Exhibit 4.b.3
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REGISTRATION RIGHTS AGREEMENT
by and between
CONEXANT SYSTEMS, INC.
and
GLOBAL BUSINESS INVESTMENTS
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Dated as of February 22, 2001
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TABLE OF CONTENTS
Section 1. Definitions.......................................................1
Section 2. Piggyback Registrations...........................................3
Section 3. Registration Procedures...........................................4
Section 4. Registration Expenses.............................................7
Section 5. Indemnification...................................................7
Section 6. Information by Seller............................................10
Section 7. Delay of Registration............................................10
Section 8. Rule 144.........................................................10
Section 9. Termination of Buyer's Obligations...............................10
Section 10. Successors and Assigns...........................................11
Section 11. Amendment and Waivers............................................11
Section 12. Notices..........................................................11
Section 13. Headings.........................................................12
Section 14. Construction.....................................................12
Section 15. Entire Agreement.................................................12
Section 16. Governing Law....................................................12
Section 17. Consent to Jurisdiction..........................................13
Section 18. Counterparts.....................................................13
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of February 22, 2001 by and
among Conexant Systems, Inc., a Delaware corporation ("Buyer") and Global
Business Investments (B.V.I.) Corp., a corporation organized under the laws of
the British Virgin Islands (the "Seller").
PRELIMINARY STATEMENT
In consideration of the mutual promises made in this Agreement, the
parties, intending to become legally bound, hereby agree as follows:
Section 1. Definitions.
(a) For purposes of this Agreement, capitalized terms used but not
otherwise defined in this Agreement shall have the meanings set forth in the
Purchase Agreement (as defined below), and the following terms shall have the
meanings set forth below:
"Affiliate" means, with respect to any specified person, an
"affiliate", as defined in Rule 144 under the Securities Act, of such person.
"Agreement" means this Registration Rights Agreement, including all
Exhibits hereto, as the same may be amended, modified or supplemented from time
to time in accordance with its terms.
"Buyer" shall have the meaning set forth in the preamble to this
Agreement.
"Buyer Stock" shall have the meaning set forth in the Purchase
Agreement.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in the State of
California are authorized or obligated by law or executive order to close.
"Effectiveness Period" means the period commencing on the date of the
Closing and terminating on the date that all Registrable Shares have ceased to
be Registrable Shares.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Indemnified Party" shall have the meaning set forth in Section 5(c) of
this Agreement.
"Indemnifying Party" shall have the meaning set forth in Section 5(c)
of this Agreement.
"Notice and Questionnaire" means a written notice delivered to Buyer
containing substantially the information called for by Seller's Notice and
Questionnaire attached as Exhibit A to this Agreement.
"Piggyback Registration" shall have the meaning set forth in Section
2(a) hereof of this Agreement.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
prospectus.
"Purchase Agreement" means the Securities Purchase Agreement dated as
of February 22, 2001 by and between Buyer, the Security Holders of HyperXS
Communications, Inc. and HyperXS Communications, Inc.
The terms "register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Shares" means up to 300,000 shares of Buyer Stock issued
or issuable pursuant to Sections 2.2 and 2.4 of the Purchase Agreement and any
and all securities issued or issuable with respect to such shares of Buyer Stock
upon any stock split or stock dividend or into which such shares of Buyer Stock
have been or may be converted or exchanged in connection with any merger,
consolidation, recapitalization or similar event until, in the case of any such
security, (A) the earliest of (i) its effective registration under the
Securities Act and resale in accordance with the registration statement covering
it, (ii) the expiration of the holding period that would be applicable thereto
under Rule 144(k) were it not held by an Affiliate of Buyer or (iii) its sale to
the public pursuant to Rule 144, and (B) as a result of the event or
circumstance described in any of the foregoing clauses (i) through (iii), the
legend with respect to transfer restrictions required under the Purchase
Agreement is removed or removable in accordance with the terms of the Purchase
Agreement or such legend, as the case may be.
"Registration Statement" means any registration statement prepared and
filed with the SEC pursuant to a Piggyback Registration.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
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"Seller" shall have the meaning set forth in the preamble.
"Suspension Period" shall have the meaning set forth in Section 3(e) of
this Agreement.
(b) The definitions in Section 1 shall apply equally to both 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 words "herein", "hereof" and
"hereunder" and words of similar import refer to this Agreement in its entirety
and not to any part hereof unless the context shall otherwise require. All
references herein to Sections and Exhibits shall be deemed references to
Sections of and Exhibits to this Agreement unless the context shall otherwise
require. Unless the context shall otherwise require, any references to any
agreement or other instrument or statute or regulation are to it as amended and
supplemented from time to time (and, in the case of a statute or regulation, to
any successor provisions). Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. Any
reference in this Agreement to a "day" or a number of "days" (without explicit
reference to "Business Days") shall be interpreted as a reference to a calendar
day or number of calendar days. If any action is to be taken or given on or by a
particular calendar day, and such calendar day is not a Business Day, then such
action may be deferred until the next Business Day.
Section 2. Piggyback Registrations.
(a) Right to Piggyback. Whenever, during the period commencing on the
date of the Closing and terminating on the earlier of the date (i) the
Registrable Shares covered thereby have been sold pursuant to a Registration
Statement, or (ii) by which Seller may sell all of its Registrable Shares
covered thereby under Rule 144, Buyer proposes to register under the Securities
Act on behalf of any of its shareowners any shares of Buyer Stock (except for
the registration of securities to be offered pursuant to an employee benefit
plan on Form S-8 or pursuant to a registration made on Form S-4 or any successor
forms then in effect) and the registration form to be used may be used for the
registration of the Registrable Shares (a "Piggyback Registration"), Buyer will
so notify Seller in writing no later than 30 days prior to the filing date of a
registration statement in connection therewith. The notice shall offer to
include in such filing the amount of Registrable Shares as Seller may request.
Seller shall (i) advise Buyer in writing within 15 days after the date of
receipt of such offer from Buyer, setting forth the number of Registrable Shares
for which registration is requested, and (ii) deliver to Buyer a letter from
counsel to Seller to the effect that registration under the Securities Act is or
may be required for the sale of such Registrable Shares. If at any time after
giving any such written notice of its intention to effect any registration of
securities and prior to the effective date of the Registration Statement filed
in connection with such registration, Buyer shall determine
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for any reason not to register any securities which gave rise to the Piggyback
Registration, Buyer may, in its sole discretion, give written notice of such
determination to Seller and thereupon it shall be relieved of its obligation to
register any Registrable Shares in connection with such registration. If the
offering subject to any notice given pursuant to this Section 2(a) is to be
underwritten, Seller shall sell the Registrable Shares to be included in the
registration to or through the underwriter or underwriters of the securities
being registered upon terms generally comparable to the terms applicable to
others, and if any underwriter or underwriters reasonably determine that the
number of shares included in the Registration Statement is more than can be sold
in an orderly fashion, then the number of shares which Seller and any other
holders of Buyer Stock having piggyback registration rights will be permitted to
include in such registration statement will be reduced pro rata in proportion to
the number of shares proposed to be included in such registration by Seller and
any other holders having piggyback registration rights to an amount reasonably
acceptable to the underwriter or underwriters.
(b) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, Buyer will select the investment banker(s) and manager(s)
that will administer the offering and Buyer and Seller shall enter into a
customary underwriting agreement with such investment banker(s) and manager(s).
Section 3. Registration Procedures.
(a) Obligations of Buyer. Whenever Buyer effects the registration of
Registrable Shares under the Securities Act pursuant to Sections 2 and 3 hereof,
Buyer shall:
(1) Prepare and file (or cause to be filed) with the SEC a Registration
Statement on Form S-3 (or any applicable successor form) with respect to the
applicable Registrable Shares and use its reasonable efforts to cause the
Registration Statement to become effective;
(2) Prepare and file with the SEC such amendments to the Registration
Statement and amendments or supplements to the Prospectus contained therein as
may be necessary to keep such Registration Statement effective and such
Registration Statement and Prospectus accurate and complete for the
Effectiveness Period;
(3) Furnish to Seller copies of the Registration Statement, any
preliminary or final Prospectus, any amendment or supplement to any of the
foregoing and such other documents as Seller may reasonably request in order to
facilitate the public offering of the Registrable Shares;
(4) Use its reasonable efforts to register or qualify the Registrable
Shares covered by the Registration Statement and to maintain such registration
or qualification under such state securities or blue sky laws as Seller shall
reasonably request and do any and all other reasonable acts and things that may
be necessary or advisable
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to enable Seller to consummate the disposition of the Registrable Shares in such
jurisdiction, except that Buyer shall not for any purpose be required to execute
a general consent to service of process or to qualify to do business as a
foreign corporation in any jurisdiction where it is not so qualified;
(5) Notify Seller, promptly after it shall receive notice thereof, of
the date and time when any Registration Statement and each post-effective
amendment thereto has become effective;
(6) Notify Seller promptly of any request by the SEC for the amending
or supplementing of any Registration Statement or Prospectus or for additional
information;
(7) Notify Seller, at any time when a Prospectus relating to the
Registrable Shares is required to be delivered under the Securities Act, of any
event which would cause any such Prospectus or any other Prospectus as then in
effect to include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and promptly prepare and file with the SEC, and promptly notify
Seller of the filing of, such amendments or supplements to any Registration
Statement or Prospectus as may be necessary to correct any such statements or
omissions;
(8) Notify Seller, promptly after it shall receive notice or obtain
knowledge thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of any Registration Statement or the initiation or threatening of
any proceeding for that purpose and promptly use its reasonable efforts to
prevent the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued;
(9) Use its reasonable efforts to list or qualify all Registrable
Shares covered by any Registration Statement on any securities exchange or
inter-dealer quotation system on which Buyer Stock is then listed or quoted; and
(10) Otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to Seller, as
soon as reasonably practicable, an earning statement covering the period of at
least 12 months, beginning with the first full calendar month after the
effective date of each Registration Statement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(b) Seller Information. Notwithstanding anything to the contrary
contained herein, Buyer may require that Seller, as a condition to having
Registrable Shares included in any Piggyback Registration, furnish to Buyer such
information regarding Seller and the
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contemplated distribution of its Registrable Shares as shall be required to be
included in the applicable Registration Statement, and that such information be
furnished to Buyer in writing and signed by Seller and stated to be specifically
for use in the related Registration Statement, Prospectus or other document
incident thereto.
(c) Notice to Discontinue. Seller agrees that, upon receipt of any
notice from Buyer of any event of the kind described in Section 3(a)(7) hereof,
Seller will discontinue disposition of Registrable Securities until Seller
receives copies of the supplemented or amended Prospectus contemplated by
Section 3(a)(7). In addition, if Buyer requests, Seller will deliver to Buyer
(at Buyer's expense) all copies of the Prospectus covering the Registrable
Shares current at the time of receipt of the notice.
(d) Notice by Seller. Whenever Seller has requested that any
Registrable Shares be registered pursuant to this Agreement, Seller shall notify
Buyer, at any time when a Prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event (to Seller's
knowledge and as to matters concerning Seller) as a result of which the
Prospectus included in the Registration Statement contains an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) Suspension of Registration. Notwithstanding anything to the
contrary contained herein, following the effectiveness of a Registration
Statement registering Registrable Shares, Buyer may suspend at any time the
availability of such Registration Statement and any related Prospectus upon (i)
the issuance by the SEC of a stop order with respect to such Registration
Statement or the initiation of proceedings with respect to such Registration
Statement under Section 7(d) or 8(e) of the Securities Act, (ii) the occurrence
of any event or the existence of any fact as a result of which (A) any
Registration Statement shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or (B) any Prospectus shall contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or
(iii) the occurrence or existence of any pending corporate development,
including without limitation any such development that might (A) interfere with
or affect the negotiation or completion of any material transaction or other
material event that is being contemplated by Buyer (whether or not a final
decision has been made to undertake such material transaction at the time the
right to delay is exercised), or (B) involve initial or continuing disclosure
obligations that might not be in the best interest of Buyer's shareowners, that,
in the reasonable discretion of Buyer, makes it appropriate to suspend the
availability of any Registration Statement and the related Prospectus (any
suspension of the availability of a Registration Statement and related
Prospectus upon any event described in any of subsections (i), (ii) and (iii)
above is hereinafter referred to as a "Suspension Period"); provided that the
duration of a Suspension Period under subsections (ii) and (iii) shall not
extend beyond 120 days.
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Notwithstanding the foregoing, Buyer shall be limited to no more than two
Suspension Periods under subsections (ii) and (iii) above in any rolling
12-month period. Buyer shall endeavor to end any Suspension Period as promptly
as practicable under the circumstances.
Buyer shall notify Seller in writing of the existence of a Suspension
Period. Upon receipt of any notice from Buyer of a Suspension Period, Seller
shall forthwith discontinue any disposition of Registrable Shares until Seller
(i) is advised in writing by Buyer that the use of the applicable Prospectus may
be resumed, (ii) has received copies of a supplemental or amended Prospectus, if
applicable, and (iii) has received copies of any additional or supplemental
filings which are incorporated or deemed to be incorporated by reference into
such Prospectus.
Section 4. Registration Expenses. With respect to any Piggyback
Registration effected pursuant to Section 2 hereof, all fees, costs and expenses
of and incidental to such Piggyback Registration and the public offering in
connection therewith (but excluding Buyer's internal employee and overhead
expenses) shall be borne by Seller on a pro rata basis according to the
percentage of Seller's Registrable Shares included in such Piggyback
Registration to the total number of shares registered in connection therewith,
and shall be paid by Seller to Buyer within three days after any request
therefor is made by Buyer; provided that Buyer shall pay any such fees, costs
and expenses to the extent that Seller's share thereof under this paragraph
would otherwise exceed $60,000.
Section 5. Indemnification.
(a) By Buyer. Buyer will indemnify Seller and each of its officers,
directors, stockholders, partners, employees and agents and each person
controlling Seller within the meaning of Section 15 of the Securities Act, with
respect to which registration, qualification or compliance has been effected
pursuant to this Agreement, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation (including reasonable attorneys' fees),
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any Registration Statement or Prospectus
(including, in each case, all documents incorporated by reference therein, as
such documents may have been updated by later dated documents), or any amendment
or supplement thereto, incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or any violation by Buyer of any rule or regulation promulgated under the
Securities Act applicable to Buyer and relating to action or inaction required
of Buyer in connection with any such registration, qualification or compliance;
provided, however, that Buyer will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to Buyer by Seller and stated to be specifically for use therein or by
Seller's failure to
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deliver a copy of the relevant Registration Statement or Prospectus or any
amendments or supplements thereto after Buyer has furnished that Seller or
underwriter with copies of the same. In connection with a firm or best efforts
underwritten offering, to the extent customarily required by the managing
underwriter, Buyer will indemnify the underwriters, their officers and directors
and each such person who controls the underwriters (within the meaning of
Section 15 of the Securities Act), to the extent customary in such agreements.
(b) By Seller. Seller will, if Registrable Shares held by Seller are
included in the securities as to which such registration is being effected,
indemnify Buyer, each of its directors, officers, stockholders, partners,
employees and agents and each person who controls Buyer within the meaning of
Section 15 of the Securities Act, and each of the officers, directors, partners,
employees and agents and each person controlling Seller within the meaning of
Section 15 of the Securities Act, against all claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation (including reasonable attorneys' fees),
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any Registration Statement or Prospectus, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such Registration
Statement or Prospectus, in reliance upon and in conformity with written
information furnished to Buyer by Seller and stated to be specifically for use
therein; provided, however, that the obligation to indemnify will be individual
to Seller and shall be limited to an amount equal to the net proceeds received
by Seller of Registrable Shares sold in connection with such registration. In
connection with a firm or best efforts underwritten offering, to the extent
customarily required by the managing underwriter, Seller will indemnify the
underwriters, their officers and directors and each person who controls the
underwriters (within the meaning of Section 15 of the Securities Act), to the
extent customary in such agreements; provided, however, that the obligation to
indemnify will be individual to Seller and shall be limited to an amount equal
to the net proceeds received by Seller of Registrable Shares sold in connection
with such registration.
(c) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (which approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense; provided, however, that the Indemnifying Party shall pay such
expense 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 the Indemnified Party and any other party
represented by
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such counsel in such proceeding. The failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement, except to the extent, but only to the extent,
that the Indemnifying Party's ability to defend against such claim or litigation
is impaired as a result of such failure to give notice. No Indemnifying Party in
the defense of any such claim or litigation, shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 5 is held by a
court of competent jurisdiction (by the entry of a final judgment or decree and
the expiration of time to appeal or the denial of the last right of appeal) to
be unavailable to an Indemnified Party with respect to any loss, liability,
claim, damage, or expense referred to therein, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage, or expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of the
Indemnified Party on the other in connection with the statements or omissions
that resulted in such loss, liability, claim, damage, or expense as well as any
other relevant equitable considerations. The relative fault of the Indemnifying
Party and of the Indemnified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 5(d). Notwithstanding anything herein to
the contrary, no participating holder of Registrable Shares will be required to
contribute any amount in excess of the amount by which the net proceeds received
by such participating holder from the sale of Registrable Shares pursuant to the
Registration Statement exceeds the amount of any damages that such participating
Seller has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
(f) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in any underwriting agreement entered
into in connection with an underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
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(g) The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Party or any officer, director or
controlling person of the Indemnified Party and will survive the completion of
any offering of Registrable Shares in any Registration Statement under this
Agreement.
Section 6. Information by Seller. Seller wishing to sell any
Registrable Shares in any registration shall furnish to Buyer such information
regarding Seller and the distribution proposed by Seller as Buyer may request in
writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
Section 7. Delay of Registration. Seller shall not have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of these registration rights.
Section 8. Rule 144. Buyer agrees that it will use its reasonable
efforts to file with the SEC in a timely manner all reports and other documents
required to be filed by Buyer under the Securities Act and the Exchange Act and
the rules and regulations adopted by the SEC thereunder, to the extent required
from time to time, to enable Seller to sell Registrable Shares without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144, or (ii) any similar rule or regulation hereafter
adopted by the SEC, until the earlier to occur of the date (a) the Registrable
Shares covered thereby have been sold pursuant to a Registration Statement, or
(b) by which Seller may sell all of its or his Registrable Shares covered
thereby under Rule 144(k) if Seller were not an Affiliate of Buyer. Buyer also
agrees to furnish to Seller forthwith upon request any information which Seller
may reasonably request in availing itself of Rule 144.
Section 9. Termination of Buyer's Obligations. Buyer shall have no
obligations to register or maintain any Registration Statement governing
Registrable Shares and no penalties or liquidated damages will accrue or be
payable as a result of such failure to register or maintain any Registration
Statement, (a) if all Registrable Shares have been registered and sold pursuant
to a Registration Statement effected pursuant to this Agreement, or (b) at such
time as all Registrable Shares held by Seller may be sold under Rule 144, as it
may be amended from time to time, including but not limited to amendments that
reduce that period of time that securities must be held before such securities
may be sold pursuant to such Rule.
Section 10. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto.
Section 11. Amendment and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or supplemented,
and waivers
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or consents to departure from the provisions hereof may not be given unless
agreed upon in writing by Buyer and Seller.
Section 12. Notices. All notices and other communications required or
permitted to be given by any provision of this Agreement or any other
Transaction Document shall be in writing and mailed (certified or registered
mail, postage prepaid, return receipt requested) or sent by hand or overnight
courier, or by facsimile transmission (with acknowledgment received), charges
prepaid and addressed to the intended recipient as follows, or to such other
addresses or numbers as may be specified by a party from time to time by like
notice to the other party:
(a) If to Buyer:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. X'Xxxxxx, Esq.
Senior Vice President,
General Counsel and
Secretary
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
(b) If to Seller:
Global Business Investments (B.V.I.) Corp.
Xx. 0 Xxxxxxxx Xx. III
Science-based Industrial Park
Hsinchu 300
Taiwan, R.O.C.
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Attention: Xxxx Xxx
Telecopy: 886-3-577-5541
All notices and other communications given in accordance with the provisions of
this Agreement shall be deemed to have been given and received when delivered by
hand or transmitted by facsimile (with acknowledgment received), three Business
Days after the same are sent by certified or registered mail, postage prepaid,
return receipt requested or one Business Day after the same are sent by a
reliable overnight courier service, with acknowledgment of receipt.
Section 13. Headings. The table of contents and section headings
contained in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement or affect in any way the meaning or
interpretation of this Agreement.
Section 14. Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement.
Section 15. Entire Agreement. This Agreement and the other Transaction
Documents collectively constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior negotiations,
agreements and understandings of the parties of any nature, whether oral or
written, relating thereto.
Section 16. Governing Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of California
applicable to contracts made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
Section 17. Consent to Jurisdiction.
(a) Each of the parties hereby irrevocably and unconditionally submits
to the exclusive jurisdiction of (i) the Superior Courts of the State of
California and (ii) the United States District Courts for the Central District
of California, for the purposes of any legal proceedings arising out of this
Agreement (and agrees not to commence any legal proceedings relating hereto
except in such courts). Each of the parties irrevocably and unconditionally
waives any objection to the laying of venue of any legal proceedings arising out
of this Agreement in (i) the Superior Courts of the State of California and (ii)
the United States District Courts for the Central District of California, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such legal proceedings brought in any such
court has been brought in an inconvenient forum.
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(b) EACH OF THE PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SELLER
OR BUYER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 18. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
CONEXANT SYSTEMS, INC.
By: /s/ F. Xxxxxxx Xxxxxx
-----------------------------------
F. Xxxxxxx Xxxxxx
Senior Vice President and
General Manager, Personal Computing
GLOBAL BUSINESS INVESTMENTS (B.V.I.) CORP.
By: /s/ Yimin Doo
-----------------------------------
Yimin Doo
President
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