Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of this 20th day of
November, 2000 by and among Hittite Microwave Corporation, a Delaware
corporation (together with any successor thereto, the "COMPANY"), Xx. Xxxxxx
Xxxxxx (the "FOUNDER") and the Persons listed under the heading "Investors" on
the signature pages hereto (each, an "INVESTOR" and collectively, the
"INVESTORS").
WHEREAS, the Company, the Founder and the Investors are simultaneously
entering into a certain Stock Purchase Agreement, dated as of the date hereof
(the "PURCHASE AGREEMENT"), pursuant to which the Investors have agreed to
purchase shares of Series A Convertible Preferred Stock, par value $.01 per
share (the "SERIES A PREFERRED STOCK"), from the Company in accordance with the
terms and conditions contained, therein; and
WHEREAS, the execution of this Agreement is a condition precedent to
the purchase by the Investors of the Series A Preferred Stock under the Purchase
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the respective meanings set forth below:
"AFFILIATE" of any Person means a Person that, directly or indirectly,
through one or more intermediaries, controls, is controlled by or is under
common control with the first mentioned Person. A Person shall be deemed to
control another Person if such first Person possesses directly or indirectly the
power to direct, or cause the direction of, the management and policies of the
second Person, whether through the ownership of voting securities, by contract
or otherwise.
"COMMISSION" shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act and the Exchange Act.
"COMMON STOCK" shall mean (i) the Company's Common Stock, par value
$.01 per share, and (ii) any other securities into which or for which any of
the securities described in clause (i) above may be converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger, sale of
assets of otherwise.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time, or any similar successor federal statute, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"FOUNDER REGISTRABLE SECURITIES" shall mean (i) any shares of Common
Stock now held, or hereafter acquired, by the Founder and (ii) any other
securities issued and issuable with respect to any such shares described in
clause (i) above by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization (it being understood that for purposes of this Agreement, the
Founder will be deemed to be a holder of Founder Registrable Securities whenever
the Founder has the right to then acquire or obtain from the Company any Founder
Registrable Securities, whether or not
such acquisition has actually been effected); PROVIDED, HOWEVER, that
notwithstanding anything to the contrary contained herein, "REGISTRABLE
SECURITIES" shall not at any time include any securities (i) sold pursuant to an
effective registration statement under the Securities Act, (ii) sold to the
public pursuant to Rule 144 promulgated under the Securities Act or (iii)
eligible for resale by the Founder without volume limitations under subsection
(k) of Rule 144 promulgated under the Securities Act.
"HOLDER" shall mean any Person owning, or having the right to receive,
Registrable Securities, and any assignee thereof in accordance with Section 7
hereof.
"PERSON" shall mean any individual, association, corporation,
partnership, limited liability company, joint venture, estate, trust, or
unincorporated organization or any government or any agency or political
subdivision thereof.
"REGISTRABLE SECURITIES" shall mean (i) any shares of Common Stock now
held, or hereafter acquired, by the Investors, (ii) the shares of Common Stock
or shares of any other securities issued and issuable upon conversion of the
Series A Preferred Stock and (iii) any other securities issued and issuable with
respect to any such shares described in clauses (i) and (ii) above by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization (it being
understood that for purposes of this Agreement, a Person will be deemed to be a
holder of Registrable Securities whenever such Person has the right to then
acquire or obtain from the Company any Registrable Securities, whether or not
such acquisition has actually been effected); PROVIDED, HOWEVER, that
notwithstanding anything to the contrary contained herein, "Registrable
Securities" shall not at any time include any securities (i) sold pursuant to an
effective registration statement under the Securities Act, (ii) sold to the
public pursuant to Rule 144 promulgated under the Securities Act or (iii)
eligible for resale by a Person without volume limitations under subsection (k)
of Rule 144 promulgated under the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time, or any similar successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
2. PIGGYBACK REGISTRATIONS. If at any time or times after the date
hereof the Company shall seek to file a registration statement under the
Securities Act with respect to an offering of shares of Common Stock to the
public for its own account or on the account of others (except with respect to
registration statements on Form X-0, X-0 or another form not available for
registering the Registrable Securities for sale to the public), the Company will
promptly give written notice thereof to each of the Holders and the Founder. If
within twenty (20) days after their receipt of such notice one or more Holders
and/or the Founder request the inclusion of some or all of the Registrable
Securities and/or Founder Registrable Securities owned by them in such
registration statement, the Company will use its best efforts to include such
Registrable Securities and/or Founder Registrable Securities in such
registration statement. In the case of any underwritten public offering, if the
managing underwriter determines that marketing factors require a limitation on
the number of Registrable Securities or Founder Registrable Securities to be
offered under such registration statement, subject to the following sentence,
the Company shall not be required to include in such registration statement
Registrable Securities or Founder
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Registrable Securities in excess of the amount, if any, of shares of the capital
stock which the managing underwriter of such underwritten offering shall
reasonably and in good faith agree to include in such offering in addition to
any amount to be registered for the account of the Company. If any limitation of
the number of shares of Registrable Securities or Founder Registrable Securities
sought to be registered by the Holders or the Founder is required pursuant to
this Section 2, the number of such securities to be excluded shall be determined
in the following sequence: (i) first, securities held by any Persons not having
any such contractual, incidental "piggyback" registration rights, (ii) second,
securities held by any Persons (other than the Holders and the Founder) having
such contractual, incidental "piggyback" rights pursuant to an agreement which
is not this Agreement, and (iii) third, Founder Registrable Securities and
Registrable Securities sought to be included by the Founder and the Holders as
determined on a pro rata basis (based upon the respective holdings of Founder
Registrable Securities and Registrable Securities); provided that the Founder
shall not be permitted to include more shares than the Holders may include as a
group if it would result in a reduction in the aggregate number of shares sought
to be included by the Holders as a group in such registration.
3. REQUIRED REGISTRATIONS.
(a) DEMAND REGISTRATION. Upon the earlier of (i) two (2) years
from the date hereof or (ii) the date that is six (6) months after the initial
public offering of Common Stock by the Company pursuant to an effective
registration statement under the Securities Act, on not more than two (2)
occasions, the Holders of the Registrable Securities may request that the
Company register under the Securities Act all or a portion of the Registrable
Securities held by such requesting Holders having an aggregate value of at least
$10,000,000 (based on the then current market price). A registration will not
count as a requested registration under this Section 3(a) until the registration
statement relating to such registration has been declared effective by the
Commission at the request of the requesting Holders; PROVIDED, that if a
requested registration is withdrawn by the initiating Holders and such Holders
elect not to pay the registration expenses therefor, then such requested
registration will count as a requested registration under this Section 3(a).
(b) FORM S-3. After the Company's initial public offering of
Common Stock registered under the Securities Act, the Company shall use its best
efforts to qualify and remain qualified to register securities on Form S-3 (or
any successor form) under the Securities Act. So long as the Company is
qualified to register securities on Form S-3 (or any successor form), the
Holders of Registrable Securities shall have the right to request registration
on Form S-3 (or any successor form) for the Registrable Securities held by such
requesting Holders having an aggregate value of at least $1,000,000 (based on
the then current market price), including registrations for the sale of such
Registrable Securities on a delayed or continuous basis pursuant to Rule 415
under the Securities Act. Such requests shall be in writing and shall state the
number of shares of Registrable Securities to be disposed of and the intended
method of disposition of such shares by such requesting holders.
(c) REGISTRATION REQUIREMENTS. Following a request for
registration pursuant to this Section 3, the Company will notify all of the
other Holders of such request and such Holders shall then have twenty (20) days
to notify the Company of their desire to participate in the registration.
Thereupon, the Company will use its best efforts to cause such of the
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Registrable Securities as may be requested by such Holders to be registered
under the Securities Act in accordance with the terms of this Section 3. If the
request for registration contemplates an underwritten public offering, the
Company shall state as such in the written notice and in such event the right of
any Person to participate in such registration shall be conditioned upon their
participation in such underwritten public offering and the inclusion of their
securities in the underwritten public offering to the extent provided herein.
(d) UNDERWRITTEN OFFERING. If a requested registration
pursuant to this Section 3 involves an underwritten public offering and the
managing underwriter of such offering determines in good faith that the number
of securities sought to be offered should be limited due to market conditions,
then the number of securities to be included in such underwritten public
offering shall be reduced to a number deemed satisfactory by such managing
underwriter, provided that the shares to be excluded shall be determined in the
following sequence: (i) first, securities held by any Persons not having any
contractual, incidental "piggy back" registration rights to include such
securities on the registration statement, (ii) second, securities held by any
other Persons (other than the Holders) having contractual, incidental "piggy
back" rights to include such securities in the registration statement, (iii)
third, Registrable Securities of Holders who did not make the original request
for registration and (iv) fourth, Registrable Securities of Holders who
requested such registration. If there is a reduction of the number of
Registrable Securities pursuant to clauses (iii) or (iv), such reduction shall
be made on a pro rata basis (based upon the respective holdings of Registrable
Securities held by such Holders). With respect to a request for registration
pursuant to this Section 3 which is for an underwritten public offering, the
managing underwriter shall be chosen by a majority-in-interest of the Holders
requesting such registration subject to the approval of the Company, which
approval will not be unreasonably withheld. If the managing underwriter has not
limited the number of Registrable Securities or other securities to be
underwritten, the Company may include securities for its own account in such
registration if the managing underwriter so agrees and if the number of
Registrable Securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
(e) POSTPONEMENT. The Company may postpone the filing of any
registration statement required hereunder for a reasonable period of time, not
to exceed ninety (90) days in the aggregate during any twelve-month period, if
the Company's Board of Directors determines reasonably and in good faith that it
would be seriously detrimental to the Company and its stockholders for such
registration to be effected at such time. The Company shall not be required to
cause a registration statement requested pursuant to this Section 3 to be filed
prior to the 180th day following the effective date of a registration statement
on Form S-1 (or the 90th date in the case of a registration statement on Form
S-3) initiated by the Company if the request for registration has been received
by the Company subsequent to the giving of written notice by the Company, made
in good faith, to Holders entitled to request demand registrations under this
Section 3 that the Company is commencing to prepare a Company-initiated
registration statement (other than a registration effected solely to implement
an employee benefit plan or a transaction to which Rule 145 or any other similar
rule under the Securities Act is applicable); PROVIDED, HOWEVER, that the
Company shall use its best efforts to achieve such effectiveness promptly
following such period.
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4. FURTHER OBLIGATIONS OF THE COMPANY. Whenever the Company is
required hereunder to include any Registrable Securities in a registration
statement under the Securities Act, it agrees that it shall also do the
following;
(a) Pay all expenses of such registrations and offerings
(exclusive of underwriting discounts and commissions) and the reasonable fees
and expenses of not more than one counsel for the Holders in connection with any
registrations pursuant to Sections 2 or 3 hereof; PROVIDED, HOWEVER, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun under Section 3(a) if the registration request is subsequently
withdrawn at the request of the Holders (in which case all such participating
Holders shall bear such expenses), unless the Holders agree to forfeit their
right to one demand registration pursuant to Section 3(a);
(b) Use its best efforts to diligently prepare and file with
the Commission a registration statement and such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for one hundred
eighty (180) days or, if earlier, until the Holder or Holders have completed the
distribution described in the registration statement relating thereto and to
comply with the provisions of the Securities Act with respect to the sale of
securities covered by such registration statement for such period;
(c) Furnish to each selling Holder such copies of each
preliminary and final prospectus and such other documents as such Holder may
reasonably request to facilitate the public offering of its Registrable
Securities;
(d) Enter into any reasonable underwriting agreement required
by the proposed underwriter, if any, in such form and containing such terms as
are customary; PROVIDED, HOWEVER, that no Holder shall be required to make any
representations or warranties other than with respect to its title to the
Registrable Securities and with respect to any written information provided by
the Holder to the Company;
(e) Use its best efforts to register or qualify the securities
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as any selling Holder may reasonably request; provided
that the Company shall not for any such purpose be required to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified or to execute a general consent to service of process in effecting
such registration or qualification unless the Company is already subject to
service in such jurisdiction;
(f) Immediately notify each selling Holder, at any time when a
prospectus relating to his, her or its Registrable Securities is required to be
delivered under the Securities Act, of the happening of any event as a result of
which such prospectus contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein not misleading, and,
at the request of any such selling Holder, prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain, any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
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(g) Cause all such Registrable Securities to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed or quoted (or if similar securities issued by the
Company are not yet listed or quoted, then on such exchange or quotation system
as the Company shall determine);
(h) Make available to each selling Holder, any underwriter
participating in any disposition pursuant to a registration statement, and any
attorney, accountant or other agent or representative retained by any such
selling Holder or underwriter (collectively, the "INSPECTORS"), all financial
and other records, pertinent corporate documents and properties of the Company,
as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
registration statement; PROVIDED, HOWEVER, that such Inspector shall agree to
hold in confidence and trust all information so provided;
(i) Otherwise use its best efforts to comply with the
securities laws of the United States and other applicable jurisdictions and all
applicable rules and regulations of the Commission and comparable governmental
agencies in other applicable jurisdictions and make generally available to its
holders, in each case as soon as practicable, but not later than forty-five (45)
days after the close of the period covered thereby, an earnings statement of the
Company which will satisfy the provisions of Section 11(a) of the Securities
Act;
(j) In the case of an underwritten public offering, furnish to
each prospective selling Holder a signed counterpart, addressed to the
prospective selling Holder, of (A) an opinion of counsel for the Company, dated
the effective date of the registration statement, and (B) a "comfort" letter
signed by the independent public accountants who have certified the Company's
financial statements included in the registration statement, covering
substantially the same matters with respect to the registration statement (and
the prospectus included therein) and (in the case of the accountants' letter)
with respect to events subsequent to the date of the financial statements, as
customarily covered (at the time of such registration) in opinions of the
Company's counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities; and
(k) Otherwise cooperate with the underwriter or underwriters,
the Commission and other regulatory agencies and take all actions and execute
and deliver or cause to be executed and delivered all documents necessary to
effect the registration of any Registrable Securities hereunder.
Each of the Holders and the Founder requesting registration hereunder
shall furnish to the Company information regarding such Holder or Founder, the
number of Registrable Securities or Founder Registrable Securities held by such
Holder or Founder and the intended method of disposition of such securities as
shall be reasonably required under the Securities Act to effect the registration
of such Holder's Registrable Securities or Founder Registrable Securities and
such Holder or Founder shall execute such documents in connection with such
registration as the Company may reasonably request; PROVIDED, HOWEVER, that no
Holder shall be required to make any representations or warranties other than
with respect to its title to the Registrable Securities and with respect to any
written information provided by the Holder to the Company. In addition,
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any Holder who receives written notice from the Company regarding the Company's
plans to file a registration statement shall treat such notice as confidential
information and shall not disclose such information to any Person other than its
Affiliates and professional advisors and as necessary to exercise its rights
under this Agreement.
5. INDEMNIFICATION; CONTRIBUTION.
(a) Incident to any registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless each underwriter, each Holder who offers or sells any such
Registrable Securities in connection with such registration statement, including
its partners (including partners of partners and stockholders of any such
partners), and directors, officers, employees, representatives and agents of any
of them (a "SELLING HOLDER"), and each person who controls any of them within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act (a "CONTROLLING PERSON"), from and against any and all losses, claims,
damages, expenses and liabilities, joint or several (including any
investigation, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted, as the same are incurred), to which they, or any of them, may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise ("INDEMNIFIABLE
CLAIMS"), insofar as such losses, claims, damages or liabilities arise out of or
are based on (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement (including any related preliminary
or definitive prospectus, or any amendment or supplement to such registration
statement or prospectus), (ii) any omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to make the
statements in it not misleading, (iii) any violation or alleged violation by the
Company 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, (iv) any failure to register or qualify the Registrable
Securities in any state where the Company or its agents has affirmatively
undertaken or agreed in writing that the Company (the undertaking of any
underwriter chosen by the Company being attributed to the Company) will
undertake such registration or qualification on the Selling Holder's behalf
(provided that in such instance the Company shall not be so liable if it has
undertaken its best efforts to so register or qualify the Registrable
Securities), or (v) any blue sky application or other document executed by the
Company specifically for the purpose or based upon written information furnished
by the Company filed in any state or other jurisdiction in order to qualify any
or all of the Registrable Securities under the securities laws thereof;
PROVIDED, HOWEVER, that the Company will not be liable to the extent that such
loss, claim, damage, expense or liability arises from and is based on an untrue
statement or omission or alleged untrue statement of a material fact contained
in such registration statement or omission made in reliance on and in conformity
with information furnished in writing to the Company by such underwriter,
Selling Holder or Controlling Person expressly for use in such registration
statement. With respect to such untrue statement or omission or alleged untrue
statement or omission in the information furnished in writing to the Company by
such Selling Holder expressly for use in such registration statement, such
Selling Holder will indemnify and hold harmless each underwriter, the Company
(including its directors, officers, employees, representatives and agents), each
other Holder (including its partners (including partners of partners and
stockholders of such partners) and directors, officers, employees,
representatives and agents of any of them, and each Controlling Person of any of
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them), from and against any and all losses, claims, damages, expenses and
liabilities, joint or several, to which they, or any of them, may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise to the same extent provided in the
immediately preceding sentence. In no event, however, shall the liability of a
Selling Holder for indemnification under this Section 5(a) exceed the net
proceeds received by such Selling Holder from its sale of Registrable Securities
under such registration statement, except in the case of willful fraud.
(b) If the indemnification provided for in Section 5(a) above
for any reason is held by a court of competent jurisdiction to be unavailable to
an indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this Section
5, in lieu of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company, the
Selling Holders and the underwriters from the offering of the Registrable
Securities and (ii) the relative fault of the Company, the Selling Holders and
the underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, expenses or liabilities, as well as any other
relevant equitable considerations; PROVIDED, HOWEVER, that in the event of a
registration statement filed in response to a demand for registration under
Section 3(a) and in which the Company does not register any shares of capital
stock, the proportion of contribution by the Company, the Selling Holders and
the underwriters shall in all cases be governed solely by clause (ii) above. The
relative benefits received by the Company, the Selling Holders and the
underwriters shall be deemed to be in the same respective proportions that the
net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Holders and the underwriting discount received by the
underwriters, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
Registrable Securities. The relative fault of the Company, the Selling Holders
and the underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Holders or the underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5(b) were determined by pro
rata or per capita allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. In no event, however, shall a Selling Holder be required to
contribute any amount under this Section 5(b) in excess of the net proceeds
received by such Selling Holder from its sale of Registrable Securities under
such registration statement. No person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation.
(c) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Section 5 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
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such action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this Section 5 will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified parties
or any officer, director, employee, agent or controlling person of the
indemnified parties. No indemnifying party, in the defense of any such claim or
litigation, shall enter into a consent of entry of any judgment or enter into a
settlement without the consent of the indemnified party, which consent will not
be unreasonably withheld.
(d) Promptly after receipt by an indemnified party of any
Indemnifiable Claim, the indemnified party shall give notice thereof in writing
to the Company; PROVIDED, HOWEVER, the failure to give such notice shall not
relieve the Company from its obligations under this Section 5 except to the
extent that the Company shall have been materially and adversely prejudiced as a
result of the failure or delay in giving such notice. In any proceeding
involving an Indemnifiable Claim, the Company shall control the defense thereof;
provided that, the indemnified party shall have the right to retain its own
counsel at its own expense. Notwithstanding the foregoing, the Company shall pay
as incurred the fees and expenses of the counsel retained by the indemnified
party in the event that (i) the Company and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the Company
and the indemnified party and the representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them.
Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in an underwriting agreement entered
into by the Company in connection with an underwritten public offering in which
the Holders or the Founder seek to include the Registrable Securities or the
Founder Registrable Securities pursuant to Section 2 hereof are in conflict with
the foregoing provisions, the provisions of the underwriting agreement shall
control.
The Company shall not, without the prior written consent of any
indemnified party, consent to the entry of any judgment against the indemnified
party or enter into any settlement or compromise which (i) includes an admission
of fault of the indemnified party or (ii) does not include, as an unconditional
term thereof, the full release of the indemnified party from all liability in
respect of such Indemnifiable Claim, which release shall be in form and
substance reasonably satisfactory to the indemnified party.
6. RULE 144 AND RULE 144A REQUIREMENT. In the event that the Company
becomes subject to Section 13 or Section 15(d) of the Exchange Act, the Company
shall use its best efforts to take all action as may be required as a condition
to the availability of Rule 144 or Rule 144A under the Securities Act (or any
successor or similar exemptive rules hereafter in effect). The Company shall
furnish to any Holder, within fifteen (15) days of a written request, a written
statement executed by the Company as to the steps it has taken to comply with
the current public information requirement of Rule 144 or Rule 144A or such
successor rules.
7. TRANSFERABILITY OF REGISTRATION RIGHTS. The registration rights
set forth in this Agreement may only be assigned (and then only with all related
obligations) by a Holder to a transferee or assignee who (after all such
assignments and/or transfers) holds at least 100,000 shares of such Registrable
Securities (adjusted for any stock splits, stock dividends,
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combinations or other recapitalization) who shall, upon such transfer or
assignment, be deemed a "Holder" under this Agreement; PROVIDED, that the
Company is, within a reasonable period of time after such transfer, furnished
with written notice of the name and address of such transferee or assignee and
the securities with respect to which such registration rights are being
assigned; PROVIDED, FURTHER, that such assignment shall be effective only if
immediately after such transfer the further disposition of such Registrable
Securities by the transferee or assignee is restricted under the Securities Act;
and PROVIDED, FURTHER, that the limitation contained in this sentence shall not
be applicable to any assignment by the Founder to a Permitted Transferee (as
defined in that certain Stockholders Agreement dated of even date herewith by
and among the Company, the Founder and the Investors or by a Holder to an
Affiliate (an "EXEMPTED TRANSFEREE"); PROVIDED, HOWEVER, that this Agreement
shall be binding upon such Exempted Transferee and, prior to the completion of
such transfer, each Exempted Transferee or his or her or its legal
representative shall have executed documents in form and substance reasonably
satisfactory to the Company, assuming the obligations of the transferring Holder
or Founder under this Agreement with respect to the transferred shares. Such
transferred Registrable Securities or Founder Registrable Securities shall
remain "Registrable Securities" and "Founder Registrable Securities,"
respectively, hereunder, and references to the "Holder" and "Founder" hereunder
shall be deemed thereafter to apply to and include the transferee of any
Registrable Securities or Founder Registrable Securities, respectively.
8. RIGHTS WHICH MAY BE GRANTED TO SUBSEQUENT INVESTORS. Other than
transferees of Registrable Securities under Section 7 hereof, the Company shall
not, without the prior written consent of the holders of a majority of the
outstanding Registrable Securities, grant any other registration rights to any
third parties which conflict with or are senior to or on parity with the rights
of the Holders hereunder, other than registration rights on parity with the
rights of the Holders hereunder granted to holders of preferred stock of the
Company having rights on a PARI PASSU basis with the Series A Preferred Stock as
to dividends or redemptions or with respect to the distribution of assets or
other amounts in connection with a Liquidation Event or an Extraordinary
Transaction (as such terms are defined in the Company's Amended and Rested
Certificate of Incorporation).
9. MISCELLANEOUS.
(a) AMENDMENTS. For the purposes of this Agreement and all
agreements executed pursuant hereto, no course of dealing between or among any
of the parties hereto and no delay on the part of any party hereto in exercising
any rights hereunder or thereunder shall operate as a waiver of the rights
hereof and thereof. This Agreement may not be amended or modified or any
provision hereof waived without the joint written consent of the Company and the
holders of not less than a majority of the outstanding Registrable Securities.
(b) NOTICES AND DEMANDS. Any notice or demand which, by any
provision of this Agreement or any agreement, document or instrument executed
pursuant hereto or thereto, except as otherwise provided therein, is required to
be given shall be deemed to have been sufficiently given or served and received
for all purposes when delivered by hand, telecopy, telex or other method of
facsimile or five (5) days after being sent by certified or registered mail,
postage and charges prepaid, return receipt requested, or two (2) days after
being sent by overnight delivery providing receipt of delivery, to the following
addresses:
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(i) if to the Company:
Hittite Microwave Corporation
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xx. Xxxxxx Xxxxxx
or at such other address designated by the Company to the Investors in writing
with a copy to:
Xxxxxx, Xxxx & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx III, P.C.
(ii) if to the Founder:
Xx. Xxxxxx Xxxxxx
0 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
or at such other address designated by the Founder to the other parties hereto
in writing.
(iii) If to the Investors:
c/o Summit Partners
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
or at such other address designated by an Investor to the Company in writing,
with a copy to:
XxXxxxxxx, Will & Xxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxx III, P.C.
(c) DISPUTE RESOLUTION.
(i) All disputes, claims, or controversies arising
out of or relating to this Agreement or any other agreement executed and
delivered pursuant to this Agreement or the negotiation, validity or performance
hereof and thereof or the transactions contemplated hereby
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and thereby that are not resolved by mutual agreement shall be resolved solely
and exclusively by binding arbitration to be conducted before the American
Arbitration Association ("AAA"). If AAA ceases operation, then the parties shall
select a comparable organization that provides qualified arbitration services.
The arbitration shall be held in Boston, Massachusetts before a single
arbitrator and shall be conducted in accordance with the rules and regulations
promulgated by AAA unless specifically modified herein.
The parties covenant and agree that the arbitration hearing shall
commence ninety (90) days after the date on which a written demand for
arbitration is filed by any party hereto. In connection with the arbitration
proceeding, the arbitrator shall have the power to order the production of
documents by each party and any third-party witnesses. In addition, each party
may take up to three (3) depositions as of right, and the arbitrator may in his
or her discretion allow additional depositions upon good cause shown by the
moving party. However, the arbitrator shall not have the power to order the
answering of interrogatories or the response to requests for admission. In
connection with any arbitration, each party shall provide to the other, no later
than seven (7) business days before the date of the arbitration hearing, the
identity of all persons that may testify at the arbitration and a copy of all
documents that may be introduced at the arbitration hearing or considered or
used by a party's witness or expert. The arbitrator's decision and award shall
be made and delivered within three (3) months of the selection of the
arbitrator. The arbitrator's decision shall set forth a reasoned basis for any
finding of liability or award of damages. The arbitrator shall not have power to
award damages in excess of actual compensatory damages and shall not multiply
actual damages or award punitive damages or any other damages that are
specifically excluded under this Agreement, and each party hereby irrevocably
waives any claim to such damages.
The parties covenant and agree that they will participate in the
arbitration in good faith and that they will share equally its costs, except as
otherwise provided herein. The arbitrator may in his or her discretion assess
fees and costs (including the reasonable legal fees and expenses of the
prevailing party whether claimant or respondent) against any party to a
proceeding. Any party failing or refusing to comply with an order of the
arbitrators shall be liable for costs and expenses, including attorneys' fees,
incurred by the other party in enforcing the award. Nothing in this Section 9(c)
shall prohibit any party from proceeding in court without prior arbitration for
the limited purpose of seeking injunctive relief to avoid immediate and
irreparable harm. The provisions of this Section 9(c) shall be enforceable in
any court of competent jurisdiction.
(ii) Each of the parties hereto irrevocably and
unconditionally consents to the exclusive use of AAA to resolve all disputes,
claims or controversies arising out of or relating to this Agreement or any
other agreement executed and delivered pursuant to this Agreement or the
negotiation, validity or performance hereof and thereof or the transactions
contemplated hereby and thereby and further consents to the jurisdiction of the
federal and/or state courts in The Commonwealth of Massachusetts for the
purposes of enforcing the arbitration provisions of Section 9(c) of this
Agreement. Each party further irrevocably waives any objection to proceeding
before AAA based upon lack of personal jurisdiction or to the laying of venue
and further irrevocably and unconditionally waives and agrees not to make a
claim in any court that arbitration before AAA has been brought in an
inconvenient forum. Each of the parties hereto hereby consents to service of
process by registered mail at the address to which
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notices are to be given. Each of the parties hereto agrees that its or his
submission to jurisdiction and its or his consent to service of process by mail
is made for the express benefit of the other parties hereto.
(d) REMEDIES; SEVERABILITY. Notwithstanding Section 9(c), it
is specifically understood and agreed that any breach of the provisions of this
Agreement by any person subject hereto will result in irreparable injury to the
other parties hereto, that the remedy at law alone will be an inadequate remedy
for such breach, and that, in addition to any other remedies which they may
have, such other parties may enforce their respective rights by actions for
specific performance in the federal or state courts in The Commonwealth of
Massachusetts (to the extent permitted by law). Whenever possible, each
provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be deemed prohibited or invalid under such applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
(e) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which shall
constitute but one and the same instrument. One or more counterparts of this
Agreement may be delivered via telecopier, with the intention that they shall
have the same effect as an original counterpart hereof.
(f) EFFECT OF HEADING. The Section headings herein are for
convenience only and shall not affect the construction hereof.
(g) GOVERNING LAW. This Agreement shall be deemed a contract
made under the laws of The Commonwealth of Massachusetts and together with the
rights and obligations of the parties hereunder, shall be construed under and
governed by the laws of The Commonwealth of Massachusetts, without giving effect
to its conflict of laws principles.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the respective successors and permitted
assigns of the parties hereto as contemplated herein, and any successor to the
Company by way of merger or otherwise shall specifically agree to be bound by
the terms hereof.
(i) TERM. This Agreement shall terminate on the seventh (7th)
anniversary of the initial public offering of Common Stock of the Company
pursuant to an effective registration statement under the Securities Act.
[Signature Pages Follow]
- 13 -
IN WITNESS WHEREOF, the parties hereof have caused this Registration
Rights Agreement to be duly executed as of the date first set forth above.
COMPANY:
HITTITE MICROWAVE CORPORATION
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xx. Xxxxxx Xxxxxx
FOUNDER:
/s/ Xxxxxx Xxxxxx
--------------------------------------------
Xx. Xxxxxx Xxxxxx, individually
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INVESTORS:
SUMMIT INVESTORS III, L.P.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: General Partner
SUMMIT V ADVISORS FUND, L.P.
By: Summit Partners, LLC
Its General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Member
SUMMIT V ADVISORS FUND (QP), L.P.
By: Summit Partners, LLC
Its General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Member
SUMMIT V COMPANION FUND, L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Member
- 15 -
SUMMIT VENTURES V, L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Member
- 16 -
