ Parties ” means the Borrower or any of its affiliates.
“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“ Permitted Encumbrances ” means:
(a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance with Section 5.04;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;
 
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(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“ Permitted Investments ” means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and
(e) money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.
“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
 
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“ 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 the Borrower 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.
“ Prime Rate ” means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank as its prime rate in effect at its office located at 383 Madison Avenue, New York, New York; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
“ Principal Payment Dates ” means (a) the Quarterly Dates falling on or nearest to March 31, June 30, September 30 and December 31 of each year, commencing with March 31, 2013, and (b) the Term Loan Maturity Date.
“ Prohibited Person ” means any Person (a) listed in the Annex to the Executive Order or identified pursuant to Section 1 of the Executive Order; (b) this is owned or controlled by, or acting for or on behalf of, any Person listed in the Annex to the Executive Order or identified pursuant to the provisions of Section 1 of the Executive Order; (c) with whom a Lender is prohibited from dealing or otherwise engaging in any transaction by any terrorism or anti-laundering law, including the Executive Order; (d) who commits, threatens, conspires to commit, or support “terrorism” as defined in the Executive Order; (e) who is named as a “Specially designated national or blocked person” on the most current list published by the OFAC at its official website, at http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf or any replacement website or other replacement official publication of such list; or (f) who is owned or controlled by a Person listed above in clause (c) or (e).
“ Public Market ” shall exist if (a) a Public Offering has been consummated and (b) any Equity Interests of the Borrower have been distributed by means of an effective registration statement under the Securities Act.
“ Public Offering ” means a public offering of the Equity Interests of the Borrower pursuant to an effective registration statement under the Securities Act.
“ Public-Sider ” means any representative of a Lender that does not want to receive material non-public information within the meaning of the federal and state securities laws.
“ Quarterly Dates ” means the last Business Day of March, June, September and December in each year, the first of which shall be the first such day after the date hereof.
“ Recipient ” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
“ Register ” has the meaning assigned to such term in Section 10.04.
“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
 
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“ Required Lenders ” means, at any time, Lenders having Revolving Credit Exposures, outstanding Term Loans and unused Commitments representing at least 50% of the sum of the total Revolving Credit Exposures, outstanding Term Loans and unused Commitments at such time; provided that for the purpose of determining the Required Lenders needed for any waiver, amendment, modification or consent, any Lender that is the Borrower, or any Affiliate of the Borrower shall be disregarded.
“ 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 Subsidiary, 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 such Equity Interests in the Borrower or any option, warrant or other right to acquire any such Equity Interests in the Borrower.
“ Revolving Commitment ” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. 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 applicable. The initial aggregate amount of the Lenders’ Revolving Commitments is $50,000,000.
“Revolving Commitment Termination Date” means December 21, 2016; provided , if such day is not a Business Day, then the Revolving Commitment Termination Date shall be the immediately preceding Business Day.
“ Revolving Credit Exposure ” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at such time.
“Revolving Facility Increase Effective Date” has the meaning assigned to it in Section 2.21(d).
“ Revolving Loan ” means a Loan made pursuant to Section 2.03.
“ Revolving Note ” means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Revolving Loans or Swingline Loans, as the case may be, made by such Revolving Lender, substantially in the form of Exhibit B-1.
“ S&P ” means Standard & Poor’s.
“ SEC ” means the Securities and Exchange Commission of the United States of America.
 
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“ Secured Cash Management Agreement ” means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank not for speculative purposes.
“ Secured Hedge Agreement ” means any Swap Contract permitted under Article VI that is entered into by and between the Borrower and any Hedge Bank not for speculative purposes.
“ Secured Parties ” means, collectively, the Administrative Agent, the Lenders, the Issuing Bank, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Article IX, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Security Documents.
“ Securities Act ” means the Securities Act of 1933, as amended.
“ Security Agreement ” means the Security Agreement dated as of the date hereof among the Borrower, the other Loan Parties party thereto and the Administrative Agent.
“ Security Documents ” means, collectively, the Security Agreement, the Account Control Agreements, the Collateral Access Agreements, the Patent Security Agreement, the Trademark Security Agreement, the Cayman Pledge, each of the mortgages (if any), collateral assignments, supplements, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 5.10, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
“ Solvent ” and “ Solvency ” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“ Statutory Reserve Rate ” means 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 percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentage shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
 
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constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable 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 of such date, 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) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“ Subsidiary ” means any subsidiary of the Borrower.
“ Swap Agreement ” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement 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 no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
“ Swingline Exposure ” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time.
“ Swingline Lender ” means JPMorgan Chase Bank, National Association, in its capacity as lender of Swingline Loans hereunder.
“ Swingline Loan ” means a Loan made pursuant to Section 2.05.
“ Taxes ” means 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.
“ Term ”, when used in reference to any Loan or Borrowing, refers to whether the Class of such Loan or Borrowing is Tranche A Term, as opposed to Revolving or Swingline.
“ Term Loan Maturity Date ” means December 21, 2015; provided , if such date is not a Business Day, then the Term Loan Maturity Date shall be the immediately preceding Business Day.
 
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“ Trading with the Enemy Act ” has the meaning assigned to it in Section 3.13.
“ Tranche A Term ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are made pursuant to Section 2.01(b).
“ Tranche A Term Loan Commitment ” means, with respect to each Lender, the commitment of such Lender to make one Tranche A Term Loan hereunder, expressed as an amount representing the principal amount of the Tranche A Term Loan to be made by such Lender hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The initial amount of each Lender’s Tranche A Term Loan Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Tranche A Term Loan Commitment, as applicable. The initial aggregate amount of the Lenders’ Tranche A Term Loan Commitments is $120,000,000.
“ Tranche A Term Loan Lender ” means a Lender with a Tranche A Term Loan Commitment or an outstanding Tranche A Term Loan.
“ Tranche A Term Note ” means a promissory note made by the Borrower in favor of a Tranche A Term Loan Lender evidencing Tranche A Term Loans made by such Tranche A Term Loan Lender, substantially in the form of Exhibit B-2.
“ Transactions ” means the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents to which it is party, the borrowing of Loans, the use of the proceeds thereof (including payment of the Dividend) and the issuance of Letters of Credit hereunder.
“ 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 LIBO Rate or the Alternate Base Rate.
“ UCC ” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“ United States ” and “ U.S. ” mean the United States of America.
“ U.S. Loan Party ” means any Loan Party that is organized under the laws of one of the states of the United States and that is not a CFC.
“ U.S. Person ” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
 
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“ U.S. Tax Compliance Certificate ” has the meaning assigned to such term in Section 2.17(h)(ii)(B)(3).
“ 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 may be classified and referred to by Class ( e.g ., a “ Revolving Loan ”) or by Type ( e.g ., a “ Eurodollar 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, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, 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, (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) 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 that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (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. 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 Board Accounting Standards Codification 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein.
 
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ARTICLE II
THE CREDITS
SECTION 2.01 Commitments .
(a) Subject to the terms and conditions set forth herein, each Revolving Lender agrees to make Revolving Loans to the Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in (i) such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment or (ii) the total Revolving Credit Exposures exceeding the total Revolving Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
(b) Subject to the terms and conditions set forth herein, each Tranche A Term Loan Lender agrees to make one Tranche A Term Loan to the Borrower on the Effective Date in a principal amount not exceeding its Tranche A Term Loan Commitment. Amounts prepaid or repaid in respect of Tranche A Term Loans may not be reborrowed.
SECTION 2.02 Loans and Borrowings .
(a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans made by the Revolving Lenders ratably in accordance with their respective Revolving Commitments. Each Tranche A Term Loan shall be made as part of a Borrowing consisting of Tranche A Term Loans made by the Tranche A Term Lenders ratably in accordance with their respective Tranche A Term Commitments. The failure of any Lender to make any 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 no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith, and (ii) each Term Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any Eurodollar 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 Revolving Borrowing or any Eurodollar Term Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $2,500,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused
 
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balance of the total Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e). Each Swingline Loan shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000. 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 five Eurodollar Revolving Borrowings outstanding or more than a total of five Eurodollar Term Borrowings.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Revolving Borrowing if the Interest Period requested with respect thereto would end after the Revolving Commitment Termination Date. Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Term Borrowing if the Interest Period requested with respect thereto would end after the Term Loan Maturity Date.
SECTION 2.03 Requests for Revolving Borrowings . To request a Revolving Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 A.M., New York City time, three Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 A.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 2.06(e) may be given not later than 10:00 A.M., New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested 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”; and
(v) the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Revolving 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 details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
 
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SECTION 2.04 Procedure for Term Borrowing . The Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent (a) in the case of a Eurodollar Borrowing, not later than 11:00 A.M., New York City time, three Business Days before the anticipated Effective Date or (b) in the case of an ABR Borrowing, not later than 11:00 A.M., New York City time, one Business Day before the anticipated Effective Date) requesting that the Tranche A Term Lenders make the Tranche A Term Loans on the Effective Date and specifying the information requested in clauses (i) through (v) of Section 2.03. If no election as to the Type of Term Borrowing is specified, then the requested Term Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Term Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. If the Borrower elects that the Tranche A Term Loans made on the Effective Date shall initially be Eurodollar Loans, then the Borrower shall execute and deliver a break-funding indemnity letter, in form and substance satisfactory to the Administrative Agent, together with such notice. Upon receipt of such notice the Administrative Agent shall promptly notify each Tranche A Term Lender thereof. Not later than 12:00 Noon, New York City time, on the Effective Date each Tranche A Term Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Tranche A Term Loan to be made by such Lender. The Administrative Agent shall credit the account of the Borrower on the books of such office of the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Tranche A Term Lenders in immediately available funds.
SECTION 2.05 Swingline Loans .
(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $5,000,000 or (ii) the total Revolving Credit Exposures exceeding the total Revolving Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 P.M., New York City time, on the requested date of such Swingline Loan.
 
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(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 A.M., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
SECTION 2.06 Letters of Credit .
(a) General . Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit as the applicant thereof for the support of its or its Subsidiaries’ obligations, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from time to time during the Availability Period. 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 Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of 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 hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the Issuing
 
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Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension, but in any event no less than three Business Days) a notice requesting the issuance of a Letter of Credit, 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 (c) 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. If requested by the Issuing Bank, the Borrower also shall submit a letter of credit application on the 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 each 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 LC Exposure shall not exceed $30,000,000 and (ii) the total Revolving Credit Exposures shall not exceed the total Revolving Commitments.
(c) Expiration Date . Each Letter of Credit shall expire (or be subject to termination by notice from the Issuing Bank to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five Business Days prior to the Revolving Commitment Termination Date.
(d) 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 or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such 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 Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement . If the 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 12:00 noon, New York City time, on the date that such LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 A.M., New York City time, on such date, or, if such notice has not been received by the Borrower prior to such time on such date, then not later than 12:00 noon, New York City time, on (i) the Business Day that the Borrower receives such notice, if such notice is received prior to 10:00 A.M., New York City time, on the
 
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day of receipt, or (ii) the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time on the day of receipt; provided that, if such LC Disbursement is not less than $2,500,000, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.05 that such payment be financed with an ABR Revolving Borrowing or Swingline Loan 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 or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each 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 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the 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 Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute . The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be 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 the 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. Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor 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 Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, 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 the Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a
 
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Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the 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.
(g) Disbursement Procedures . The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether the 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 the Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest . If the 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 (e) of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank . The Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
 
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(j) Cash Collateralization . If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing at least 50% of the total LC Exposure) 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 the LC Exposure 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 clause (h) or (i) of Article VII. 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. 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 and at the Borrower’s risk and expense, 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 Bank for LC Disbursements for which it has 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 Lenders with LC Exposure representing at least 50% of the total LC Exposure), 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, 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.
SECTION 2.07 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 by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in Section 2.05. 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 and 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 2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.
(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 upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of
 
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the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, 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 ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.
SECTION 2.08 Interest Elections .
(a) Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert a 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 (but subject to the limitations set forth in Sections 2.02, 2.03 and 2.04). 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. This Section shall not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section in respect of a Revolving Borrowing or a Term Borrowing, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(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 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 ”.
 
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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, the Administrative Agent shall advise each Lender 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 2.09 Termination and Reduction of Commitments .
(a) Unless previously terminated, (i) the Revolving Commitments shall terminate on the Revolving Commitment Termination Date and (ii) the Tranche A Term Loan Commitments shall terminate on the Effective 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 Revolving Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 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 2.11, the Revolving Credit Exposures would exceed the total 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 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 notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, 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) if such condition is not satisfied. Any termination or reduction of the Revolving Commitments shall be permanent. Each reduction of the Revolving Commitments shall be made ratably among the Revolving Lenders in accordance with their respective Revolving Commitments.
 
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SECTION 2.10 Repayment of Loans; Evidence of Debt .
(a) The Borrower hereby unconditionally promises to pay the Loans as follows:
(i) To the Administrative Agent for account of the Revolving Lenders, the aggregate outstanding principal amount of all Revolving Loans on the Revolving Commitment Termination Date; and in addition, if following any reduction in the Revolving Commitments the total Revolving Credit Exposures shall exceed the total Revolving Commitments, then the Borrower shall first, prepay Revolving Loans and second, provide cover for LC Exposure as specified in Section 2.06(j), in an aggregate amount equal to such excess.
(ii) To the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Commitment Termination Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made; provided that on each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans then outstanding.
(iii) To the Administrative Agent for account of the Tranche A Term Lenders, the outstanding principal amount of the Tranche A Term Loans on each Principal Payment Date set forth below in an amount equal to the percentage of the aggregate outstanding principal amount of Tranche A Term Loans on the Effective Date (immediately after the making of the Tranche A Term Loans on such date) set forth below opposite such Principal Payment Date:

Principal Payment Date / Quarterly Date Nearest:	  	Percentage:	 	
March 31, 2013	  	 	1.25	% 	
		
June 30, 2013	  	 	1.25	% 	
		
September 30, 2013	  	 	1.25	% 	
		
December 31, 2013	  	 	1.25	% 	
		
March 31, 2014	  	 	2.50	% 	
		
June 30, 2014	  	 	2.50	% 	
		
September 30, 2014	  	 	2.50	% 	
		
December 31, 2014	  	 	2.50	% 	
		
March 31, 2015	  	 	5.00	% 	
 
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Principal Payment Date / Quarterly Date Nearest:	  	Percentage:	
June 30, 2015	  	5.00%	
		
September 30, 2015	  	5.00%	
		
Term Loan Maturity Date	  	The then outstanding principal amount
of all Tranche A Term Loans	
(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 shall be prima facie evidence of the existence and amounts of the obligations recorded therein; 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 repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, 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 approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.11 Prepayment of Loans .
(a) Optional Prepayments . The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with paragraph (c) of this Section. Any prepayment of the Term Loans pursuant to this paragraph shall be applied to the installments thereof in the inverse order of maturity; provided , that so long as no Event of Default has occurred and is continuing, the Borrower may elect, at the Borrower’s option, to have such prepayment applied to the then next succeeding four consecutive installments of the Term Loans ratably.
 
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(b) Mandatory Prepayments .
(i) Equity Issuance . Upon any Equity Issuance, the Borrower shall prepay an aggregate principal amount of Loans (and/or provide cover for LC Exposure as specified in Section 2.06(j)) equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below)
(ii) Debt Incurrence . Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 6.01), the Borrower shall prepay an aggregate principal amount of Loans (and/or provide cover for LC Exposure as specified in Section 2.06(j)) equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below).
(iii) Dispositions . If the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 6.04) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans and/or provide cover for LC Exposure as specified in Section 2.06(j) equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (vi) below); provided , that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.11(b)(iii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets of the Borrower or such Subsidiary so long as within 365 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided , further , that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.11(b)(iii).
(iv) Extraordinary Receipts . Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries, and not otherwise included in clause (i), (ii) or (iii) of this Section 2.11(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below); provided , that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary may apply within ten (10) Business Days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; and provided , further , that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.11(b)(iv).
(v) Excess Cash Flow . If, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2013, there shall be Excess Cash Flow,
 
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then within ten (10) Business Days after the earlier of (1) the date the financial statements required to be delivered pursuant to Section 5.01(a) are actually delivered and (2) the date the financial statements required to be delivered pursuant to Section 5.01(a) are required to be delivered pursuant to Section 5.01(a), commencing with the fiscal year ending December 31, 2013, the Borrower shall prepay an aggregate principal amount of Loans equal to the excess (if any) of (A) 50% of Excess Cash Flow for the fiscal year covered by such financial statements over (B) the aggregate principal amount of Tranche A Term Loans prepaid pursuant to Section 2.11(a) (such prepayments to be applied as set forth in clause (vi) below); provided that this Section 2.11(b)(v) shall cease to apply at such time as all of the principal of and interest on all of the Tranche A Term Loans have been paid in full in cash pursuant to Section 2.10 or 2.11(a).
(vi) Application . Prepayments pursuant to this Section 2.11(b) (other than clause (vii) of this Section 2.11(b)) shall be applied as follows:
(1)  First , to prepay the Tranche A Term Loans, and
(2)  Second , after the payment in full in cash of all Tranche A Term Loans, ratably to the Swingline Loans and the unreimbursed LC Disbursements;
(3) Third , after the payment in full in cash of all Tranche A Term Loans, all Swingline Loans and all unreimbursed LC Disbursements, ratably to the outstanding Revolving Loans;
(4) Fourth , after the payment in full in cash of all Tranche A Term Loans, all Swingline Loans, all unreimbursed LC Disbursement and all outstanding Revolving Loans, to provide cover for LC Exposure as specified in Section 2.06(j); and
(5) Fifth , prepayments made pursuant to Section 2.11(b)(iii), after the payment in full in cash of all Tranche A Term Loans, all Swingline Loans, all unreimbursed LC Disbursements and all outstanding Revolving Loans, and after providing cover for LC Exposure as specified in Section 2.06(j), shall be applied to reduce the aggregate amount of the Revolving Commitments (and to the extent that, after giving effect to such reduction, the total Revolving Credit Exposure would exceed the Revolving Commitments, the Borrower shall first , prepay Swingline Loans and reimbursed LC Disbursement ratably, second , prepay Revolving Loan and third , provide cover for LC Exposure as specified in Section 2.06(j) in an aggregate amount equal to such excess).
Each such prepayment of the Tranche A Term Loans shall be applied to the installments thereof in the inverse order of maturity; provided , that so long as no Event of Default has occurred and is continuing, the Borrower may elect, at the Borrower’s option, to have such prepayment applied to the then next succeeding four consecutive installments of the Term Loans ratably.
(vii) If for any reason the aggregate Revolving Credit Exposures at any time exceed the aggregate Revolving Commitments at such time, the Borrower shall immediately prepay Revolving Loans and Swingline Loans and/or cash collateralize the LC Exposure in an aggregate amount equal to such excess.
 
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(c) Notices, etc . The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) 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, (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 or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the 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, if a notice of prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.09. Promptly following receipt of any such notice relating to a Revolving Borrowing or Term Borrowing, 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 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 (other than a Swingline Loan) shall be applied ratably to the Loans included in the prepaid Borrowing. The application of any prepayment pursuant to Section 2.11(b) shall be made, first , to ABR Borrowings and second , to Eurodollar Borrowings. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13.
SECTION   2.12 Fees .
(a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a facility fee, which shall accrue at the Applicable Rate on the daily amount of the Revolving Commitment of such Lender (whether used or unused) during the period from and including the date hereof to but excluding the date on which such Revolving Commitment terminates; provided that, if such Lender continues to have any Revolving Credit Exposure after its Revolving Commitment terminates, then such facility fee shall continue to accrue on the daily amount of such Lender’s Revolving Credit Exposure from and including the date on which its Revolving Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving Credit Exposure. Accrued facility fees shall be payable in arrears on 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; provided that any facility fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. All facility 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).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same 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 but excluding the later of the date on which such
 
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Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate of 0.25% per annum on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding 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 the 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 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 the 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 (including without limitation in the Fee Letter) between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for distribution, in the case of facility fees and participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.13 Interest .
(a) The Loans comprising each ABR Borrowing (including each Swingline Loan) 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 LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% 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% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(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
 
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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 at times when the Alternate Base Rate is based on the Prime 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, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.14 Alternate Rate of Interest . If 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 LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;
(c) then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy 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, such Borrowing shall be made as an ABR Borrowing; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15 Increased Costs .
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement (including any compulsory loan requirement, insurance charge, liquidity or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;
 
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(ii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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 increase the cost to such Lender or such other Recipient of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or liquidity or on the capital of such Lender’s or the 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 the Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or the 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 the Issuing Bank’s intention to claim
 
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compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.16 Break Funding Payments . In the event of (a) the payment of any principal of any Eurodollar Loan other than on 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 Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(c) and is revoked in accordance therewith), 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 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.17 Taxes .
(a) Defined Terms . For the purposes of this Section 2.17, the term “Lender” includes any Issuing bank and the term “applicable law” includes FATCA.
(b) Payments Free of Taxes . Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
 
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(c) Payment of Other Taxes by the Borrower . The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes.
(d) Evidence of Payments . As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17, such Loan Party 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) Indemnification by the Borrower . The Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified 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 (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(f) Indemnification by the Lenders . Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such 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 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 any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (f).
(g) Evidence of Payments . As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17, such Loan Party 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.
(h) Status of Lenders .
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the
 
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Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if 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 Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.17(h)(ii)(A), (ii)(B) and (ii)(D) 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, in the event that the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit C-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed originals of IRS Form W-8BEN; or
 
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(4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-2 or Exhibit C-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed 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; and
(D) if a payment made to a Lender 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 Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the 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 Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “ 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.
(i) Treatment of Certain Refunds . If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over
 
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pursuant to this paragraph (i) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (i), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (i) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(j) Survival . Each Party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(k) Issuing Bank . For purposes of this Section 2.17, the term “Lender” includes any Issuing Bank.
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs .
(a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due, in immediately available funds, without set off or counterclaim. 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 the Administrative Agent at its offices at 383 Madison Avenue, New York, New York, except payments to be made directly to the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall be made directly to the Persons entitled thereto. 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 hereunder 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, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars.
(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.
 
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(c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans 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, Term Loans and participations in LC Disbursements and Swingline Loans 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, Term Loans and participations in LC Disbursements and Swingline Loans; 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 any payment made by any Loan Party pursuant to and in accordance with the express terms of this Agreement or 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, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). Each Loan Party 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 such Loan Party rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party 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 Bank 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, distribute to the Lenders or the Issuing Bank, 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 the Issuing Bank, 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.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 10.03(c), then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clause (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
 
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SECTION 2.19 Mitigation Obligations; Replacement of Lenders .
(a) If any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Sections 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, or if any Lender becomes 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 10.04), all its interests, rights (other than its existing rights to payments pursuant to Sections 2.15 or 2.17) and obligations under this Agreement (other than any outstanding Competitive Loans held by it) to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent (and if a Revolving Commitment is being assigned, the Issuing Bank), which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued 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) and (iii) 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 2.17, such assignment will result in a 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, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.20 Defaulting Lenders . Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
 
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(b) the Revolving Commitment, Revolving Credit Exposure and outstanding Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided , that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue,
 
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amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein).
If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.
In the event that the Administrative Agent, the Borrower, the Swingline Lender and the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable Percentage.
SECTION 2.21 Increase in Revolving Facility.
(a) Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify the Revolving Lenders), the Borrower may from time to time, request an increase in the aggregate amount of Revolving Commitments by an amount (for all such requests) not exceeding $50,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $10,000,000, and (ii) the Borrower prepays the Tranche A Term Loans as set forth in Section 2.21(e)(i) below. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Revolving Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Revolving Lenders).
(b) Each Revolving Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Revolving Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Revolving Percentage of such requested increase. Any Revolving Lender not responding within such time period shall be deemed to have declined to increase its Revolving Commitment.
(c) The Administrative Agent shall notify the Borrower and each Revolving Lender of the Revolving Lenders’ responses to each request made hereunder. To achieve the full
 
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amount of a requested increase, and subject to the approval of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the Borrower may also invite additional financial institutions that are not Ineligible Institutions to become Revolving Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(d) If the Revolving Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “ Revolving Facility Increase Effective Date ”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Revolving Lenders of the final allocation of such increase and the Revolving Facility Increase Effective Date.
(e) As a condition precedent to such increase, the Borrower shall:
(i) prepay the Tranche A Term Loans in an aggregate amount such that, after giving effect to such prepayment and such increase, the sum of (A) the aggregate outstanding principal of the Tranche A Term Loans plus (B) the aggregate Revolving Commitments does not exceed $170,000,000; and
(ii) deliver to the Administrative Agent a certificate of each Loan Party dated as of the Revolving Facility Increase Effective Date (in sufficient copies for each Lender) signed by a Financial Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (B) in the case of the Borrower, certifying that, before and after giving effect to such increase, (1) the representations and warranties of the Loan Parties contained in Article III and the other Loan Documents are true and correct on and as of the Revolving Facility Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.21, the representations and warranties contained in subsections (a) and (b) of Section 3.04 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 5.01, and (2) no Default exists. The Borrower shall prepay any Revolving Loans outstanding on the Revolving Facility Increase Effective Date (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Applicable Revolving Percentages arising from any nonratable increase in the Revolving Commitments under this Section.
(f) This Section shall supersede any provisions in Section 2.18 or 10.02 to the contrary.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01 Organization; Powers . Each of the Borrower and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has all requisite power and authority to carry on its business as now conducted. Each of the Borrower and its Subsidiaries is duly qualified to do business as a foreign
 
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corporation or other organization and is in good standing in every jurisdiction where such qualification is required (except for the jurisdiction of its organization), except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.02 Authorization; Enforceability . The Transactions are within each Loan Party’s corporate (or equivalent) powers and have been duly authorized by all necessary corporate and, if required, stockholder action. Each Loan Document to which each Loan Party is a party has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03 Governmental Approvals; No Conflicts . The Transactions (a) 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, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or any of its Subsidiaries or any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries, and (d) except for the Liens created pursuant to the Security Documents, will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 3.04 Financial Condition; No Material Adverse Change .
(a) The audited consolidated balance sheets of the Borrower as at December 31, 2011, December 31, 2010 and December 31, 2009, and the related consolidated statements of operations, of stockholders’ equity and comprehensive income and of cash flows for the fiscal years ended on such dates, reported on by and accompanied by an unqualified report from (with respect to the fiscal years ended December 31, 2011 and December 31, 2010) PricewaterhouseCoopers LLP and (with respect to the fiscal year ended December 31, 2009) Mohler, Nixon & Williams, present fairly the consolidated financial condition of the Borrower at such dates, and the consolidated results of its operations, its consolidated stockholders’ equity and comprehensive income and its consolidated cash flows for the respective fiscal years then ended.
(b) The unaudited interim consolidated balance sheet of the Borrower as at September 30, 2012, and the related unaudited interim consolidated statements of operations and interim cash flows for the quarterly period ended on such date, present fairly the consolidated financial condition of the Borrower and its Subsidiaries as at such date, and the consolidated results of its operations and its consolidated cash flows for the period then ended (subject to normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the period involved (except as approved by the aforementioned firm of accountants
 
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and disclosed therein). As of the Effective Date, neither the Borrower nor any Subsidiary has any material Guarantees, contingent liabilities and liabilities for taxes, or any long term leases or unusual forward or long term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the most recent financial statements referred to in this paragraph. During the period from December 31, 2011 to and including the date hereof there has been no Disposition by the Borrower or any Subsidiary of any material part of its business or property.
(c) Since December 31, 2011, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
SECTION 3.05 Properties .
(a) Each of the Borrower and its Subsidiaries has good and marketable title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes. Neither the Borrower nor any of its Subsidiaries owns any real property exclusive of interests under real property leases.
(b) To the best knowledge of the Borrower, each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents, patent rights, franchises, licenses and other intellectual property that are necessary for or material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06 Litigation and Environmental Matters .
(a) 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 against or affecting the Borrower or any of its Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that purport to affect or pertain to any Loan Document or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (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 become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.
 
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SECTION 3.07 Compliance with Laws and Agreements . Each of the Borrower and its Subsidiaries is in compliance in all material respects with all laws, regulations and orders of any Governmental Authority applicable to it or its property. Each of the Borrower and its Subsidiaries is in compliance with all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by the Loan Documents.
SECTION 3.08 Investment Company Status . Neither the Borrower nor any of its Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.
SECTION 3.09 Taxes . Each of the Borrower and its Subsidiaries has timely filed or caused to be filed all United States federal income tax returns and all other material Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings diligently conducted and for which the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect. Neither the Borrower nor any Subsidiary is party to any tax sharing agreement.
SECTION 3.10 ERISA . (a) The Borrower and each Subsidiary, and each of their respective ERISA Affiliates, is in compliance in all material respects with the applicable provisions of ERISA and the provisions of the Code relating to Plans and the regulations and published interpretations thereunder; (b) no ERISA Event or Foreign Plan Event has occurred or is reasonably expected to occur; and (c) all amounts required by applicable law with respect to, or by the terms of, any retiree welfare benefit arrangement maintained by the Borrower or any Subsidiary or any ERISA Affiliate or to which the Borrower or any Subsidiary or any ERISA Affiliate has an obligation to contribute have been accrued in accordance with Statement of Financial Accounting Standards No. 106. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Accounting Standards Codification No. 715: Compensation-Retirement Benefits) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than an immaterial amount the fair market value of the assets of such Plan allocable to such accrued benefits, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Accounting Standards Codification No. 715: Compensation-Retirement Benefits) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than an immaterial amount the fair market value of the assets of all such underfunded Plans. There are no pending or, to the best knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
 
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SECTION 3.11 Disclosure . None of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the negotiation of the Loan Documents or delivered thereunder (as modified or supplemented by other information so furnished) 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 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 to be reasonable at the time.
SECTION 3.12 Foreign Assets Control Regulations, Etc.
(a) Neither Borrower nor any of its Subsidiaries or, to the knowledge of the Borrower, any of their respective Affiliates over which any of the foregoing exercises management control (each, a “ Controlled Affiliate ”) is a Prohibited Person, and the Borrower, its Subsidiaries and, to the knowledge of the Borrower, such Controlled Affiliates are in compliance with all applicable orders, rules and regulations of OFAC.
(b) Neither the Borrower nor any of its Subsidiaries or, to the knowledge of the Borrower, any of their respective Affiliates: (1) is targeted by United States or multilateral economic or trade sanctions currently in force; (2) is owned or controlled by, or acts on behalf of, any Person that is targeted by United States or multilateral economic or trade sanctions currently in force; (3) is a Prohibited Person; or (4) is named, identified or described on any list of Persons with whom United States Persons may not conduct business, including any such blocked persons list, designated nationals list, denied persons list, entity list, debarred party list, unverified list, sanctions list or other such lists published or maintained by the United States, including OFAC, the United States Department of Commerce or the United States Department of State. No part of the proceeds of the Loans or the Notes 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.
SECTION 3.13 Embargoed Person . (a) None of Borrower’s assets constitute property of, or are beneficially owned, directly or indirectly, by any Person targeted by economic or trade sanctions under U.S. law, including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq . (the “ Trading With the Enemy Act ”), any of the foreign assets control regulations of the Treasury (31 C.F.R., Subtitle B, Chapter V, as amended) (the “ Foreign Assets Control Regulations ”) or any enabling legislation or regulations promulgated thereunder or executive order relating thereto (which includes, without limitation, (i) Executive Order No. 13224, effective as of September 24, 2001, and relating to Blocking Property and Prohibiting Transaction With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the “ Executive Order ”) and (ii) the USA PATRIOT Act, if the result of
 
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such ownership would be that any Loan made by any Lender would be in violation of law (“ Embargoed Person ”); (b) no Embargoed Person has any interest of any nature whatsoever in the Borrower if the result of such interest would be that any Loan would be in violation of law; (c) the Borrower has not engaged in business with Embargoed Persons if the result of such business would be that any Loan made by any Lender would be in violation of law; and (d) neither the Borrower nor any Controlled Affiliate (i) is or will become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations or (ii) engages or will engage in any dealings or transactions, or be otherwise associated, with any such “blocked person”. For purposes of determining whether or not a representation is true or a covenant is being complied with under this Section 4.21, the Borrower shall not be required to make any investigation into (i) the ownership of publicly traded stock or other publicly traded securities or (ii) the beneficial ownership of any collective investment fund.
SECTION 3.14 Subsidiaries . Except as disclosed to the Administrative Agent by the Borrower in writing from time to time after the Effective Date, (a) Schedule 3.14 sets forth the name and jurisdiction of incorporation of each Subsidiary and, as to each such Subsidiary, the percentage of each class of Equity Interest owned by any Loan Party and (b) there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors’ qualifying shares) of any nature relating to any Equity Interest of the Borrower or any Subsidiary, except as created by the Security Documents. All of the outstanding Equity Interests in the Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by a Loan Party in the amounts specified on Schedule 3.14 free and clear of all Liens except those created under the Security Documents.
SECTION 3.15 Solvency . Each Loan Party is, and after giving effect to the Dividend and to incurrence of all Indebtedness and obligations being incurred in connection herewith, will be, individually and together with its Subsidiaries on a consolidated basis, Solvent.
SECTION 3.16 Casualty, Etc . Neither the businesses nor the properties of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 3.17 Labor Matters . There are no collective bargaining agreements or Multiemployer Plans covering the employees of the Borrower or any Subsidiary as of the Effective Date. Except as could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against the Borrower or any Subsidiary pending or, to the knowledge of the Borrower, threatened; (b) hours worked by and payment made to employees of the Borrower and each Subsidiary have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from the Borrower and each Subsidiary on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the Borrower or relevant Subsidiary.
 
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SECTION 3.18 Margin Regulations . The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U), or extending credit for the purpose of purchasing or carrying margin stock.
SECTION 3.19 Security Documents . The Security Agreement is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. In the case of the Pledged Stock described in the Security Agreement, when stock certificates representing such Pledged Stock are delivered to the Administrative Agent (together with a properly completed and signed stock power or endorsement), and in the case of the other Collateral described in the Security Agreement, when financing statements and other filings specified on Schedule 3.19 in appropriate form are filed in the offices specified on Schedule 3.19, the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each case prior and superior in right to any other Person (except, in the case of Collateral other than Pledged Stock, Liens permitted by Section 6.02).
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date . The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the first date on which all of the following conditions have been satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto 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 telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) Fenwick & West LLP, counsel for the Loan Parties, and (ii) Appleby (Cayman) Ltd., special Cayman Islands counsel to the Administrative Agent, each in form and substance satisfactory to the Administrative Agent. The Loan Parties hereby request such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
 
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(e) The Administrative Agent shall have received each other Loan Document, duly executed and delivered by each party thereto.
(f) The Administrative Agent shall have received the stock certificates identified in Schedule 3.5 to the Security Agreement, accompanied by undated stock powers executed in blank. In addition, the Loan Parties shall have taken such other actions (including the filing of appropriately completed UCC-1 financing statements, the Patent Security Agreement and the Trademark Security Agreement) as the Administrative Agent shall have requested in order to perfect the security interests created pursuant to the Security Documents.
(g) The Administrative Agent shall have received copies of the financial statements and related documents described in Section 3.04(a) and (b), in form and substance satisfactory to the Administrative Agent.
(h) The Administrative Agent shall have received a business plan for fiscal years 2012-2015 and a written analysis of the business and prospects of the Borrower and its Subsidiaries for the period from the Effective Date through the Term Loan Maturity Date, in each case in form and substance satisfactory to the Administrative Agent.
(i) The Administrative Agent shall have received certificates of insurance evidencing the existence of all insurance required to be maintained by the Borrower pursuant to Section 5.05 and the designation of the Administrative Agent as the loss payee or additional insured, as the case may be, thereunder, in form and substance satisfactory to the Administrative Agent.
(j) The Administrative Agent shall have received evidence that the Dividend has been approved by all necessary corporate and shareholder action, and that the Dividend shall have been (or shall be simultaneously) consummated in accordance therewith and all applicable law.
(k) The Administrative Agent shall have received evidence that the principal of and interest on, and all other amounts owing in respect of, the Existing Indebtedness shall have been (or shall be simultaneously) paid in full on the Effective Date, that any commitments to extend credit under the agreements or instruments relating to the Existing Indebtedness shall have been cancelled or terminated, that all letters of credit issued thereunder shall have been canceled or shall be Existing Letters of Credit, and that all Guarantees in respect of, and all Liens securing, any such Existing Indebtedness shall have been released.
(l) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(m) The Administrative Agent shall have received such other documents as the Administrative Agent or its counsel or the Required Lenders may request.
 
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The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.02) at or prior to 3:00 P.M., New York City time, on December 31, 2012 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02 Each Credit Event . The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except for purposes of this Section 4.02, after the Effective Date the representations and warranties contained in Sections 3.04(a) and 3.04(b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 5.01(a) and 5.01(b), respectively).
(b) 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 applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Loan Parties on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated or have been cash collateralized in accordance with this Agreement, in each case, without any pending draw, 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 and each Lender, including their Public-Siders:
(a) within (i) before the creation of a Public Market, one hundred (100) days after the end of each fiscal year of the Borrower and (ii) after the creation of a Public Market, ninety (90) days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other independent public
 
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accountants of recognized national standing (without a “going concern” or like qualification commentary) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, 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 one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default has occurred and is continuing, if a Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm that reported on such financial statements obtained knowledge during the course of their examination of such financial statements of any Default, the footnotes to such financial statements will mention such Default;
(e) as soon as available, and in any event no later than 45 days after the end of each fiscal year of the Borrower, a detailed quarterly consolidated budget for the following fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, the related consolidated statements of projected cash flow and projected income and a description of the underlying assumptions applicable thereto), and, as soon as available, significant revisions, if any, of such budget and projections with respect to such fiscal year (collectively, the “ Projections ”), which Projections shall in each case be accompanied by a certificate of a Financial Officer stating that such Projections are based on reasonable estimates, information and assumptions and that such Financial Officer has no reason to believe that such Projections are incorrect or misleading in any material respect;
(f) within 45 days after the end of each fiscal quarter of the Borrower, a narrative discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, as compared to the portion of the Projections covering such periods and to the comparable periods of the previous year;
 
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(g) within five days after the same are sent, copies of all financial statements and reports that the Borrower sends to the holders of any class of its debt securities or public equity securities;
(h) promptly after the same become publicly available, and in any event within five days after the same are filed, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02 Notices of Material Events . The Borrower will furnish to the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate thereof that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event or any Foreign ERISA Event;
(d) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect; and
(e) of the (i) occurrence of any sale of capital stock or other Equity Interests for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.11(b), (ii) incurrence or issuance of any Indebtedness for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.11(b), (iii) occurrence of any Disposition of property or assets for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.11(b), and (iv) receipt of any Extraordinary Receipt for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.11(b).
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive 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 Existence; Conduct of Business . The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.
 
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SECTION 5.04 Payment of Obligations . The Borrower will, and will cause each of its Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05 Maintenance of Properties; Insurance . The Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, and (b) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations, and providing for not less than 30 days’ prior notice to the Borrower or Administrative Agent of termination, lapse or cancellation of such insurance. Without prejudice to the foregoing, within one (1) Business Day of receiving any notice of termination, lapse or cancellation of such insurance, Borrower shall deliver to the Administrative Agent a copy of such notice.
SECTION 5.06 Books and Records; Inspection Rights . The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities. The Borrower will, and will cause each of its Subsidiaries 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, so long as no Event of Default has occurred, the Administrative Agent or Lender, as the case may be, provides at least twenty (20) days’ prior notice and submits such request no more than once every six months; provided, further , that the foregoing proviso shall not apply at any time after an Event of Default has occurred.
SECTION 5.07 Compliance with Laws . The Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08 Use of Proceeds and Letters of Credit . The proceeds of the Revolving Loans and the Swingline Loans shall be used only to finance the working capital needs and for general corporate purposes of the Borrower and its Subsidiaries, including the payment of fees and expenses in connection with the Loan Documents, in the ordinary course of business. Letters of Credit will be issued only to support general corporate purposes of the Borrower and its Subsidiaries in the ordinary course of business. The proceeds of the Term Loans shall be used only to finance the payment by the Borrower of the Dividend and to pay
 
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related fees and expenses. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.
SECTION 5.09 Accuracy of Information . The Borrower will ensure that any information, including financial statements or other documents, furnished to the Administrative Agent or the Lenders in connection with this Agreement or any amendment or modification hereof or waiver hereunder contains no 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 misleading, and the furnishing of such information shall be deemed to be representation and warranty by the Borrower on the date thereof as to the matters specified in this Section 5.09.
SECTION 5.10 Certain Obligations Regarding Subsidiaries .
(a) Guarantors . The Borrower will, and will cause each of its Subsidiaries to, take such action from time to time as shall be necessary to ensure that all Subsidiaries (other than Excluded Subsidiaries) of such Loan Party are “Guarantors” hereunder and the other Loan Documents. Without limiting the generality of the foregoing, in the event that the Borrower or any Subsidiary shall form or acquire any new Domestic Subsidiary that shall constitute a Subsidiary hereunder, such Loan Party will cause such new Domestic Subsidiary to, within 60 days (or such longer period as the Administrative Agent, in its sole discretion, may designate) after such formation or acquisition:
(i) become a “Guarantor” hereunder pursuant to a Guarantee Assumption Agreement, and execute joinders to the Security Agreement and other Security Documents thereby granting the Administrative Agent a first priority lien on all of such Guarantor’s assets (other than Equity Interests in any Excluded Subsidiary of such Guarantor, which shall be governed by Section 5.10(b)) as collateral security for the Obligations, in form and substance reasonably satisfactory to the Administrative Agent;
(ii) cause such new Domestic Subsidiary to take such action (including delivering such certificates evidencing such Equity Interests, executing and delivering such UCC financing statements and, if the fair market value of such real property is equal to or greater than $1,000,000, subject to the following proviso, executing and delivering mortgages or deeds of trust covering the real property and fixtures owned or leased by such Subsidiary) as shall be necessary to create and perfect valid and enforceable first-priority Liens on substantially all of the property of such new Subsidiary as collateral security for the obligations of such new Subsidiary under the Loan Documents; and
(iii) deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by each Loan Party pursuant to Section 4.01 on the Effective Date or as the Administrative Agent shall have reasonably requested, all in form and substance reasonably satisfactory to the Administrative Agent.
 
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(b) Excluded Subsidiaries . In the event that any Loan Party shall form or acquire any new Excluded Subsidiary, such Loan Party will, and will cause such new Excluded Subsidiary to, within 30 days (or such longer period as the Administrative Agent, in its sole discretion, may designate) after such formation or acquisition, (i) take such action as shall be necessary or, in the Administrative Agent’s discretion, advisable to create and perfect a valid and enforceable first-priority Lien in favor of the Administrative Agent on 65% of the Equity Interests of such new Excluded Subsidiary as collateral security for the Obligations and (ii) deliver such proof of corporate (or similar) action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by each Loan Party pursuant to Section 4.01 on the Effective Date or as the Administrative Agent shall have requested.
(c) Ownership of Subsidiaries . Each Loan Party will, and will cause each of its Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of its Subsidiaries is a wholly owned Subsidiary (except as otherwise expressly permitted in this Agreement). In the event that any additional Equity Interests shall be issued by any Subsidiary, subject to Section 5.10(b), the respective Loan Party agrees forthwith to deliver to the Administrative Agent pursuant to the applicable Loan Document the certificates evidencing such Equity Interests, accompanied by undated stock powers executed in blank and to take such other action as the Administrative Agent shall request to perfect the security interest created therein pursuant to the Security Agreement.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated or been cash collateralized as provided in this Agreement, in each case, without any pending draw, and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01 Indebtedness . The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof;
(c) Indebtedness of a Subsidiary of the Borrower owed to the Borrower or a wholly-owned Subsidiary of the Borrower, which Indebtedness shall (i) in the case of Indebtedness owed to a Loan Party, constitute “Pledged Debt” under the Security Agreement, (ii) be on terms (including subordination terms) acceptable to the Administrative Agent and (iii) be otherwise permitted under Section 6.05;
(d) Guarantees of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any other Guarantor;
 
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(e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (e) shall not exceed $15,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii) the aggregate principal amount of Indebtedness permitted by this clause (f) shall not exceed $5,000,000 at any time outstanding;
(g) Indebtedness of the Borrower or any Subsidiary as an account party in respect of trade letters of credit; and
(h) other unsecured Indebtedness in an aggregate principal amount not exceeding $25,000,000 at any time outstanding; provided that the aggregate principal amount of Indebtedness permitted under this Section 6.01(h) shall increase to $100,000,000 if (1) all of the principal of, and interest on, all of the Tranche A Term Loans have been paid in full in cash pursuant to Section 2.10 or 2.11(a), (2) both immediately prior and after giving effect to such unsecured Indebtedness, the Borrower is in compliance with Section 6.13 and (3) both immediately prior and after giving effect to such unsecured Indebtedness, no Default has occurred and is continuing or would result therefrom; provided , further , that the aggregate outstanding principal amount of Indebtedness of the Borrower’s Subsidiaries permitted by this clause (h) shall not exceed $12,500,000 at any time, which amount shall increase to $25,000,000 if (1) all of the principal of, and interest on, all of the Tranche A Term Loans have been paid in full in cash pursuant to Section 2.10 or 2.11(a), (2) both immediately prior and after giving effect to such Indebtedness, the Borrower is in compliance with Section 6.13 and (3) both immediately prior and after giving effect to such Indebtedness, no Default has occurred and is continuing or would result therefrom; and provided , further , that any unsecured Indebtedness that is permitted under this clause (h) shall mature at least six months after the Revolving Commitment Termination Date and shall not require mandatory prepayments nor permit the Borrower to make optional prepayments before the date that is six months after the Revolving Commitment Termination Date.
SECTION 6.02 Liens . The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
 
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(b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the date hereof and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Borrower or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be;
(d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by clause (e) of Section 6.01, (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Borrower or any Subsidiary;
(e) Liens created pursuant to the Security Documents;
(f) Liens consisting of customary and ordinary course rights of setoff against deposits of cash and Permitted Investments in favor of banks or other depositary institutions in the ordinary course of business; and
(g) Liens not otherwise permitted by this Section so long as the aggregate outstanding principal amount of the obligations secured thereby does not exceed (as to the Borrower and all Subsidiaries) $5,000,000 at any one time.
SECTION 6.03 Fundamental Changes . The Borrower will not, and will not permit any Subsidiary to, enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its property or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower ( provided that the Borrower shall be the continuing or surviving corporation) or with or into any wholly owned Loan Party ( provided that the wholly owned Loan Party shall be the continuing or surviving corporation);
(b) any Subsidiary of the Borrower may Dispose of any or all of its assets (i) to the Borrower or any wholly owned Loan Party (upon voluntary liquidation or otherwise) or (ii) pursuant to a Disposition permitted by Section 6.04; and
(c) any Investment expressly permitted by Section 6.05 may be structured as a merger, consolidation or amalgamation.
 
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In addition, the Borrower will not, and will not permit any of its Subsidiaries to, engage in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Effective Date and businesses which the board of directors of the Borrower shall reasonably determine to be reasonably related or incidental to the businesses conducted by the Borrower and its Subsidiaries on the Effective Date.
SECTION 6.04 Dispositions . The Borrower will not, and will not permit any Subsidiary to, Dispose of any of its property, whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Equity Interests to any Person, except:
(a) Dispositions of cash that are in the ordinary course of business and not otherwise prohibited by this Agreement;
(b) Dispositions of accounts receivable in factoring transactions in a cumulative aggregate amount not to exceed $5,000,000;
(c) Dispositions of accounts receivable of non-U.S. Subsidiaries pursuant to ordinary course factoring arrangements to the extent that (i) the Borrower or any Subsidiary receives letter-of-credit rights as consideration and in exchange for such Dispositions and (ii) such Dispositions are consummated by such non-U.S. Subsidiary in the ordinary course of business and consistent with past practice;
(d) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(e) Dispositions of inventory in the ordinary course of business;
(f) Dispositions of equipment or real 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 reasonably promptly applied to the purchase price of such replacement property;
(g) Dispositions of property by any Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided that if the transferor of such property is a Guarantor, the transferee thereof must either be the Borrower or a Guarantor;
(h) Dispositions permitted by Section 6.03;
(i) non-exclusive licenses of intellectual property rights in the ordinary course of business; and
(j) Dispositions of intellectual property rights in connection with intellectual property that is not material to or necessary for the operation of the Borrower’s business.
 
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SECTION 6.05 Investments, Loans, Advances, Guarantees and Acquisitions . The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (all of the foregoing, “ Investments ”), except:
(a) Permitted Investments;
(b) (i) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13 , additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(c) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
SECTION 6.06 Swap Agreements . The Borrower will not, and will not permit any of its Subsidiaries to, enter into any Swap Agreement, except Swap Agreements that are (a) entered into to hedge or mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b) not entered into for any speculative purpose.
SECTION 6.07 Restricted Payments . The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock;
(b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests to the Borrower or to any other Loan Party;
 
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(c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans for management or employees of the Borrower and its Subsidiaries;
(d) the Borrower may pay the Dividend on the Effective Date; and
(e) so long as (i) no Default has occurred and is continuing or would result therefrom, and (ii) the principal of and the interest on all of the Tranche A Terms Loans have been paid in full in cash pursuant to Section 2.10 or 2.11(a), the Borrower may make Restricted Payments in an aggregate cumulative amount which does not exceed $50,000,000; and
(f) to the extent the Investments permitted under Section 6.05(e) are Restricted Payments, the Borrower may make such Restricted Payments to the extent permitted under Section 6.05(e);
provided that (1) Revolving Borrowings may never be used to make any Restricted Payments, permitted under clauses (a) through (e) of this Section 6.07, and (2) unsecured debt permitted under Section 6.01(h) may be used to make the Restricted Payments permitted under Section 6.07(e).
SECTION 6.08 Transactions with Affiliates . The Borrower will not, and will not 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 (a) in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among the Borrower and its wholly owned Subsidiaries not involving any other Affiliate and (c) any Restricted Payment permitted by Section 6.07.
SECTION 6.09 Restrictive Agreements . The Borrower will not, and will not 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 or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law or by the Loan Documents, (ii) the foregoing shall not apply to restrictions and conditions existing on the date hereof identified on Schedule 6.09 (but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness and (v) clause (a) of the foregoing shall not apply to customary provisions in leases restricting the assignment thereof.
 
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SECTION 6.10 Changes in Fiscal Periods . The Borrower will not, and will not permit any of its Subsidiaries to, make any change in (a) accounting policies or reporting practices, except (i) as required by GAAP or (ii) solely with respect to non-U.S. Subsidiaries, as required by applicable local law, or (b) fiscal year; provided , that all times the consolidated financial statements of the Borrower and its Subsidiaries will be prepared in accordance with GAAP.
SECTION 6.11 Amendments to Organizational Documents . The Borrower will not, and will not permit any of its Subsidiaries to, amend, modify or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, the charter, articles of incorporation, memorandum of association, articles of association, partnership agreement, by-laws or other organizational documents of the Loan Parties to the extent such amendment, modification, waiver or other change would reasonably be expected to impair the ability of the Loan Parties to perform their obligations under the Loan Documents.
SECTION 6.12 Optional Payments and Modifications of Certain Debt Instruments . The Borrower will not, and will not permit any of its Subsidiaries to, (a) make or offer to make any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease or segregate funds with respect to Material Indebtedness; (b) amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of Material Indebtedness (other than any such amendment, modification, waiver or other change that (i) would extend the maturity or reduce the amount of any payment of principal thereof or reduce the rate or extend any date for payment of interest thereon and (ii) does not involve the payment of a consent fee); (c) amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of any preferred stock (other than any such amendment, modification, waiver or other change that (i) would extend the scheduled redemption date or reduce the amount of any scheduled redemption payment or reduce the rate or extend any date for payment of dividends thereon and (ii) does not involve the payment of a consent fee); or (d) amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any financial or negative covenants, or defaults or events of default, in any Material Indebtedness that are more restrictive (in respect of any Loan Party) than those set forth in the Loan Documents (and without prejudice to the foregoing, the Borrower will, and will cause its Subsidiaries to, execute and deliver such amendments (in form and substance reasonably satisfactory to the Required Lenders) to the Loan Documents that the Administrative Agent or Required Lenders may require to incorporate such more restrictive (in respect of any Loan Party) provisions into the Loan Documents.
 
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SECTION 6.13 Certain Financial Covenants .
(a) Consolidated Leverage Ratio . The Borrower will not permit the Consolidated Leverage Ratio at any time during any of the following periods set forth below to exceed the ratio set forth below opposite such period:

Period:	  	Consolidated Leverage
Ratio	
		
Effective Date through June 30, 2013	  	3.00	
		
July 1, 2013 through September 30, 2013	  	2.75	
		
October 1, 2013 through December 31, 2013	  	2.50	
		
January 1, 2014 through December 31, 2014	  	2.00	
		
January 1, 2015 and December 31, 2015 and thereafter	  	1.50	
Consolidated Interest Coverage Ratio . The Borrower will not permit the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than 5.00 to 1.00.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events shall occur:
(a) the Borrower or any other 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) the Borrower or any other 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 clause (a) of this Article) 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 one Business Day;
(c) any representation or warranty made or deemed made by or on behalf of any Loan Party or any Subsidiary in or in connection with this any Loan Document or any amendment or modification hereof or waiver hereunder, 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 hereof or waiver hereunder, shall prove to have been incorrect in any material respect when made or deemed made;
(d) (i) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01, 5.02, 5.03 (with respect to the Borrower’s existence), 5.08 or 5.10 or in Article VI; or (ii) any Guarantor fails to perform or observe any term, covenant or agreement contained in Article VIII; or (iii) any Loan Party fails to perform or observe any term, covenant or agreement contained in Section 3.3, 3.4, 3.6, 3.7, 3.8, 3.13 or 3.16, or in Article 2, 4 or 6, of the Security Agreement;
 
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(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after written notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
(f) any Loan Party or any Subsidiary 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;
(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 or without the giving of notice, the lapse of time or both) 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 clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Loan Party or any Subsidiary or its debts, or of a substantial 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, sequestrator, conservator or similar official for any Loan Party or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) any Loan Party or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, 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 clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or any Subsidiary or for a substantial part of its 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 or (vi) take any action for the purpose of effecting any of the foregoing;
(j) any Loan Party or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $5,000,000 shall be rendered against any Loan Party, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 10 consecutive Business Days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Loan Party or any Subsidiary to enforce any such judgment;
 
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(l) an ERISA Event or a Foreign ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events and/or Foreign ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or
(o) any Security Document after delivery thereof pursuant to this Agreement shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first-priority Lien (subject to Liens permitted by Section 6.02) on the Collateral purported to be covered thereby (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to its representing securities pledged under the Security Documents);
then, and in every such event (other than an event with respect to the Borrower described in clause (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 either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (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 each Loan Party; and in case of any event with respect to the Borrower described in clause (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, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Loan Party.
In addition to any other rights and remedies granted to them in the Loan Documents, the Administrative Agent on behalf of the Lenders may exercise all rights and remedies of a secured party under the UCC or any other applicable law. Without limiting the generality of the foregoing, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Loan Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or
 
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consent to the use by the Loan Party or any cash collateral arising in respect of the Collateral on such terms as the Administrative Agent deems reasonable, and/or may forthwith sell, lease, assign give option or options to purchase or otherwise dispose of and deliver, or acquire by credit bid on behalf of the Lenders, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Administrative Agent or any Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor (hereinafter, as such term is defined in the Security Agreement), which right or equity is hereby waived and released. Each Grantor further agrees, at the Administrative Agent’s request, to assemble the Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Article VII, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Administrative Agent and the Lenders hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the obligations of the Loan Parties under the Loan Documents, in such order as the Administrative Agent may elect, and only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the UCC, need the Administrative Agent account for the surplus, if any, to any Loan Party. To the extent permitted by applicable law, each Loan Party waives all claims, damages and demands it may acquire against the Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.
ARTICLE VIII
GUARANTEE
SECTION 8.01 Guaranty . The Guarantors hereby absolutely and unconditionally guarantee, jointly and severally, as a guaranty of payment and performance and not merely as a guaranty of collection, to the Secured Parties the prompt payment in full when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all of the Obligations, whether for principal, interest, premiums, fees, indemnities, damages, costs, expenses or otherwise, and whether arising hereunder or under any other Loan Document, any Secured Cash Management Agreement or any Secured Hedge Agreement (including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and expenses incurred by the Secured Parties in connection with the collection or enforcement thereof). The Guarantors hereby further jointly and severally agree if the Borrower or any Guarantor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Obligations, the Guarantors will promptly pay the same, without any demand or notice whatsoever, and that in the case of any
 
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extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension of renewal. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing the amount of the Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or any instrument or agreement evidencing any Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Obligations which might otherwise constitute a defense to the obligations of any Guarantor under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.
SECTION 8.02 Rights of Lenders . Each Guarantor consents and agrees that the Secured Parties may, at any time and from time to time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guarantee or any Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative Agent, the Issuing Bank and the Lenders in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Obligations. Without limiting the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of such Guarantor under this Guarantee or which, but for this provision, might operate as a discharge of such Guarantor.
SECTION 8.03 Certain Waivers . Each Guarantor waives (a) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower or any other guarantor; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower or any other guarantor; (c) the benefit of any statute of limitations affecting any Guarantor’s liability hereunder; (d) any right to proceed against the Borrower or any other guarantor, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of any Secured Party whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by any Secured Party; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations.
SECTION 8.04 Obligations Independent . The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the
 
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Obligations and the obligations of any other guarantor, and a separate action may be brought against such Guarantor to enforce this Guaranty whether or not the Borrower or any other person or entity is joined as a party. Each Guarantor hereby acknowledges that this Guaranty constitutes an instrument for the payment of money, and consents and agrees that the Administrative Agent, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to bring motion-action under New York CPLR Section 3213.
SECTION 8.05 Subrogation . No Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Obligations and any amounts payable under this Guaranty have been indefeasibly paid in cash and performed in full and the Commitments are terminated. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to reduce the amount of the Obligations, whether matured or unmatured.
SECTION 8.06 Termination; Reinstatement . This Guaranty is a continuing and irrevocable guaranty of all Obligations now or hereafter existing and shall remain in full force and effect until all Obligations and any other amounts payable under this Guaranty are indefeasibly paid in full in cash and the Commitments are terminated. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Borrower or any Guarantor is made, or any of the Secured Parties exercises its right of setoff, in respect of the Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any bankruptcy or insolvency laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Secured Parties are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of each Guarantor under this paragraph shall survive termination of this Guaranty.
SECTION 8.07 Subordination . Each Guarantor hereby subordinates the payment of all obligations and indebtedness of the Borrower or any Subsidiary owing to such Guarantor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower to such Guarantor as subrogee of the Secured Parties or resulting from such Guarantor’s performance under this Guaranty, to the indefeasible payment in full in cash of all Obligations. If the Secured Parties so request, any such obligation or indebtedness of the Borrower to such Guarantor shall be enforced and performance received by such Guarantor as trustee for the Secured Parties and the proceeds thereof shall be paid over to the Secured Parties on account of the Obligations, but without reducing or affecting in any manner the liability of such Guarantor or any other guarantor under this Guaranty.
SECTION 8.08 Stay of Acceleration . If acceleration of the time for payment of any of the Obligations is stayed, in connection with any case commenced by or against any Guarantor or the Borrower under any bankruptcy or insolvency laws or otherwise, or otherwise, all such amounts shall nonetheless be payable by such Guarantor immediately upon demand by the Secured Parties. Without limiting the foregoing, the Guarantors jointly and severally agree
 
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that, as between the Guarantors and the Lenders, the obligations of the Borrower under this Agreement may be declared to be forthwith due and payable as provided in Article VII (and shall be deemed to have become automatically due and payable in the circumstances provided in Article VII) for purposes of Section 8.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Guarantors for purposes of Section 8.01.
SECTION 8.09 Condition of Borrower . Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower and any other guarantor such information concerning the financial condition, business and operations of the Borrower and any such other guarantor as such Guarantor requires, and that none of the Secured Parties has any duty, and such Guarantor is not relying on the Secured Parties at any time, to disclose to such Guarantor any information relating to the business, operations or financial condition of the Borrower or any other guarantor (such Guarantor waiving any duty on the part of the Secured Parties to disclose such information and any defense relating to the failure to provide the same).
SECTION 8.10 General Limitation on Guarantee Obligations In any action or proceeding involving any state corporate law, or any state or Federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Guarantor under Section 8.01 would otherwise be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 8.01, then, notwithstanding any other provision hereof to the contrary, the amount of such liability shall, without any further action by such Guarantor, any Lender, the Administrative Agent or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent 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, together with such actions and powers as are reasonably incidental thereto.
The bank 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 such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
 
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The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth herein, the Administrative Agent shall not 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 Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therewith, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any agreement, instrument or document, or (v) 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.
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 believed by it to be genuine and to have been signed or sent 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 be made by the proper Person, and shall not incur any liability for relying thereon. 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.
The Administrative Agent may perform any and all its duties and exercise its rights and powers 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 its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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.
 
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Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no 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 Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. 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 Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 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 it was acting as Administrative Agent.
Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) 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 related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder.
The Lenders and Issuing Bank irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon termination of all the commitments and payment in full in cash of all Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the Issuing Bank shall have been made), (ii) that is Disposed of or to be Disposed of as part of or in connection with any Disposition permitted hereunder or under any other Loan Document, or (iii) if approved or authorized in writing in accordance with Section 10.02. upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release its interest in particular types of items of property pursuant to this paragraph.
 
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Anything herein to the contrary notwithstanding, none of the Joint Bookrunners, Arranger, documentation Agent or Co-Syndication Agents listed on the cover page hereof shall have any powers, duties or responsibilities under any Loan Document, except in its capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Bank.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Notices .
(a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), 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 telecopy, as follows:
(i) if to any Loan Party, to it at c/o Woodman Labs, Inc., d/b/a GoPro, 3000 Clear view Way, Building E, San Mateo, CA 94402, Attention of Chief Financial Officer (Telecopy No. (480) 275-3094);
(ii) if to the Administrative Agent, Issuing Bank or Swingline Lender: JPMorgan Chase Bank, Loan and Agency Services Group, 500 Stanton Christiana Road, Ops 2, Newark, Delaware 19713, Attention of Brian Longer (Telecopy No. (302) 634-3301), with a copy to JPMorgan Chase Bank, 383 Madison Avenue, 24th Floor, New York, New York 10179, Attention of Tony Yung (Telecopy No. (212) 270-6637); and
(iii) if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02 Waivers; Amendments .
(a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder 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
 
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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 Bank and the Lenders hereunder 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 consent to any departure by the Borrower 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 issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan document, nor any provision hereof or thereof, may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower (or the applicable Loan Party, as the case may be) and the Required Lenders or by the Borrower (or the applicable Loan Party, as the case may be) and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase any Commitment of any Lender without the written consent of such 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 affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any 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 affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, or (v) change any of the provisions of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; (vi) release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender, or (vii) except to the extent a Disposition is permitted under Section 6.04, release all or substantially of the value of the Guarantee set forth in Article VIII, without the written consent of the lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be; and provided , further , that no such agreement shall waive, amend or modify Section 2.20 without the consent of the Administrative Agent, the Swingline Lender and the Issuing Bank in addition to the consent of the Required Lenders; and provided , further , that the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding any provision of this Agreement to the contrary, a Defaulting Lender’s vote shall not be included except (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans or LC Disbursements may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent.
 
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SECTION 10.03 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out of pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement, the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the 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 out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, the Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in connection with this Loan Documents, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender, 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 related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated hereby, (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), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory 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 or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. This Section 10.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lender’s Applicable Percentage (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, the Issuing Bank or the Swingline Lender in its capacity as such.
 
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(d) To the extent permitted by applicable law, the no party hereto shall assert, and each such party hereby waives, any claim against any other party, 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 or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this clause (d) shall relieve the Borrower of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.
(e) All amounts due under this Section shall be payable not later than one Business Day after written demand therefor.
SECTION 10.04 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) and (ii) 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) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the 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 paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible Institution) 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) of:
(A) the Borrower, provided that, the Borrower shall be deemed to have consented to an assignment unless it shall have objected thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; provided further that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of (x) any Revolving Commitment to an assignee that is a Lender with a Revolving Commitment immediately prior to giving effect to such assignment or that is an Affiliate of such Lender and (y) all or any portion of a Tranche A Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
 
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(C) the Issuing Bank, provided that no consent of the Issuing Bank shall be required for an assignment of all or any portion of a Tranche A Term Loan.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender 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 date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 or, in the case of a Tranche A Term Loan, $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, 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 shall not be construed to prohibit the 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 with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent 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 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.
For the purposes of this Section 10.04(b), the term “ Approved Fund ” and “ Ineligible Institution ” have the following meanings:
“ Approved Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business 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.
“ Ineligible Institution ” means a (a) natural person or (b) company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof; provided that, such company, investment vehicle or trust shall not constitute an Ineligible
 
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Institution if it (x) has not been established for the primary purpose of acquiring any Loans or Commitments, (y) is managed by a professional advisor, who is not such natural person or a relative thereof, having significant experience in the business of making or purchasing commercial loans, and (z) has assets greater than $25,000,000 and a significant part of its activities consist of making or purchasing commercial loans and similar extensions of credit in the ordinary course of its business.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) 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 Sections 2.15, 2.16, 2.17 and 10.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), shall maintain at one of its offices 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 amount (and stated interest) of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
(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 (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 10.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) Any Lender may, without the consent of the Borrower, the Administrative Agent, the Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a “ Participant ”), other than an Ineligible Institution, in all or a portion of such
 
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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 Bank 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 to approve any amendment, modification or waiver of any provision of this Agreement; 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 10.02(b) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.17(f) (it being understood that the documentation required under Section 2.17(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.17, with respect to any participation, than its participating Lender would have been entitled to receive, 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. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.19(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.18(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit 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 such Lender 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. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) Any Lender may 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 without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over the Lender, and this Section shall not apply to any
 
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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.
SECTION 10.05 Survival . All covenants, agreements, representations and warranties made by each Loan Party herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and other 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, the 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 the Loan Documents 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 2.15, 2.16, 2.17 and 10.03 and Article IX 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 and the other Loan Documents or any provision hereof or thereof.
SECTION 10.06 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 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 which, 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 telecopy, emailed pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 10.07 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.
SECTION 10.08 Right of Setoff . If an Event of Default shall have occurred and be continuing, each Lender and each of its 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) at any time held and other obligations at any
 
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time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under this Agreement and the other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or the other Loan Documents and although such obligations may be unmatured. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
SECTION 10.09 Governing Law; Jurisdiction; Consent to Service of Process . This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(a) Each Loan Party 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, Borough of Manhattan, and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other 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, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to any Loan Document against any Loan Party or its properties in the courts of any jurisdiction.
(b) Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which 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.
(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 10.01. Nothing in any Loan Document will affect the right of any party to any Loan Document to serve process in any other manner permitted by law.
SECTION 10.10 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 HEREBY OR 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
 
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BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11 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 10.12 Confidentiality . Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (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), (b) to the extent requested by any regulatory authority, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to any Loan Document, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to any Loan Document or the enforcement of rights thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under the Loan Documents or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis from a source other than a Loan Party. For the purposes of this Section, “ Information ” means all information received from a Loan Party relating to a Loan Party or its subsidiaries or their respective businesses, other than any such information that is available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis prior to disclosure by a Loan Party; provided that, in the case of information received from a Loan Party after the date hereof, such information is clearly identified at the time of delivery as 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.
SECTION 10.13 Material Non-Public Information .
(a) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 10.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS 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.
 
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(b) 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.
SECTION 10.14 Authorization to Distribute Certain Materials to Public-Siders .
(a) Prior to the creation of a Public Market:
(i) None of the Parties currently has any publicly traded securities outstanding (including, but not limited to, 144A Securities, commercial paper notes or American Depositary Receipts); provided that the Borrower agrees that if any of the Parties issues any publicly traded securities at a future date, any of the information in the Loan Documents and the Financial Statements to be furnished pursuant to Section 5.01(a) and (b), to the extent then material , will be publicly disclosed or set forth in the related prospectus or other offering document for such issuance.
(ii) The Borrower hereby authorizes the Administrative Agent to distribute the execution versions of the Loan Documents and Financial Statements to all Lenders, including their Public-Siders who indicate that they would not wish to receive information that would be deemed to be material non-public information within the meaning of the United States federal and state securities laws if the Parties had publicly-traded securities outstanding.
(iii) If the Borrower issues any 144A Securities during the term of this Agreement and its Financial Statements are not filed with the SEC, the Borrower (A) agrees to deliver to the Administrative Agent, and authorizes their posting by the Administrative Agent to the public-side view site of the Agency Site, the Financial Statements and Supplemental Materials and (B) represents, warrants and agrees that the Financial Statements and Supplemental Materials will not constitute information that, upon disclosure to Public-Siders, would restrict them or their firms from purchasing or selling any of the 144A Securities under United States federal and state securities laws. The Borrower further agrees to clearly label such Financial Statements and/or Supplemental Materials with a notice stating: “ Confidential Financial Statements provided to 144A Holders ” or “ Confidential Supplemental Materials ,” as the case may, before delivering them to the Administrative Agent.
(iv) The Borrower acknowledges its understanding that Public-Siders and their firms may be trading in any of the Parties’ respective securities while in possession of the materials, documents and information distributed to them pursuant to the authorizations made herein.
 
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(b) After the creation of a Public Market:
(i) If the Borrower does not file this Agreement with the SEC, then the Borrower hereby authorizes the Administrative Agent to distribute the execution version of this Agreement and the Loan Documents to all Lenders, including their Public-Siders. The Borrower acknowledges its understanding that Public-Siders and their firms may be trading in any of the Parties’ respective securities while in possession of the Loan Documents.
(ii) The Borrower represents and warrants that none of the information in the Loan Documents constitutes or contains material non-public information within the meaning of the federal and state securities laws. To the extent that any of the executed Loan Documents constitutes at any time a material non-public information within the meaning of the federal and state securities laws after the date hereof, the Company agrees that it will promptly make such information publicly available by press release or public filing with the SEC.
SECTION 10.15 Interest Rate Limitation . Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “ Charges ”), shall exceed the maximum lawful rate (the “ Maximum Rate ”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 10.16 USA PATRIOT Act . Each Lender that is subject to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”) hereby notifies each Loan Party that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies such Loan Party, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Loan Party in accordance with the Act. The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
 
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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.

BORROWER :	
	
WOODMAN LABS, INC., D/B/A GORRO	
		
By:	 	/s/ Nicholas Woodman	
	 	Name:	 	Nicholas Woodman	
	 	Title:	 	CEO	
	
GUARANTOR :	
	
CINEFORM INC.	
		
By:	 	/s/ Nicholas Woodman	
	 	Name:	 	Nicholas Woodman	
	 	Title:	 	CEO	
 
[Signature Page to Credit Agreement]

					
JPMORGAN CHASE BANK, N.A.,	
individually and as Administrative Agent	
		
By:	 	/s/ Tony Yung	
	 	Name:	 	Tony Yung	
	 	Title:	 	Executive Director	
 
[Signature Page to Credit Agreement]

					
BARCLAYS BANK PLC	
		
By:	 	/s/ Vanessa A. Kurbatskiy	
	 	Name:	 	Vanessa A. Kurbatskiy	
	 	Title:	 	Vice President	
 
[Signature Page to Credit Agreement]

					
CITIBANK, N.A.	
		
By:	 	/s/ Avrum Spiegel	
	 	Name:	 	Avrum Spiegel	
	 	Title:	 	Managing Director	
 
[Signature Page to Credit Agreement]

					
SILICON VALLEY BANK	
		
By:	 	/s/ Christopher L. Snider	
	 	Name:	 	Christopher L. Snider	
	 	Title:	 	Managing Director	
	 		 	Silicon Valley Bank	
	 		 	(415) 764-3145	
 
[Signature Page to Credit Agreement]

					
U.S. BANK	
		
By:	 	/s/ Matthew Murray	
	 	Name:	 	Matthew Murray	
	 	Title:	 	Vice President	
 
[Signature Page to Credit Agreement]

SCHEDULE 2.01
LENDERS AND COMMITMENTS

Lender	  	Revolving
Commitment	 	  	Tranche A Term
Commitment	 	  	Total Allocation	 	
JPMorgan Chase Bank, N.A.	  	$	11,029,411.76	  	  	$	26,470,588.24	  	  	$	37,500,000.00	  	
Citibank, N.A.	  	$	11,029,411.76	  	  	$	26,470,588.24	  	  	$	37,500,000.00	  	
Barclays Bank PLC	  	$	11,029,411.76	  	  	$	26,470,588.24	  	  	$	37,500,000.00	  	
Silicon Valley Bank	  	$	11,029,411.76	  	  	$	26,470,588.24	  	  	$	37,500,000.00	  	
U.S. Bank National Association	  	$	5,882,352.94	  	  	$	14,117,647.06	  	  	$	20,000,000.00	  	
	  	 	 	 	  	 	 	 	  	 	 	 	
TOTAL	  	$	50,000,000.00	  	  	$	120,000,000.00	  	  	$	170,000,000.00	  	

Schedule
To Credit Agreement
This Schedule (this “Schedule”) is made and delivered pursuant to that certain Credit Agreement dated December 21, 2012 (the “ Agreement ”) by and among Woodman Labs, Inc. (the “ Company ”), JPMorgan Chase Bank, National Association, as Administrative Agent (as defined in the Agreement), and the “Lenders” and “Guarantors” party thereto. All capitalized terms used but not defined herein shall have the meanings as defined in the Agreement, unless otherwise provided herein. The section numbers below correspond to the section numbers of Section 3 of the Agreement; provided , however , that any information disclosed herein under any section number shall be deemed to be disclosed and incorporated into any other section number under the Agreement where the applicability of such disclosure would be reasonably apparent to a reader familiar with the Company.
Nothing in this Schedule is intended to broaden the scope of any representation or warranty contained in the Agreement or to create any covenant. Inclusion of any item in this Schedule (i) does not represent a determination that such item is material or establish a standard of materiality, (ii) does not represent a determination that such item did not arise in the ordinary course of business, (iii) does not represent a determination that the transactions contemplated by the Agreement require the consent of third parties, and (iv) shall not constitute, or be deemed to be, an admission to any third party concerning such item.
 
Schedule 3.06	Litigation	
 
 	•	 	Dean Woodman, a stockholder of the Company, has asserted in correspondence with the Company that the Company and its Chief Executive Officer had defamed him by not appropriately crediting his contributions to the Company and may seek damages and has asserted in correspondence with the Company that the grant of certain stock options allegedly constituted corporate waste and a breach of fiduciary duty. To the Company’s knowledge, Dean Woodman has not filed either a defamation lawsuit or a shareholder derivative lawsuit.	
 
 	•	 	On December 5, 2012, e.Digital Corporation (“e.Digital”) filed a lawsuit captioned e.Digital Corporation v. Woodman Labs, Inc. dba GoPro, et al ., case No. 3:12-cv-02899 in the United States District Court for the Southern District of California (‘the e.Digital litigation”). The complaint in the e.Digital litigation alleges infringement of United States Patent No. 5,742,737 (“the ’737 patent”) by the Company’s products including at least Hero, Hero2, and Hero3 series camcorders. The ’737 patent is entitled “Method for Recording Voice Messages on Flash Memory In A Hand Held Recorder.” The complaint also alleges infringement of the same patent by certain retailers that are alleged to sell the Company’s products. Those retailers are Target Corporation, Sport Chalet, Inc., Quicksilver, Inc., Recreational Equipment, Inc. dba REI, and Buy.com, Inc. (“the retailer defendants”). To date, one of the retailer defendants has requested that the Company indemnify and defend it in the e.Digital litigation. The Company’s response to the complaint is currently due on January 2, 2013.	
 
Schedule 3.14	Subsidiaries	
(a)
 
[Signature Page to Credit Agreement]

					
Name	  	Jurisdiction	  	Owners of Equity Interests	
			
Cineform, Inc.	  	Delaware	  	Woodman Labs, Inc.: 100%	
			
Woodman Labs Hong Kong Limited	  	Hong Kong	  	Woodman Labs Cayman, Inc.: 100%	
			
Woodman Labs Cayman, Inc.	  	Cayman Islands	  	Woodman Labs, Inc.: 100%	
 
Schedule 3.19	Security Documents	
To the knowledge of the Company: None.
 
Schedule 6.01	Indebtedness	
None.
 
Schedule 6.02	Liens	

Name of Holder of Lien/Encumbrance	  	Description of Property Encumbered	  	Company/Subsidiary	
			
U.S. Bancorp Equipment Finance, Inc.	  	Certain equipment, including copiers, a spectrophotometer and an EFI image controller.
 
[Office copy machine financing]	  	Company x OR Name of Sub	
			
Webbank	  	All computer equipment, peripherals, and other equipment financed to the Company pursuant to their credit account with Webbank.
 
[Dell Computer financing]	  	Company x OR Name of Sub	
 
Schedule 6.09	Restrictive Agreements	
None.
***
 
[Signature Page to Credit Agreement]

EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [ Insert name of Assignor ] (the “ Assignor ”) and [ Insert name of Assignee ] (the “ Assignee ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, 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 in its capacity 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 any letters of credit, guarantees, and swingline loans 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 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 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:	  	 	  		
				
2.	  	Assignee:	  	 	  		
[and is an Affiliate/Approved Fund of [ identify Lender ] 1 ]	  		
				
3.	  	Borrower:	  	Woodman Labs, Inc., d/b/a GoPro	  		
			
4.	  	Administrative Agent:	  	JPMorgan Chase Bank, National Association, as the administrative agent under the Credit Agreement	
			
5.	  	Credit Agreement:	  	The $170,000,000 Credit Agreement dated as of December [    ], 2012 among Woodman Labs, Inc., d/b/a GoPro, the Guarantors party thereto, the Lenders party thereto, and JPMorgan Chase Bank, National Association, as Administrative Agent	

1  	Select as applicable.	
 
[Signature Page to Credit Agreement]

6.	Assigned Interest:	

Facility Assigned 2	  	Aggregate Amount of
Commitment/Loans for all
Lenders	 	  	Amount of
Commitment/Loans
Assigned	 	  	Percentage Assigned of
Commitment/Loans 3	 	
	  	$	 	  	  	$	 	  	  	 	    	% 	
	  	$	 	  	  	$	 	  	  	 	    	% 	
	  	$	 	  	  	$	 	  	  	 	    	% 	
Effective Date:            , 20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee agrees to deliver to the Administrative Agent a completed 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 and its 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.
The terms set forth in this Assignment and Assumption are hereby agreed to:

ASSIGNOR	
	
[NAME OF ASSIGNOR]	
			
	 	By:	 	 	
	 		 	Title:	
	
ASSIGNEE	
	
[NAME OF ASSIGNEE]	
			
	 	By:	 	 	
	 		 	Title:	

2  	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,” “Tranche A Commitment,” etc.)	
3  	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.	
 
[Signature Page to Credit Agreement]

					
[Consented to and] 4 Accepted:	
	
[NAME OF ADMINISTRATIVE AGENT], as Administrative Agent	
		
By:	 	 	
	 	Title:	
	
[Consented to:] 5	
	
[NAME OF RELEVANT PARTY]	
		
By:	 	 	
	 	Title:	

4  	To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.	
5  	To be added only if the consent of the Borrower and/or other parties (e.g. Swingline Lender, Issuing Bank) is required by the terms of the Credit Agreement.	
 
[Signature Page to Credit Agreement]

ANNEX 1
[                    ] 6
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 Credit Agreement, any other Loan Document or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of the Agreement or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under the Agreement.
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 satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and other Loan Documents as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 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, and (v) attached to the Assignment and Assumption 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 (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, 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

6  	Describe Credit Agreement at option of Administrative Agent.	
 
[Signature Page to Credit Agreement]

instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy 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 law of the State of New York.
 
[Signature Page to Credit Agreement]

EXHIBIT B-1
EXHIBIT B-1
[Form of] Revolving Note

$                    	 	December [    ], 2012	
FOR VALUE RECEIVED, WOODMAN LABS, INC., D/B/A GOPRO, a Delaware corporation (the “ Borrower ”), hereby promises to pay to the order of [ name of Lender ] or registered assigns (the “ Lender ”), the principal sum of $        ([        ] Million Dollars) or such lesser amount as shall equal the aggregate unpaid principal amount of the Revolving Loans made by the Lender to the Borrower under the Credit Agreement dated as of December [    ], 2012 (as amended from time to time, the “ Agreement ”) among the Borrower, the guarantors party thereto, the lenders (including the Lender) party thereto, and JPMorgan Chase Bank, National Association, as administrative agent thereunder (the “ Administrative Agent ”), and outstanding on the Revolving Commitment Termination Date, in lawful money of the United States of America and in immediately available funds, in accordance with the provisions of the Agreement. The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan from the date such Revolving Loan is made until such principal amount is paid in full, at such interest rates and at such times as are specified in the Agreement. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.
The Lender shall enter the amount of each Revolving Loan advanced by it to the Borrower, along with the maturities, interest rates, interest accrued thereon, and all payments and repayments in respect thereto on the schedule which is attached to this Revolving Note, and the Borrower hereby authorizes the Lender to make such entries. Absent manifest error, such schedule shall constitute presumptive evidence of the amount from time to time outstanding hereunder, provided that the failure of the Lender to make such entries on said schedule shall not affect the obligation of the Borrower to pay when due all Revolving Loans, together with interest accrued thereon, which obligation shall remain absolute and unconditional.
This Revolving Note shall remain valid and enforceable despite the fact that there may be times when no indebtedness is owing hereunder.
All capitalized terms used herein shall have the respective meanings given to them in the Agreement.
This Revolving Note is one of the Revolving Notes referred to in the Agreement and evidences Revolving Loans made to the Borrower by the Lender thereunder. This Note is also entitled to the benefits of the Guaranty provided by the Guarantors and is secured by the Collateral. All terms and conditions in the Agreement relating to this Revolving Note are herein incorporated by reference.
Upon the occurrence of an Event of Default, the principal hereof and accrued interest hereon shall become, or may be declared to be, forthwith due and payable in the manner, subject to the terms and conditions, and with the effect provided in the Agreement.
 
[Signature Page to Credit Agreement]

In addition to all principal of and accrued interest on this Revolving Note, the Borrower agrees to pay (a) all reasonable costs and expenses incurred by all of the holders of this Revolving Note in collecting this Revolving Note, whether through reorganization, bankruptcy or other proceedings and (b) reasonable attorneys’ fees when and if this Revolving Note is placed in the hands of an attorney for collection.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Note.
THIS REVOLVING NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
 
[Signature Page to Credit Agreement]

Schedule to the Revolving Note of
WOODMAN LABS, INC., D/B/A GOPRO

Date	  	Type
of Loan Made	  	Amount of
Loan Made	  	End
of Interest
Period	  	Amount of
Principal or
Interest Paid
This Date	  	Outstanding
Principal
Balance This
Date	  	Notation Made
By	

	  		  		  		  		  		  		

	  		  		  		  		  		  		

	  		  		  		  		  		  		

	  		  		  		  		  		  		

	  		  		  		  		  		  		

	  		  		  		  		  		  		
 
[Signature Page to Credit Agreement]

EXHIBIT B-2
EXHIBIT B-2
[Form of] Tranche A Term Note

$	  	December [    ], 2012            	
FOR VALUE RECEIVED, WOODMAN LABS, INC., D/B/A GOPRO, a Delaware corporation (the “ Borrower ”), hereby promises to pay to the order of [name of Lender] or registered assigns (the “Lender”), the principal sum of $        ([        ] Million Dollars) or such lesser amount as shall equal the aggregate unpaid principal amount of the Tranche A Term Loans made by the Lender to the Borrower under the Credit Agreement dated as of December [    ], 2012 (as amended from time to time, the “ Agreement ”) among the Borrower, the guarantors party thereto, the lenders (including the Lender) party thereto, and JPMorgan Chase Bank, National Association, as administrative agent thereunder (the “ Administrative Agent ”), and outstanding on the Term Loan Maturity Date, in lawful money of the United States of America and in immediately available funds, in accordance with the provisions of the Agreement. The Borrower promises to pay interest on the unpaid principal amount of each Tranche A Term Loan from the date such Tranche A Term Loan is made until such principal amount is paid in full, at such interest rates and at such times as are specified in the Agreement. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.
The Lender shall enter the amount of each Tranche A Term Loan advanced by it to the Borrower, along with the maturities, interest rates, interest accrued thereon, and all payments and repayments in respect thereto on the schedule which is attached to this Tranche A Term Note, and the Borrower hereby authorizes the Lender to make such entries. Absent manifest error, such schedule shall constitute presumptive evidence of the amount from time to time outstanding hereunder, provided that the failure of the Lender to make such entries on said schedule shall not affect the obligation of the Borrower to pay when due all Tranche A Term Loans, together with interest accrued thereon, which obligation shall remain absolute and unconditional.
All capitalized terms used herein shall have the respective meanings given to them in the Agreement.
This Tranche A Term Note is one of the Tranche A Term Notes referred to in the Agreement and evidences Tranche A Term Loans made to the Borrower by the Lender thereunder. This Tranche A Term Note is also entitled to the benefits of the Guaranty provided by the Guarantors and is secured by the Collateral. All terms and conditions in the Agreement relating to this Tranche A Term Note are herein incorporated by reference.
Upon the occurrence of an Event of Default, the principal hereof and accrued interest hereon shall become, or may be declared to be, forthwith due and payable in the manner, subject to the terms and conditions, and with the effect provided in the Agreement.
In addition to all principal of and accrued interest on this Tranche A Term Note, the Borrower agrees to pay (a) all reasonable costs and expenses incurred by all of the holders of this Tranche A Term Note in collecting this Tranche A Term Note, whether through reorganization, bankruptcy or other proceedings and (b) reasonable attorneys’ fees when and if this Tranche A Term Note is placed in the hands of an attorney for collection.
 
[Signature Page to Credit Agreement]

The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Tranche A Term Note.
THIS TRANCHE A TERM NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS TRANCHE A TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
 
[Signature Page to Credit Agreement]

EXHIBIT C-1
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of December [    ], 2012 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”) among Woodman Labs, Inc., d/b/a GoPro, the Guarantors party thereto, each lender from time to time party thereto, and JPMorgan Chase Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 2.17 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 ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]	
		
 By:	 	 	
	 	Name:	
	 	Title:	
	
Date:                  , 20[    ]	
 
[Signature Page to Credit Agreement]

EXHIBIT C-2
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of December [    ], 2012 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”) among Woodman Labs, Inc., d/b/a GoPro, the Guarantors party thereto, each lender from time to time party thereto, and JPMorgan Chase Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 2.17 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 ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]	
		
 By:	 	 	
	 	Name:	
	 	Title:	
	
Date:                  , 20[    ]	
 
[Signature Page to Credit Agreement]

EXHIBIT C-3
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of December [    ], 2012 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”) among Woodman Labs, Inc., d/b/a GoPro, the Guarantors party thereto, each lender from time to time party thereto, and JPMorgan Chase Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies 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) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W- 8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]	
		
By:	 		
	 	Name:	
	 	Title:	
		
Date:	 	            , 20[    ]	
 
[Signature Page to Credit Agreement]

EXHIBIT C-4
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of December [    ], 2012 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”) among Woodman Labs, Inc., d/b/a GoPro, the Guarantors party thereto, each lender from time to time party thereto, and JPMorgan Chase Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies 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) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W- 8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Credit Agreement]

EXHIBIT D
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date:             ,         
 
To:	JPMorgan Chase Bank, N.A., as	
Administrative Agent under the
Credit Agreement referred to below
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of                      (as amended, 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 the undersigned, the Guarantors party thereto, the Lenders party thereto and JPMorgan Chase Bank, National Association, as the Administrative Agent for such Lenders.
The undersigned Financial Officer 7 hereby certifies (on behalf of the Borrower and not in such person’s individual capacity) as of the date hereof that he/she is the                                          of the Borrower, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate to the Administrative Agent on the behalf of the Borrower, and that:
1. I have reviewed the terms of the Credit Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Company and its Subsidiaries during the accounting period covered by the attached financial statements [and such financial statements delivered with this Compliance Certificate in accordance with Section 5.01(b) of the Credit Agreement present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes.] 8
2. No Default has occurred[, except for such events or conditions listed on Schedule [    ] attached hereto] 9
3. The financial information furnished in Schedule [    ] attached hereto sets forth reasonably detailed calculations demonstrating compliance with Section 6.13(a) of the Credit Agreement for the period of four (4) consecutive fiscal quarters ending with the end of the period to which the financial statements delivered herewith relate.

7  	This certificate should be from the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.	
8  	Insert bracketed language if the Company is delivering financial statements pursuant to Section 5.01(b) of the Credit Agreement.	
9  	Insert bracketed language only if a Default has occurred and is continuing. The details of any such Default and any action taken or proposed to be taken with respect to such Default should be specified on the Schedule.	
 
[Signature Page to Credit Agreement]

EXHIBIT D
 
4. The financial information furnished in Schedule [     ] attached hereto sets forth reasonably detailed calculations demonstrating compliance with Section 6.13(b) of the Credit Agreement for the fiscal quarter ending with the end of the period to which the financial statements delivered herewith relate.
5. No change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 of the Credit Agreement[, except for such changes listed on Schedule [    ] attached hereto] 10 .

10  	Insert bracketed language only if a change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 of the Credit Agreement. The effect of any such change on the financial statements delivered with this Compliance Certificate should be specified on the Schedule.	
 
[Signature Page to Credit Agreement]

EXHIBIT D
 
IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of             ,         .

	 	WOODMAN LABS, INC., D/B/A GOPRO	
		
By:	 	 	
Name:	 	 	
Title:	 	 	
 
[Signature Page to Credit Agreement]

EXHIBIT D
 
[SCHEDULE [    ]
Default]
 
[Signature Page to Credit Agreement]

EXHIBIT D
 
SCHEDULE [    ]
Financial Covenants
($ in 000’s)
For the Fiscal Quarter/Year ended             ,          (“Statement Date”)

 
											
I.	 	Section 6.13(a) – Consolidated Leverage Ratio.	  				
				
	 	A.	 	Consolidated Funded Debt:	  	$	            	  	
					
	 		 	1.	  	Outstanding obligations for borrowed money:	  	$	 	  	
					
	 		 	2.	  	Purchase money Indebtedness:	  	$	 	  	
					
	 		 	3.	  	Direct obligations arising under letters of credit and similar instruments:	  	$	 	  	
					
	 		 	4.	  	Obligations in respect of the deferred purchase price of property or services	  	$	 	  	
					
	 		 	5.	  	Capital Lease Obligations	  	$	 	  	
					
	 		 	6.	  	Guarantees with respect to outstanding Indebtedness of Persons other than Borrower or any Subsidiary	  	$	 	  	
					
	 		 	7.	  	Indebtedness of any partnership or joint venture in which the Borrower or a Subsidiary is a general partner or joint venturer	  	$	 	  	
					
	 		 	8.	  	Consolidated Funded Debt (Lines I.A.1 + 2 + 3 + 4 + 5+ 6 + 7	  	$	 	  	
				
	 	B.	 	Consolidated EBITDA for the period from                      to                      (the “Subject Period”:	  	$	 	  	
					
	 		 	1.	  	Consolidated Net Income for Subject Period:	  	$	 	  	
					
	 		 	2.	  	Consolidated Interest Expense for Subject Period:	  	$	 	  	
					
	 		 	3.	  	Provision for income taxes for Subject Period:	  	$	 	  	
					
	 		 	4.	  	Depreciation and amortization expenses for Subject Period:	  	$	 	  	
					
	 		 	5.	  	Stock-based compensation expense for Subject Period	  	$	 	  	
					
	 		 	6.	  	Income tax credits for Subject Period:	  	$	 	  	
					
	 		 	7.	  	Non-cash increases to Consolidated Net Income for Subject Period:	  	$	 	  	
					
	 		 	8.	  	Consolidated EBITDA (Lines I.B.1 + 2 + 3 + 4 + 5 - 6 –7):	  	$	 	  	
 
[Signature Page to Credit Agreement]

EXHIBIT D

				
	 	C.	 	Consolidated Leverage Ratio (Ratio of (A) to (B)):	  	 	         to 1.00	  	
				
	 		 	The maximum Consolidated Leverage Ratio at any time during any of the following periods set forth below shall not exceed the ratio set forth below opposite such period:	  				

Period:	  	Consolidated
Leverage
Ratio	 	
Effective Date through June 30, 2013	  	 	3.00	  	
July 1, 2013 through September 30, 2013	  	 	2.75	  	
October 1, 2013 through December 31, 2013	  	 	2.50	  	
January 1, 2014 through December 31, 2014	  	 	2.00	  	
January 1, 2015 through December 31, 2015 and thereafter	  	 	1.50	  	

II.	 	Section 6.13(b) – Consolidated Interest Coverage Ratio.	  				
				
	 	A.	 	Consolidated EBITDA for the period from                      to                     :	  	$	 	  	
				
	 	B.	 	Consolidated Interest Expense for the period from to                     :	  	$	 	  	
				
	 	C.	 	Consolidated Interest Coverage Ratio (Ratio of (A) to (B)):	  	 	         to 1.00	  	
				
	 		 	The minimum Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower is 5.00 to 1.00	  				
 
[Signature Page to Credit Agreement]

EXHIBIT D
 
[SCHEDULE [    ]
Changes in GAAP]
 
[Signature Page to Credit Agreement]

[EXECUTION
COUNTERPART]
February 15, 2013
Woodman Labs, Inc., d/b/a GoPro
3000 Clearview Way, Building E
San Mateo, CA 94402
Attention: Chief Financial Officer
 
 	Re:	Letter Amendment to Credit Agreement	
Ladies and Gentlemen:
We refer to (i) the Credit Agreement dated as of December 21, 2012 (as amended and in effect from time to time, the “ Credit Agreement ”) among Woodman Labs, Inc., d/b/a GoPro (the “ Borrower ”), the Guarantors party thereto, the Lenders party thereto, and JPMorgan Chase Bank, National Association, as administrative agent for such Lenders (in such capacity, the “ Administrative Agent ”), and (ii) the Security Agreement dated as of December 21, 2012 (as amended and in effect from time to time, the “ Security Agreement ”) among the Borrower, the Guarantors party thereto and the Administrative Agent. Capitalized terms used but not defined herein are used as defined in the Credit Agreement.
This letter amendment confirms our mutual agreement, with the consent of the Required Lenders as evidenced by their signatures below, effective as of the date hereof, to amend Section 5.01(f) of the Credit Agreement by amending and restating said Section 5.01(f) to read in its entirety as follows:
“(f) concurrently with any delivery of financial statements under clause (a) or (b) above, a narrative discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter or fiscal year, as applicable, and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter or fiscal year, as applicable, as compared to the portion of the Projections covering such periods and to the comparable periods of the previous year;”
Under Section 3.6 of the Security Agreement, the Borrower and Administrative Agent may agree in writing to extend the date by which the Grantors shall maintain their primary Deposit Accounts with the Administrative Agent. The Borrower and Administrative Agent hereby confirm their mutual agreement to extend the date by which the Grantors shall maintain their primary Deposit Accounts with Administrative Agent to March 21, 2013.
The Loan Parties hereby ratify all of their Obligations under the Credit Agreement and the other Loan Documents and agree and acknowledge that the Credit Agreement and the other Loan Documents are and shall continue to be in full force and effect as amended and modified by this letter amendment. Each Loan Party hereby ratifies, affirms, acknowledges and agrees that each Loan Document to which it is a party represents the valid, enforceable and collectible obligations of such Loan Party, and further acknowledges and agrees that, to its knowledge, it has no defense (whether legal or equitable), set-off or counterclaim to the payment or performance of the Obligations in accordance with the terms of the Loan Documents. Each Loan Party hereby represents and warrants to the Lenders and Administrative Agent as of the date hereof that no Default has occurred and is continuing. Each Loan Party hereby agrees that this

letter amendment in no way acts as a release or relinquishment of the Liens and rights securing payments of the Obligations. Each Loan Party hereby ratifies and reaffirms all of the Liens heretofore granted pursuant to the Loan Documents, as collateral security for the Obligations, and acknowledges that all of such Liens, and all collateral heretofore pledged as security for the Obligations, continues to be and remains collateral for the Obligations from and after the date hereof. Except to the limited extent set forth above, nothing in this letter amendment extinguishes, novates or releases any right, claim, lien, security interest or entitlement of any of the Lenders or the Administrative Agent created by or contained in the Credit Agreement or in any other Loan Document nor are the Loan Parties released from any covenant, warranty or obligation created by or contained therein. The amendments set forth herein are limited precisely as written and shall not be deemed to be an amendment to, consent to or a waiver of any other term or condition of any of the Loan Documents.
The Borrower agrees to pay the Administrative Agent for all expenses (including, without limitation, all reasonable fees of attorneys for the Administrative Agent) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this letter amendment.
Upon and after the effectiveness of this letter amendment, each reference in the Credit Agreement and Security Agreement, respectively, to “this Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring to the Credit Agreement or Security Agreement, as applicable, and each reference in the other Loan Documents to “the Credit Agreement”, “the Security Agreement”, “thereunder”, “therein”, “thereof” or words of like import referring to the Credit Agreement or Security Agreement, as applicable, shall mean and be a reference to the Credit Agreement or Security Agreement, as applicable, as modified and amended hereby.
THE VALIDITY OF THIS LETTER AMENDMENT, ITS CONSTRUCTION, INTERPRETATION AND ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HEREUNDER, SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. No amendment, modification, supplement or termination of or to any provision of this letter amendment shall be effective unless in writing and signed by the parties hereto. This letter amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this letter amendment by facsimile or pdf shall be as effective as delivery of a manually executed counterpart of this letter amendment. Any party delivering an executed counterpart of this letter amendment by telecopier, emailed pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this letter amendment.
This letter amendment is a Loan Document.
[Remainder of Page Left Blank]
 
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Please indicate your consent to, and agreement with, the foregoing by signing in the space provided below.

Very truly yours,	
	
JPMORGAN CHASE BANK, N.A.,	
Individually and as Administrative Agent	
		
By:	 	/s/ Tony Yung	
	 	Name:	 	Tony Yung	
	 	Title:	 	Executive Director	
The foregoing is hereby accepted and agreed to by the undersigned, on and as of the day and year first above written.

BORROWER :	
	
WOODMAN LABS, INC., D/B/A GOPRO	
		
By:	 	/s/ Kurt Amundson	
Name:	 	Kurt Amundson	
Title:	 	CFO	
	
GUARANTOR :	
	
CINEFORM INC.	
		
By:	 	/s/ Nicholas Woodman	
Name:	 	Nicholas Woodman	
Title:	 	CEO	
[signature pages continue]
 
Signature Page to Letter Amendment

The foregoing is hereby consented to by the undersigned, on and as of the day and year first above written.

CONSENTED TO :	
	
BARCLAYS BANK PLC	
		
By:	 	/s/ Noam Azachi	
	 	Name:	 	Noam Azachi	
	 	Title:	 	Assistant Vice President	
	
CITIBANK, N.A.	
		
By:	 	/s/ Sean Klimchalk	
	 	Name:	 	Sean Klimchalk	
	 	Title:	 	Vice President	
	
SILICON VALLEY BANK	
		
By:	 	/s/ Christopher L. Snider	
	 	Name:	 	Christopher L. Snider	
	 	Title:	 	Managing Director	
	
U.S. BANK	
		
By:	 	/s/ Matthew Murray	
	 	Name:	 	Matthew Murray	
	 	Title:	 	Vice President	
 
Signature Page to Letter Amendment

SECOND AMENDMENT
This SECOND AMENDMENT (this “ Amendment ”), dated as of August 19, 2013, by and among WOODMAN LABS, INC., D/B/A GOPRO, a Delaware corporation (the “ Borrower ”), the GUARANTOR party hereto, the LENDERS party hereto, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders party to the Credit Agreement referred to below (in such capacity, the “ Administrative Agent ”). All capitalized terms used herein, unless otherwise defined herein, have the same meanings provided therefor in the Credit Agreement.
RECITALS
WHEREAS, the Loan Parties, the Lenders and the Administrative Agent are parties to that certain Credit Agreement dated as of December 21, 2012 (as amended by that letter amendment dated as of February 15, 2013 among the Loan Parties, the Lenders and the Administrative Agent, and as may be further amended from time to time, the “ Credit Agreement ”);
WHEREAS, the Loan Parties have requested an amendment to Section 6.04 of the Credit Agreement in order to permit a program between Best Buy and the Borrower pursuant to which Best Buy discounts the Borrower’s invoices to Best Buy for product, to the extent provided below; and
WHEREAS, the Required Lenders have agreed to amend the Credit Agreement and certain schedules to the Security Agreement to the extent provided in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration and the mutual benefits, covenants and agreements herein expressed, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendments . In reliance upon the representations and warranties of the Loan Parties set forth in Section 2 below, and subject to the satisfaction of the conditions to effectiveness set forth in Section 3 below, effective as of the Effective Date:
(a) Section 1.01 of the Credit Agreement is hereby amended by adding the following new definitions in their appropriate alphabetical order:
““ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.”
““ Excluded Swap Obligation ” means with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.”

““ Qualified ECP Guarantor ” means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.”
““ Swap Obligation ” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.”
(b) The definition of “ Obligations ” in Section 1.01 of the Credit Agreement is hereby amended by amending and restating said definition to read in its entirety as follows:
““ Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency or similar laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that the term “Obligations” shall not include any Excluded Swap Obligation.”
(c) Section 6.04(b) of the Credit Agreement is hereby amended by amending and restating said Section 6.04(b) to read in its entirety as follows:
“(b) Dispositions of accounts receivable in factoring transactions in an aggregate amount not to exceed $30,000,000 at any time;”
(d) Article VIII of the Credit Agreement is hereby amended by adding the following new Section 8.11:
“SECTION 8.11. Keepwell . Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Guarantor to honor all of its obligations under this Guarantee in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 8.11 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 8.11 or otherwise under this Guarantee voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 8.11 shall remain in full force and effect until the termination of the Commitments and payment in full in cash of all Obligations (other than (x) obligations under Secured Hedge Agreements not yet due and payable and (y) contingent indemnification obligations not yet accrued and payable) and the expiration or termination or cash collateralization of all Letters of Credit in accordance with the Loan Documents. Each Qualified ECP Guarantor intends that this Section 8.11 constitute, and this Section 8.11 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.”
 
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(e) Schedule 3.6 to the Security Agreement is hereby replaced in its entirety with Schedule 3.6 attached hereto.
(f) Schedule 3.12 to the Security Agreement is hereby replaced in its entirety with Schedule 3.12 attached hereto.
2. Representations and Warranties . In order to induce the Lenders and Administrative Agent to enter into this Amendment, each Loan Party hereby represents and warrants to the Lenders and Administrative Agent that:
(a) All representations and warranties of such Loan Party contained in the Loan Documents to which such Loan Party is a party are true and correct on and as of the date of this Amendment as if made on and as of the date of this Amendment (except to the extent any representation or warranty expressly related to an earlier date, in which case such representation and warranty is true and correct on and as of such earlier date).
(b) No Default, including without limitation no Event of Default, has occurred and is continuing.
(c) The execution, delivery and performance of this Amendment is within each Loan Party’s corporate (or equivalent) powers and has been duly authorized by all necessary corporate and, if required, stockholder action.
(d) This Amendment has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
3. Conditions to Effectiveness . This Amendment shall become effective only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “ Effective Date ”):
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by the Required Lenders and Loan Parties;
(b) No Default, including without limitation no Event of Default, shall have occurred and be continuing on the date hereof or as of the Effective Date; and
(c) The Administrative Agent shall have received such other consents, approvals, opinions or documents as the Administrative Agent may reasonably request, including without limitation applicable filings with the US Patent and Trademark Office.
4. Ratification . The Loan Parties hereby ratify all of their Obligations under the Credit Agreement and the other Loan Documents and agree and acknowledge that the Credit Agreement and the other Loan Documents are and shall continue to be in full force and effect as amended and modified by this Amendment. Each Loan Party hereby ratifies, affirms, acknowledges and agrees that each Loan Document to which it is a party represents the valid, enforceable and collectible obligations of such Loan
 
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Party, and further acknowledges and agrees that it has no defense (whether legal or equitable), set-off or counterclaim to the payment or performance of the Obligations in accordance with the terms of the Loan Documents. Each Loan Party hereby agrees that this Amendment in no way acts as a release or relinquishment of the Liens and rights securing payments of the Obligations. Each Loan Party hereby ratifies and reaffirms all of the Liens heretofore granted pursuant to the Loan Documents, as collateral security for the Obligations, and acknowledges that all of such Liens, and all collateral heretofore pledged as security for the Obligations, continues to be and remains collateral for the Obligations from and after the date hereof, except for Dispositions expressly permitted under the Credit Agreement. Except to the limited extent set forth above, nothing in this Amendment extinguishes, novates or releases any right, claim, lien, security interest or entitlement of any of the Lenders or the Administrative Agent created by or contained in the Credit Agreement or in any other Loan Document nor are the Loan Parties released from any covenant, warranty or obligation created by or contained therein.
5. No Waiver; Amendments .
(a) The amendments and waiver set forth herein are limited precisely as written and shall not be deemed to be an amendment to, consent to or a waiver of any other term or condition of any of the Loan Documents.
(b) No amendment, modification, supplement or termination of or to any provision of this Amendment shall be effective unless in writing and signed by the parties hereto. No waiver of any term, covenant or provision of this Amendment shall be effective unless given in writing by the parties hereto. Any amendment, modification or supplement of or to, or any waiver of, any provision of this Amendment in each case (if so given in accordance with the foregoing in this Section 5) shall be effective only in the specific instance and for the specific purpose for which made or given.
6. Expenses . The Borrower agrees to pay the Administrative Agent for all expenses (including, without limitation, all reasonable fees of attorneys for the Administrative Agent) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment and any other document required to be furnished herewith.
7. Governing Law; Jurisdiction; Consent to Service of Process . The provisions of Section 10.09 of the Credit Agreement are hereby incorporated herein, mutatis mutandis , as if a part hereof.
8. WAIVER OF JURY TRIAL . The provisions of Section 10.10 of the Credit Agreement are hereby incorporated herein, mutatis mutandis, as if a part hereof.
9. Counterparts . This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier, emailed pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Amendment.
10. Severability . Any provision of this Amendment 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.
11. Loan Document . This Amendment is a Loan Document.
 
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

BORROWER :	
	
WOODMAN LABS, INC., D/B/A GOPRO	
		
By:	 	/s/ Nicholas Woodman	
	 	Name: Nicholas Woodman	
	 	Title:   CEO	
	
GUARANTOR :	
	
CINEFORM INC.	
		
By:	 	/s/ Nicholas Woodman	
	 	Name: Nicholas Woodman	
	 	Title:   CEO	
 
Signature Page to Amendment

					
JPMORGAN CHASE BANK, N.A.,	
individually and as Administrative Agent	
		
By:	 	/s/ Tony Yung	
	 	Name: Tony Yung	
	 	Title:   Executive Director	
 
Signature Page to Amendment

					
BARCLAYS BANK PLC	
		
By:	 	/s/ Gregory Fishbein	
	 	Name: Gregory Fishbein	
	 	Title:   Assistant Vice President	
 
Signature Page to Amendment

			
CITIBANK, N.A.	
		
By:	 	/s/ Matthew Sutton	
	 	Name: Matthew Sutton	
	 	Title:   Vice President	
 
Signature Page to Amendment

			
SILICON VALLEY BANK	
		
By:	 	/s/ Alina Zinchik	
	 	Name: Alina Zinchik	
	 	Title:   Vice President	
 
Signature Page to Amendment

			
U.S. BANK	
		
By:	 	/s/ Matthew D. Murray	
	 	Name: Matthew D. Murray	
	 	Title:   Vice President	
 
Signature Page to Amendment

SCHEDULE 3.6

Name	  	Account Number	  	Branch Address	  	Account Holder	
				
Wells Fargo Bank, N.A.	  	2118396759	  	132 San Mateo Road
Half Moon Bay , Ca 94019	  	Woodman Labs, Inc.	
				
Wells Fargo Bank, N.A.	  	3343462176	  	132 San Mateo Road
Half Moon Bay , Ca 94019	  	Woodman Labs, Inc.	
				
Wells Fargo Bank, N.A.	  	7784484680	  	132 San Mateo Road
Half Moon Bay , Ca 94019	  	Woodman Labs, Inc.	
				
Wells Fargo Bank, N.A.	  	1328499619	  	132 San Mateo Road
Half Moon Bay , Ca 94019	  	Woodman Labs, Inc.	
				
Wells Fargo Bank, N.A. (Hong Kong Branch)	  	18-550977-2105	  	7/F, Citiplaza Four
12 Taikoo Wan Road
Taikoo Shing, Island East
Hong Kong	  	Woodman Labs, Inc.	
				
J.P. Morgan Chase Bank N.A.	  	496560488	  	1 Chase Manhattan Plaza,
New York, NY 10005	  	Woodman Labs, Inc.	
				
J.P. Morgan Chase Bank N.A.	  	496560462	  	1 Chase Manhattan Plaza,
New York, NY 10005	  	Woodman Labs, Inc.	
				
J.P. Morgan Chase Bank N.A.	  	496560470	  	1 Chase Manhattan Plaza,
New York, NY 10005	  	Woodman Labs, Inc.	

SCHEDULE 3.12
Trade Names :
“GoPro”
Issued Patents and Applications therefor :
See Annex 1.
Registered Trademarks and Applications therefor :
See Annex 2.

EXECUTION COUNTERPART
THIRD AMENDMENT
This THIRD AMENDMENT (this “ Amendment ”), dated as of October 18, 2013, by and among WOODMAN LABS, INC., D/B/A GOPRO, a Delaware corporation (the “ Borrower ”), the GUARANTORS party hereto, the LENDERS party hereto, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders party to the Credit Agreement referred to below (in such capacity, the “ Administrative Agent ”). All capitalized terms used herein, unless otherwise defined herein, have the same meanings provided therefor in the Credit Agreement.
RECITALS
WHEREAS, the Loan Parties, the Lenders and the Administrative Agent are parties to that certain Credit Agreement dated as of December 21, 2012 (as amended by that certain letter amendment dated as of February 15, 2013 among the Loan Parties, the Lenders and the Administrative Agent, and as further amended by that certain Second Amendment, dated as of August 19, 2013 among the Loan Parties, the Lenders and the Administrative Agent, and as may be further amended from time to time, the “ Credit Agreement ”);
WHEREAS, the Loan Parties have requested certain amendments to the Credit Agreement to, among other things, permit the acquisition by the Borrower of General Things, Inc., a California corporation, for up to Ten Million Dollars ($10,000,000) in cash and up to Four Hundred Thirty Thousand (430,000) shares of the Borrower’s Common Stock, on the terms and conditions set forth herein; and
WHEREAS, on the terms and conditions set forth herein, the Loan Parties and the Required Lenders have agreed to amend the Credit Agreement and certain schedules to the Loan Documents to the extent provided in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration and the mutual benefits, covenants and agreements herein expressed, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendments . In reliance upon the representations and warranties of the Loan Parties set forth in Section 2 below, and subject to the satisfaction of the conditions to effectiveness set forth in Section 3 below, effective as of the Effective Date:
(a) Section 1.01 of the Credit Agreement is hereby amended by adding the following new definitions in their appropriate alphabetical order:
““ General Things Acquisition ” means the acquisition by Borrower of General Things, Inc. for consideration consisting of up to Ten Million Dollars ($10,000,000) in cash and up to Four Hundred Thirty Thousand (430,000) shares of Borrower’s Common Stock, pursuant to and on the terms and conditions set forth in the General Things Merger Agreement.”

““ General Things Acquisition Documents ” means the General Things Merger Agreement, the Employment Agreements described therein, the Non-Competition Agreements described therein, the Vesting and Stockholder Letter Agreement described therein, and all other agreements and instruments executed and delivered by any party to the General Things Merger Agreement pursuant to the General Things Merger Agreement.”
““ General Things Merger Agreement ” means the Agreement and Plan of Reorganization dated as of             , 2013 (as in effect on such date) by and among the Borrower, GT 1 Acquisition Sub Corp., a California corporation and whollyowned subsidiary of the Borrower, the New Subsidiary, the Target, and Nicholas Hodulik, as the Shareholders’ Agent party thereto.”
““ New Subsidiary ” means GT 2 Acquisition Sub LLC, a Delaware limited liability company and wholly-owned subsidiary of the Borrower.”
““ Target ” means General Things, Inc., a California corporation.”
(b) The definition of “Indebtedness” in Section 1.01 of the Credit Agreement is hereby amended by inserting immediately before the phrase “clause (g) of Article VII” in clause (l) of such definition the phrase “Section 6.01 and”.
(c) Section 6.01(a) of the Credit Agreement is hereby amended by amending and restating said Section 6.01(a) to read in its entirety as follows:
“(a) the Obligations;”
(d) Section 6.01 of the Credit Agreement is hereby amended by adding the following new subsection (i) to said Section 6.01:
“(i) unsecured Indebtedness consisting of deferred cash consideration for the General Things Acquisition, to the extent such deferred cash consideration is due and payable by the Borrower to the Company Shareholders (as such term is defined in the General Things Merger Agreement) under and in strict compliance with Section 1.9(a) of the General Things Merger Agreement, in an aggregate amount not to exceed Three Million Two Hundred Thousand Dollars ($3,200,000) at any time.”
(e) Section 6.05(b) of the Credit Agreement is hereby amended by amending and restating clause (iv) of said Section 6.05(b) to read in its entirety as follows:
“(iv) so long as (x) no Default has occurred and is continuing or would result from such Investment and (y) both immediately prior and (on a pro forma basis) after giving effect to such Investment, the Borrower is in compliance with Section 6.13 , additional purchases or other acquisitions of all of the Equity Interests in, or all or substantially all of the property of, any Person that, upon the consummation thereof, will be wholly-owned directly by the Borrower or one or more of its wholly-owned Subsidiaries (including as a result of a merger or consolidation); provided that, with respect to each purchase or other acquisition made pursuant to this Section 6.05(b)(iv):
 
 	(A)	any such newly-created or acquired Subsidiary shall comply with the requirements of Section 5.10;	
 
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 	(B)	the total cash and noncash consideration (including the fair market value of all Equity Interests issued or transferred to the sellers thereof, all indemnities, earnouts and other contingent payment obligations to, and the aggregate amounts paid or to be paid under noncompete, consulting and other affiliated agreements with, the sellers thereof, all write-downs of property and reserves for liabilities with respect thereto and all assumptions of debt, liabilities and other obligations in connection therewith) paid by or on behalf of the Borrower and its Subsidiaries for any such purchase or other acquisition, when aggregated with the total cash and noncash consideration paid by or on behalf of the Borrower and its Subsidiaries for all other purchases and other acquisitions made by the Borrower and its Subsidiaries pursuant to this Section 6.05(b)(iv), shall not exceed, in cumulative aggregate from the date hereof, the sum of (A) an amount which, when aggregated with the total amount of permitted Restricted Payments made in compliance with Section 6.07(e), does not exceed $50,000,000 at any time, plus (B) $17,500,000; and	
 
 	(C)	the Borrower shall have delivered to the Administrative Agent and each Lender, at least three (3) Business Days prior to the date on which any such purchase or other acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders, certifying that all of the requirements set forth in this clause (iv) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition;”	
(f) Section 6.05 of the Credit Agreement is hereby amended by adding a new subsection (f) thereto as follows:
“(f) the General Things Acquisition.”
(g) Section 6.07(e) of the Credit Agreement is hereby amended by amending and restating said Section 6.07(e) to read in its entirety as follows:
“(e) so long as (i) no Default has occurred and is continuing or would result therefrom, and (ii) the principal of and the interest on all of the Tranche A Terms Loans have been paid in full in cash pursuant to Section 2.10 or 2.11(a), the Borrower may make Restricted Payments in an aggregate cumulative amount which, when aggregated with the total amount of cash and noncash consideration paid by or on behalf of the Borrower and its Subsidiaries for all Investments made pursuant to Section 6.05(b)(iv), does not exceed $50,000,000 at any time;”
 
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(h) Section 6.07 of the Credit Agreement is hereby amended by adding a new subsection (g) thereto as follows:
“(g) the Borrower may pay the share consideration for the General Things Acquisition due and payable by the Borrower under and in strict compliance with Section 1.9 of the General Things Merger Agreement in an aggregate amount not to exceed Four Hundred Thirty Thousand (430,000) shares of the Borrower’s Common Stock at any time.”
(i) The following new Section 6.14 shall be added to the Credit Agreement:
“SECTION 6.14. General Things Acquisition . The Borrower will not, and will not permit any of its Subsidiaries to, terminate the General Things Merger Agreement or any other material General Things Acquisition Document, or amend, modify or waive any provision of any material General Things Acquisition Document, if such termination, amendment, modification or waiver could reasonably be expected to result in a Material Adverse Effect.”
(j) Schedules              to the [ insert applicable Loan Document ] are hereby replaced in their entireties with Schedules             , respectively, attached hereto. 1
2. Representations and Warranties . In order to induce the Lenders and Administrative Agent to enter into this Amendment, each Loan Party hereby represents and warrants to the Lenders and Administrative Agent that:
(a) All representations and warranties of such Loan Party contained in the Loan Documents to which such Loan Party is a party are true and correct on and as of the date of this Amendment as if made on and as of the date of this Amendment (except to the extent any representation or warranty expressly related to an earlier date, in which case such representation and warranty is true and correct on and as of such earlier date).
(b) No Default, including without limitation no Event of Default, has occurred and is continuing or would result from the General Things Acquisition.
(c) The execution, delivery and performance of this Amendment is within each Loan Party’s corporate (or equivalent) powers and has been duly authorized by all necessary corporate (or equivalent) and, if required, stockholder, member or manager action.
(d) This Amendment has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

1  	Updated schedules to come.	
 
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3. Conditions to Effectiveness . This Amendment shall become effective only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “ Effective Date ”):
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by the Required Lenders and Loan Parties.
(b) The Administrative Agent shall have received a Guarantee Assumption Agreement, duly executed and delivered by the New Subsidiary.
(c) The Administrative Agent shall have received a secretary’s certificate of the New Subsidiary, dated the Effective Date, certifying as to and attaching a copy of (i) the certificate of formation and operating agreement of the New Subsidiary 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 the New Subsidiary, (iii) resolutions of the board of directors and/or similar governing body of the New Subsidiary 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 good standing certificate from the Secretary of State of Delaware, (v) foreign qualification certificates from the Secretary of State of California [ and list applicable states, if any ] 2 2 and (vi) the General Things Merger Agreement and the Employment Agreements (as such term is defined in the General Things Merger Agreement).
(d) [Reserved.]
(e) The Administrative Agent shall have received evidence satisfactory to it that all amounts due or outstanding in respect of any and all existing indebtedness of the Target and its subsidiaries outstanding as of the Effective Date shall have been paid in full, all commitments (if any) in respect thereof terminated and all guarantees (if any) thereof and security (if any) therefor discharged and released (or arrangements satisfactory to the Administrative Agent shall have been made).
(f) The Administrative Agent shall have received evidence satisfactory to it that the General Things Acquisition shall have been (or shall be simultaneously) consummated in accordance with the terms of the General Things Merger Agreement, without any waiver or amendment not consented to by the Administrative Agent of any term, provision or condition set forth therein, and in compliance with all applicable requirements of law, including without limitation copies of the constitutive documents described in Section 1.7 of the General Things Merger Agreement, the Merger Filing and the Certificate of Merger (as such terms are defined in the General Things Merger Agreement).
(g) The Administrative Agent shall have received copies of the General Things Acquisition Documents, duly executed by the parties thereto, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent may request.

2  	Fenwick to advise on where GT has material operations.	
 
5

(h) The Administrative Agent shall have received evidence satisfactory to it that all action necessary to create and perfect valid and enforceable first-priority Liens on substantially all of the property of the New Subsidiary as collateral security for the obligations of the New Subsidiary under the Loan Documents, including without limitation the filing of an applicable UCC-1 financing statement, shall have been taken.
(i) All representations and warranties of such Loan Party contained in the Loan Documents to which such Loan Party is a party (including without limitation the Guarantee Assumption Agreement to which the New Subsidiary is party) shall be true and correct on and as of the date of this Amendment as if made on and as of the date of this Amendment (except to the extent any representation or warranty expressly related to an earlier date, in which case such representation and warranty shall be true and correct on and as of such earlier date).
(j) No Default, including without limitation no Event of Default, shall have occurred and be continuing on the date hereof or as of the Effective Date or would result from the General Things Acquisition and the transactions contemplated by this Amendment and the General Things Acquisition Documents.
(k) Both immediately prior to, and (on a pro forma basis) after giving effect to, the General Things Acquisition, the Borrower is in compliance with Section 6.13 of the Credit Agreement.
(l) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (e), (f), (g), (i), (j) and (k) above of this Section 3.
(m) The Administrative Agent shall have received all fees required to be paid on or before the Effective Date, including an amendment fee, for the account of each Lender that has consented to this Amendment in writing prior to 5:30 p.m., New York time, on             , 2013 (the “ Consenting Lenders ”), in an amount equal to equal to 0.05% of the sum of (1) such Consenting Lender’s Revolving Commitment under the Credit Agreement on the date thereof plus (2) the principal amount of such Consenting Lender’s Tranche A Term Loan outstanding on the date of this Amendment. 3
(n) The Administrative Agent shall have received payment or reimbursement of its reasonable and documented out-of-pocket expenses in connection with this Amendment and any other reasonable and documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed pursuant to the Credit Agreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent.
(o) The Administrative Agent shall have received such other documents relating to the transactions contemplated hereby as the Administrative Agent may reasonably request.

3  	NTD: Assuming that we receive the unanimous consent of the Lenders, this fee shall equal [(0.05) * ($50,000,000 + outstanding principal of Term Loan A)].	
 
6

4. Ratification . The Loan Parties hereby ratify all of their Obligations under the Credit Agreement and the other Loan Documents and agree and acknowledge that the Credit Agreement and the other Loan Documents are and shall continue to be in full force and effect as amended and modified by this Amendment. Each Loan Party hereby ratifies, affirms, acknowledges and agrees that each Loan Document to which it is a party represents the valid, enforceable and collectible obligations of such Loan Party, and further acknowledges and agrees that it has no defense (whether legal or equitable), set-off or counterclaim to the payment or performance of the Obligations in accordance with the terms of the Loan Documents. Each Loan Party hereby agrees that this Amendment in no way acts as a release or relinquishment of the Liens and rights securing payments of the Obligations. Each Loan Party hereby ratifies and reaffirms all of the Liens heretofore granted pursuant to the Loan Documents, as collateral security for the Obligations, and acknowledges that all of such Liens, and all collateral heretofore pledged as security for the Obligations, continues to be and remains collateral for the Obligations from and after the date hereof, except for Dispositions expressly permitted under the Credit Agreement. Except to the limited extent set forth above, nothing in this Amendment extinguishes, novates or releases any right, claim, lien, security interest or entitlement of any of the Lenders or the Administrative Agent created by or contained in the Credit Agreement or in any other Loan Document nor are the Loan Parties released from any covenant, warranty or obligation created by or contained therein.
5. No Waiver; Amendments .
(a) The amendments and waiver set forth herein are limited precisely as written and shall not be deemed to be an amendment to, consent to or a waiver of any other term or condition of any of the Loan Documents.
(b) No amendment, modification, supplement or termination of or to any provision of this Amendment shall be effective unless in writing and signed by the parties hereto. No waiver of any term, covenant or provision of this Amendment shall be effective unless given in writing by the parties hereto. Any amendment, modification or supplement of or to, or any waiver of, any provision of this Amendment in each case (if so given in accordance with the foregoing in this Section 5) shall be effective only in the specific instance and for the specific purpose for which made or given.
6. Expenses . The Borrower agrees to pay the Administrative Agent for all reasonable and documented expenses (including, without limitation, all reasonable fees of attorneys for the Administrative Agent) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment and any other document required to be furnished herewith.
7. Governing Law; Jurisdiction; Consent to Service of Process . The provisions of Section 10.09 of the Credit Agreement are hereby incorporated herein, mutatis mutandis , as if a part hereof.
8. WAIVER OF JURY TRIAL . The provisions of Section 10.10 of the Credit Agreement are hereby incorporated herein, mutatis mutandis , as if a part hereof.
 
7

9. Counterparts . This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier, emailed pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Amendment.
10. Severability . Any provision of this Amendment 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.
11. Loan Document . This Amendment is a Loan Document.
 
8

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

BORROWER :	
	
WOODMAN LABS, INC., D/B/A/ GOPRO	
		
By:	 	/s/ Nicholas Woodman	
	 	Name:	 	Nicholas Woodman	
	 	Title:	 	CEO, President and Secretary	
	
GUARANTORS :	
	
CINEFORM INC.	
		
By:	 	/s/ Nicholas Woodman	
	 	Name:	 	Nicholas Woodman	
	 	Title:	 	President, CEO and Secretary	
	
GT 2 ACQUISITION SUB LLC	
		
By:	 	/s/ Nicholas Woodman	
	 	Name:	 	Nicholas Woodman	
	 	Title:	 	CEO, President, Treasurer, Secretary and Sole Manager	
Signature Page to Third Amendment to Credit Agreement

					
JPMORGAN CHASE BANK, N.A.,	
individually and as Administrative Agent	
		
By:	 	/s/ Tony Yung	
	 	Name:	 	Tony Yung	
	 	Title:	 	Executive Director	
 
Signature Page to Amendment

					
BARCLAYS BANK PLC	
		
By:	 	/s/ Gregory Fishbein	
	 	Name:	 	Gregory Fishbein	
	 	Title:	 	Assistant Vice President	
 
Signature Page to Amendment

					
CITIBANK, N.A.	
		
By:	 	/s/ Avrun Spiegel	
	 	Name:	 	Avrun Spiegel	
	 	Title:	 	Vice President	
 
Signature Page to Amendment

					
SILICON VALLEY BANK	
		
By:	 	/s/ Alina Zinchik	
	 	Name:	 	Alina Zinchik	
	 	Title:	 	Vice President	
 
Signature Page to Amendment

					
U.S. BANK	
		
By:	 	/s/ Matthew D. Murray	
	 	Name:	 	Matthew D. Murray	
	 	Title:	 	Vice President	
 
Signature Page to Amendment

EXHIBIT A
Schedules to Credit Agreement
 
 	Schedule 3.05	Properties	
Please refer to the e.Digital litigation and HDMI Licensing matters referred to in Schedule 3.6 below.
 
 	Schedule 3.06	Litigation	
 
 	•	 	Dean Woodman, a stockholder of the Company, asserted in correspondence with the Company during 2012 that the Company and its Chief Executive Officer had defamed him by not appropriately crediting his contributions to the Company and that the grant of certain stock options to Company employees allegedly constituted corporate waste and a breach of fiduciary duty. Following mediation, the potential claims were resolved and no lawsuit was filed.	
 
 	•	 	On December 5, 2012, e.Digital Corporation (“ e.Digital ”) filed a lawsuit captioned e.Digital Corporation v. Woodman Labs, Inc. dba GoPro, et al. , case No. 3:12-cv-02899 in the United States District Court for the Southern District of California (“ the e.Digital litigation ”). The original complaint in the e.Digital litigation alleges infringement of United States Patent No. 5,742,737 (“ the ’737 patent ”) by the Company’s products including at least Hero, Hero2, and Hero3 series camcorders. The ’737 patent is entitled “Method for Recording Voice Messages on Flash Memory In A Hand Held Recorder.” The Company accepted indemnity and assumed the defense of the four authorized retailers (Target Corporation, Sport Chalet, Inc., Quicksilver, Inc., and Recreational Equipment, Inc. dba REI) and secured their dismissal in exchange for permitting e.Digital to file a First Amended Complaint (FAC) adding allegations of infringement of 5,491,774 (“ the ‘774 patent ”) by the Company. e.Digital also dismissed its claims against the fifth retailer, Buy.com, Inc. The Company has answered the FAC, denied infringement, and asserted invalidity, as well as other defenses. After a ruling by the court that e.Digital was collaterally estopped from re-litigating the claim construction of the ‘774 patent in light of an earlier lawsuit against unrelated parties, the parties entered into a stipulated judgment of noninfringement as to the ‘774 patent. Discovery and claim construction proceeding as to the ‘737 patent are ongoing.	
 
 	•	 	In March of 2013, HDMI Licensing, LLC (“ HDMI Licensing ”), a conglomerate based in Sunnyvale, California founded by Hitachi, Panasonic Corporation, Royal Philips Electronics, Silicon Image, Sony Corporation, Technicolor S.A. (formerly known as Thomson) and Toshiba Corporation, contacted the Company claiming that the Company was infringing HDMI Licensing’s “HDMI” trademark. HDMI Licensing is the licensing agent responsible for administering the licensing of the HDMI specification (a technology package which enables high definition audio and video signals to pass through a single cable) and promoting HDMI technology to manufacturers and retailers. HDMI Licensing controls a portfolio of HDMI marks and its technology specification by	

 	requiring that entities using the HDMI marks and/or technology specification become an “HDMI Adopter” by way of an HDMI Adopter Agreement. HDMI Licensing claimed that the standard character letters “HDMI,” used by the Company to indicate that its GoPro-branded cameras can be connected with HDMI compatible cables to HDMI compatible devices, is a trademark of HDMI Licensing and cannot be used unless (1) the manufacturer of the product on which the letters appear is an HDMI Adopter, (2) said products are tested and deemed compatible, and (3) royalties are accounted for and paid for all products sold by the Adopter. HDMI Licensing threatened that failure by either the Company or its overseas contract manufacturers to pay royalties and comply with proper trademark use and testing would result in legal action involving customs seizures, depriving the Company of product or delaying delivery. The Company was unaware of HDMI’s claims of infringement and deficient royalty payments against the Company’s supplier until HDMI Licensing communicated with the Company. Since May 2013, HDMI Licensing and the Company have been engaged in active settlement negotiations. To date, HDMI Licensing and the Company have come to a verbal understanding about formalizing an adopter relationship directly between HDMI Licensing and the Company and addressing the unpaid royalties claim by paying a discounted sum. Concluding a formal settlement is expected shortly.	
 
 	Schedule 3.14	Subsidiaries	
(a)

Name	  	Jurisdiction	  	Owners of Equity Interests	
Cineform, Inc.	  	Delaware	  	Woodman Labs, Inc.: 100%	
			
Woodman Labs Hong Kong Limited	  	Hong Kong	  	Woodman Labs Cayman, Inc.: 100%	
			
Woodman Labs Cayman, Inc.	  	Cayman Islands	  	Woodman Labs, Inc.: 100%	
			
Woodman Labs GmbH	  	Germany	  	Woodman Labs Hong Kong Ltd. 100%	
			
GT 2 Acquisition Sub LLC	  	Delaware	  	Woodman Labs, Inc.: 100%	
***

EXHIBIT B
Schedules to Security Agreement
Schedule 3.2
(a)(i)
The legal names of the Grantors are:
 
 	•	 	Woodman Labs, Inc.	
 
 	•	 	Cineform, Inc.	
 
 	•	 	GT 2 Acquisition Sub LLC	
(a)(ii)
The state of incorporation for each of the Grantors is Delaware.
(a)(iii)
The addresses of the chief executive offices for the Grantors are as follows:

Woodman Labs, Inc.
3000 Clearview Way, Building E
San Mateo, CA 4402
 	
Cineform Inc.
131 Aberdeen Dr. Suite 100
Cardiff-By-The-Sea, CA 92007
 	
GT 2 Acquisition Sub LLC
1161 Mission Street, Suite 400
San Francisco, CA 94103	
The other places of business of the Grantors are as follows:

2450 South Cabrillo Highway, Ste 250
Half Moon Bay, CA 94019
 	
131 Aberdeen Drive, Suite #100
Cardiff By The Sea, CA 92007	

The Collateral is located at the following locations:

3000 Clearview Way, Building E
San Mateo, CA 94402
San Mateo County
 	
131 Aberdeen Dr. Suite 100
Cardiff-By-The-Sea, CA 92007
San Diego County
 	
2450 South Cabrillo Highway, Ste 250
Half Moon Bay, CA 94019
 	
No. 25 Wu-Gong 6th Rd.
Wu Ku, Industrial Park
New Taipei City, R.O.C.
 	
Sky Light Digital Limited
No. 6 Building, Jinbi Industrial Area
Huangtian, Baoan
Shenzhen Guangdong Province
518128 China
 	
Laan van de Leeuw 4
7324 BD Apeldoorn
P.O. Box 501, 7300 AM
Apeldoorn The Netherlands
 	
ModusLink Corporation
2111 Eastridge Avenue
Riverside, CA 92507
 	
DisCopyLabs, Inc. (DCL)
4455 E. Philadelphia Street
Ontario CA 91761
 	
DTK Discturnkey Solution Co. LTD
No 6 Hongmuan Rd
Futian Free Trade Zone
Shenzhen R.O.C.
 	
Sea-Air Logistics (HK) Ltd
“J” Warehouse, No. 1-7 Sai Tso Wan Road
Yiu Lian Dockyard
YTsing Yi Island Hong Kong	

	
1161 Mission Street, Suite 400
San Francisco, CA 94103
 	
2 Davis Drive, Unit #1
Belmont, CA 94002	
Schedule 3.3
None.
Schedule 3.5

Name	  	Jurisdiction	  	Owners of Equity Interests	
Woodman Labs Cayman, Inc.	  	Cayman Islands	  	Woodman Labs, Inc.: 100%	
Schedule 3.6

Bank Name	  	Account Number	  	Branch Address	  	Account Holder	
Wells Fargo Bank, N.A.	  	2118396759	  	132 San Mateo Road Half
Moon Bay, Ca 94019	  	Woodman Labs, Inc.	
				
Wells Fargo Bank, N.A.	  	3343462176	  	132 San Mateo Road Half
Moon Bay, Ca 94019	  	Woodman Labs, Inc.	
				
Wells Fargo Bank, N.A.	  	7784484680	  	132 San Mateo Road Half
Moon Bay, Ca 94019	  	Woodman Labs, Inc.	
				
Wells Fargo Bank, N.A. (Hong Kong Branch)	  	18-550977-2105	  	7/F, Citiplaza Four
12 Taikoo Wan Road
Taikoo Shing, Island East Hong Kong	  	Woodman Labs, Inc.	
				
JPMorgan Chase Bank, N.A.	  	496560462	  	Northeast Market
PO Box 659754
San Antonio, TX 78265-9754	  	Woodman Labs, Inc.	
				
JPMorgan Chase Bank, N.A.	  	496560470	  	Northeast Market
PO Box 659754
San Antonio, TX 78265-9754	  	Woodman Labs, Inc.	
				
JPMorgan Chase Bank, N.A.	  	496560488	  	Northeast Market
PO Box 659754
San Antonio, TX 78265-9754	  	Woodman Labs, Inc.	
				
First Republic Bank	  	80001397562	  	One Embarcadero Center San Francisco, CA 94111	  	GT 2 Acquisition Sub LLC	

Schedule 3.12
Issued Patents and Applications therefor :
See Annex 1.
Registered Trademarks and Applications therefor :
See Annex 2.
***

Exhibit 21.01
SUBSIDIARIES

Name of Subsidiary	  	Jurisdiction of Incorporation or Organization	
Woodman Labs Hong Kong Limited	  	Hong Kong	

Exhibit 23.02
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the use in this Registration Statement on Form S-1 of GoPro, Inc. of our report dated March 14, 2014 relating to the financial statements of GoPro, Inc., which appears in such Registration Statement. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
San Jose, California
May 19, 2014