Exhibit 10.23
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as of
November 29, 1999 by and between ANCOR COMMUNICATIONS, INCORPORATED, a Minnesota
corporation (the "Company"), and INTEL CORPORATION, a Delaware corporation
(together with its successors and permitted assigns, the "Purchaser").
WHEREAS, the Purchaser has agreed to purchase shares of the Company's
Common Stock, $.01 par value per share (the "Common Stock"), pursuant to that
certain Stock Purchase Agreement between the Company and the Purchaser dated as
of November 29, 1999 (the "Stock Purchase Agreement").
WHEREAS, in connection with such purchase, the Company and the Purchaser
desire to enter into certain arrangements with respect to the registration for
public sale under the Securities Act of 1933, as amended (the "Securities Act"),
of the Common Stock.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
hereby agree as follows:
1. Definitions.
1.1 "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
1.2 "Company" shall mean Ancor Communications, Incorporated, a
Minnesota corporation.
1.3 "Common Shares" shall mean the shares of common stock, par value
$.01 per share, authorized by the Company's Articles of Incorporation and
any additional shares of common stock which may be authorized in the future
by the Company, and any stock into which such Common Shares may hereafter
be changed.
1.4 "Public Offering" shall mean any offering of Common Shares to the
public, either on behalf of the Company or any of its security holders,
pursuant to an effective registration statement under the Securities Act.
1.5 "Purchaser" shall mean Intel Corporation, a Delaware corporation,
together with its successors and permitted assigns.
1.6 "Registrable Securities" shall mean (a) the Common Stock and (b)
any additional securities issued with respect to the above-described
securities upon any stock split, stock dividend, recapitalization, or
similar event. A portion of Registrable Securities shall cease to be
Registrable Securities when (x) a registration statement with respect to
the sale of such
portion of securities shall have been declared effective under the
Securities Act and such portion of securities shall have been disposed of
in accordance with such registration statement, (y) such portion of
securities shall be eligible to be distributed pursuant to Rule 144 under
the Securities Act in a single three-month period by the holder thereof or
(z) such portion of securities shall have ceased to be outstanding.
1.7 "Registration Expenses" shall mean the expenses described in
Section 6.
1.8 "Securities Act" shall mean the Securities Act of 1933, as
amended.
1.9 "Common Stock" shall mean the outstanding shares of common stock
of the Company, $.01 per share, purchased by Purchaser pursuant to the
Stock Purchase Agreement.
1.10 "Stock Purchase Agreement" shall meant that certain Stock
Purchase Agreement, dated as of November 29, 1999, by and between the
Company and the Purchaser relating to the purchase of Common Stock by the
Purchaser.
2. Demand Registration.
2.1 Subject to Sections 2.3, 2.4 and 2.5, if at any time after six
months has elapsed from the date of the closing of the transactions
contemplated by the Stock Purchase Agreement, the Company shall receive a
written request therefor from holder or holders of Registrable Securities,
the Company shall prepare and file a registration statement under the
Securities Act covering such number of Registrable Securities as are the
subject of such request, the minimum number of which shall not be less than
the equivalent of $1,000,000 of such securities' fair market value, and
shall use its best efforts to cause such registration statement to become
effective. Upon the receipt of a registration request meeting the
requirements of this Section 2.1, the Company shall promptly give written
notice to all other record holders of Registrable Securities that such
registration is to be effected. The Company shall include in such
registration statement such additional Registrable Securities as such other
record holders request in writing within thirty (30) days after the date of
the Company's written notice to them. If (a) the holders of a majority of
the Registrable Securities for which registration has been requested
pursuant to this Section 2.1 determines for any reason not to proceed with
the registration at any time before the related registration statement has
been declared effective by the Commission, (b) such registration statement,
if theretofore filed with the Commission, is withdrawn and (c) the holders
of the Registrable Securities subject to such registration statement agree
to bear their own Registration Expenses incurred in connection therewith
and to reimburse the Company for the Registration Expenses incurred by it
in such connection or if such registration statement, if theretofore filed
with the Commission, is withdrawn at the initiative of the Company, then
the holders of the Registrable Securities shall not be deemed to have
exercised their demand registration right pursuant to this Section 2.1.
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2.2 At the request of the holders of a majority of the Registrable
Securities to be registered, the method of disposition of all Registrable
Securities included in such registration shall be an underwritten Public
Offering. The managing underwriter of any such Public Offering shall be
selected by the Company. If in the good faith judgment of the managing
underwriter of such Public Offering, the inclusion of all of the
Registrable Securities the registration of which has been requested would
interfere with their successful marketing, the number of Registrable
Securities to be included in the underwritten Public Offering may be
reduced in the discretion of the managing underwriter pro rata, among the
requesting holders thereof in proportion to the number of Registrable
Securities included in their respective requests for registration,
provided, however, that the number of Shares of Registrable Securities
shall not be reduced unless and until the Shares to be offered by any other
holder of securities are first excluded from such registration. Registrable
Securities that are so excluded from such underwritten Public Offering
shall be withheld from sale by the holders thereof for such period, not
exceeding one hundred and twenty (120) days, as the managing underwriter
reasonably determines is necessary to effect such Public Offering.
2.3 The Company shall be obligated to prepare, file and cause to be
effective not more than two (2) registration statements pursuant to Section
2.1.
2.4 Notwithstanding the foregoing, in the event that prior to the
preparation and filing of any registration statement requested pursuant to
Section 2.1 or Section 4, there is (a) material non-public information
regarding the Company which the Board of Directors reasonably determines to
be in the best interests of the Company not to disclose or (b) a
significant business opportunity (including but not limited to the
acquisition or disposition of assets other than in the ordinary course of
business or any merger, consolidation, tender offer or other similar
transaction available to the Company which the Board of Directors
reasonably determines to be in the Company's best interests not to
disclose, the Company may delay initiating the preparation and filing of
such registration statement for a period not to exceed ninety (90) days
until such time as either of the events in clauses (a) or (b) no longer
exists; provided however, that the Company may not utilize this right under
this Section and Section 5.12 more than once in any twelve (12) month
period.
2.5 Notwithstanding anything to the contrary contained herein, at any
time within thirty (30) days after receiving a demand for registration
pursuant to Section 2.1 or Section 4, the Company may elect to effect an
underwritten primary registration in lieu of the requested registration. If
the Company so elects, the Company shall give prompt written notice to all
holders of Registrable Securities of its intention to effect such a
registration and shall afford such holders the rights contained in Section
3 with respect to "piggyback" registrations. In such event, the demand for
registration pursuant to Section 2.1 or Section 4 shall be deemed to have
been withdrawn.
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3. Piggyback Registration.
3.1 At any time from the date of the closing of the transactions
contemplated by the Stock Purchase Agreement, each time the Company shall
determine to proceed with the actual preparation and filing of a registration
statement under the Securities Act in connection with the proposed offer and
sale for money of any of its securities by it or any of its security holders
(other than a registration statement on Form X-0, Xxxx X-0 or other limited
purpose form), the Company will give written notice of its determination to all
record holders of Registrable Securities. Upon the written request of a record
holder of any Registrable Securities given within 30 days after the date of any
such notice from the Company, the Company will, except as herein provided, cause
all Registrable Securities the registration of which is requested to be included
in such registration statement, all to the extent requisite to permit the sale
or other disposition by the prospective seller or sellers of the Registrable
Securities to be so registered; provided, however, that nothing herein shall
prevent the Company from, at any time, abandoning or delaying any registration;
and provided, further, that if the Company determines not to proceed with a
registration after the registration statement has been filed with the
Commission, and the Company's decision not to proceed is primarily based upon
the anticipated Public Offering price of the securities to be sold by the
Company, the Company shall promptly complete the registration for the benefit of
those selling security holders who wish to proceed with a Public Offering of
their Registrable Securities and who agree to bear all of the Registration
Expenses incurred by the Company as the result of such registration after the
Company has decided not to proceed. Notwithstanding the foregoing, in the
discretion of the holders of the Registrable Securities to be included in the
registration (provided that such holders are the record holders of at least 51%
of the Registrable Securities), such registration may count as a demand
registration under Section 2.1 (if it otherwise meets the requirements of
Section 2.1) for which the Company will pay all Registration Expenses.
3.2 If any registration pursuant to Section 3.1 is underwritten in whole or
in part, the Company may require that the Registrable Securities included in the
registration be included in the underwriting on the same terms and conditions as
the securities otherwise being sold through the underwriters. Notwithstanding
the foregoing, in connection with such underwriting the holders shall not be
required to provide representations and warranties regarding the Company or
indemnification of the underwriters for material misstatements or omissions in
the registrations statement or prospectus for such offering other than
misstatements and omissions based on information provided by the holders in
writing specifically for use in the preparation of the registration statement.
If, in the good faith judgment of the managing underwriter of the Public
Offering, the inclusion of all of the Registrable Securities originally covered
by requests for registration would reduce the number of shares to be offered by
the Company or interfere with the successful marketing of the shares offered by
the Company, the number of Registrable Securities to be included in the Public
Offering may be reduced pro rata among the holders of the Registrable Securities
requested to be included in the registration and the holders of other securities
proposed to be included in such registration (other than securities to be issued
by the Company), provided, however, that the remaining number of Registrable
Securities held by the holders thereof to be included in the Public Offering
shall not be less than
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15% of the aggregate number of Registrable Securities requested to be included
in such registration.
4. Short Form Registration. Subject to Sections 2.4 and 2.5, in addition to
the registration rights provided in Sections 2 and 3, if the Company qualifies
for the use of Form S-3 or any similar registration form then in force, at the
request of a majority of the holders of Registrable Securities then outstanding,
at any time after six months has elapsed from the date of the closing of the
transactions contemplated by the Stock Purchase Agreement, the Company shall at
its expense file a registration statement on such form covering Registrable
Securities on behalf of such holder or holders, provided, however, that the
Company shall not be required to effect any such registration pursuant to this
Section 4 if the holders of Registrable Securities propose to sell Registrable
Securities at an aggregate price to the public of less than $1,000,000. The
holders may also require that the Company offer the Registrable Securities on a
delayed and continuous offering basis on Form S-3 or any similar registration
form then in force subject to the terms of Section 5.2 below. The Company shall
give notice to all the holders of Registrable Securities who did not join in
such request and afford them a reasonable opportunity to participate in such
registration. There shall be no limit on the number of requests for registration
pursuant to this Section 4. Registration pursuant to this Section 4 shall not be
deemed to be a demand registration as described in Section 2.
5. Registration Procedures. If and whenever the Company is required by the
provisions of Section 2, Section 3 or Section 4 to effect a registration of
Registrable Securities under the Securities Act, the Company will use reasonable
efforts to effect the registration and sale of such Registrable Securities in
accordance with the intended methods of disposition specified by the holders
participating therein. Without limiting the foregoing, the Company in each such
case will, as expeditiously as possible:
5.1 In the case of a demand registration pursuant to Section 2.1 or
Section 4, prepare and file with the Commission the requisite registration
statement to effect such registration (including such audited financial
statements as may be required by the Securities Act or the rules and
regulations thereunder) and use reasonable efforts to cause such
registration statement to become effective; provided, however, that as far
in advance as practical before filing such registration statement or any
amendment thereto, the Company will furnish counsel for the requesting
holders of Registrable Securities with copies of reasonably complete drafts
of all such documents proposed to be filed, and any such holder shall have
the opportunity to object to any information pertaining solely to such
holder that is contained therein and the Company will make the corrections
reasonably requested by such holder with respect to such information prior
to filing such registration statement or amendment. Notwithstanding the
foregoing, in the event
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that the provisions of this Section 5.1 conflict with Section 6.2 of the
Stock Purchase Agreement, the terms of Section 6.2 the Stock Purchase
Agreement shall govern.
5.2 Prepare and file with the Commission such amendments and
supplements to such registration statement and any prospectus used in
connection therewith as may be necessary to maintain the effectiveness of
such registration statement and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Securities included in such registration statement, in accordance with the
intended methods of disposition thereof, until the earlier of (a) such time
as all of the Registrable Securities included in such registration
statement have been disposed of in accordance with the intended methods of
disposition by the holder or holders thereof as set forth in such
registration statement or (b) one hundred eighty (180) days after such
registration statement becomes effective (or one (1) year after such
registration statement becomes effective in the case of a registration
statement on Form S-3 or any similar registration form then in force).
5.3 Promptly notify each requesting holder and the underwriter or
underwriters, if any:
(a) when such registration statement or any prospectus used in
connection therewith, or any amendment or supplement thereto, has been
filed and, with respect to such registration statement or any
post-effective amendment thereto, when the same has become effective;
(b) of any written request by the Commission for amendments or
supplements to such registration statement or prospectus;
(c) of any notification received by the Company from the
Commission regarding the Commission's initiation of any proceeding
with respect to, or of the issuance by the Commission of, any stop
order suspending the effectiveness of such registration statement; and
(d) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws
of any jurisdiction.
5.4 Furnish to each holder of Registrable Securities included in such
registration statement such number of conformed copies of such registration
statement and of each amendment and supplement thereto, and such number of
copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and any
other prospectus filed under Rule 424 promulgated under the Securities Act
relating to such seller's Registrable Securities, and such other documents,
as such holder may reasonably request to facilitate the disposition of its
Registrable Securities.
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5.5 Use reasonable efforts to register or qualify all Registrable
Securities included in such registration statement under the securities or
"blue sky" laws of such states as each holder of Registrable Securities
shall reasonably request within thirty (30) days following the original
filing of such registration statement and to keep such registration or
qualification in effect for so long as such registration statement remains
in effect, and take any other action which may be reasonably necessary or
advisable to enable such holder to consummate the disposition in such
states of the Registrable Securities owned by such holder, except that the
Company shall not for any such purpose be required (a) to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it
would not but for the requirements of this Section 5.5 be obligated to be
so qualified, (b) to consent to general service of process in any such
jurisdiction or (c) to subject itself to taxation in any such jurisdiction
by reason of such registration or qualification.
5.6 Use its best efforts to cause all Registrable Securities included
in such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
each holder thereof to consummate the disposition of such Registrable
Securities.
5.7 Notify each holder whose Registrable Securities are included in
such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of
any event as a result of which any prospectus included in such registration
statement, as then in effect, includes 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 the light of the circumstances
under which they were made, not misleading, and, subject to Section 5.12,
at the request of any such holder promptly prepare and furnish to such
holder a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchaser of such Registrable Securities, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
5.8 Otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission.
5.9 Use reasonable efforts to cause all Registrable Securities
included in such registration statement to be listed, upon official notice
of issuance, on any securities exchange or quotation system on which any of
the securities of the same class as the Registrable Securities are then
listed.
5.10 Furnish, at the request of any holder requesting registration of
Registrable Securities, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to
such securities becomes effective, (i) an opinion, dated as of such date,
of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to
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underwriters in an underwritten public offering and reasonably satisfactory
to the holders requesting registration, addressed to the underwriters, if
any, and to the holders requesting registration of Registrable Securities
and (ii) in the event that such securities are being sold through
underwriters, a "comfort" letter dated as of such date, from the
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the holders requesting
registration, addressed to the underwriters and to the holders requesting
registration of Registrable Securities.
5.11 In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement in usual and
customary form (including customary indemnification of the underwriters by
the Company), with the managing underwriter(s) of such offering. Each
holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement; provided, however, that it shall
not be considered customary to require any of the holders to provide
representations and warranties regarding the Company or indemnification of
the underwriters for material misstatements or omissions in the
registration statement or prospectus for such offering other than
misstatements and omissions based on information provided by the holders in
writing specifically for use in the preparation of the registration
statement.
5.12 The Company may require each holder whose Registrable Securities
are being registered to, and each such holder, as a condition to including
Registrable Securities in such registration statement, shall, furnish the
Company and the underwriters with such information and affidavits regarding
such holder and the distribution of such Registrable Securities as the
Company and the underwriters may from time to time reasonably in connection
with such registration statement. At any time during the effectiveness of
any registration statement covering Registrable Securities offered by a
holder, if such holder becomes aware of any change materially affecting the
accuracy of the information contained in such registration statement or the
prospectus (as then amended or supplemented) relating to such holder, it
will immediately notify the Company of such change.
5.13 Upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 5.7, each holder will forthwith
discontinue such holder's disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until
such holder receives the copies of the supplemented or amended prospectus
contemplated by Section 5.7 and, if so directed by the Company, shall
deliver to the Company all copies, other than permanent file copies, then
in such holder's possession of the prospectus relating to such Registrable
Securities.
5.14 Notwithstanding anything contained herein to the contrary, in the
event that, during the period of time the Company is required to maintain
the effectiveness of the registration statement relating to the Registrable
Securities there is (a) material non-public information regarding the
Company which the Board of Directors reasonably determines to be in the
best interests of the Company not to disclose or (b) a significant business
opportunity
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(including but not limited to the acquisition or disposition of assets
other than in the ordinary course of business or any merger, consolidation,
tender offer or other similar transaction available to the Company which
the Board of Directors reasonably determines to be in the Company's best
interests not to disclose, the Company may suspend the effectiveness of
such registration statement for a period not to exceed ninety (90) days
until such time as either of the events in clauses (a) or (b) no longer
exists; provided however, that the Company may not utilize this right under
this Section and Section 2.4 more than once in any twelve (12) month
period.
6. Expenses. With respect to any registration requested pursuant to Section
2 (except as otherwise provided in such Section with respect to a registration
voluntarily terminated at the request of the requesting holders of Registrable
Securities), Section 3 (except as otherwise provided in such Section with
respect to a registration continued by holders of Registrable Securities who
wish to proceed with a Public Offering that is withdrawn by the Company) or
Section 4, the Company shall bear all of the expenses ("Registration Expenses")
incident to the Company's performance of or compliance with its obligations
under this Agreement in connection with such registration including, without
limitation, all registration, filing, securities exchange listing and NASD fees,
all registration, filing, qualification and other fees and expenses or complying
with state securities or "blue sky" laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and disbursements
of counsel for the Company and of its independent public accountants, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, premiums and other costs of any
policies of insurance against liabilities arising out of the Public Offering of
the Registrable Securities being registered obtained by the Company (it being
understood that the Company shall have no obligation to obtain such insurance)
and any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities; but excluding underwriting discounts and commissions and
transfer taxes, if any, in respect of Registrable Securities and any fees and
disbursements of counsel and accountants to the holders of the Registrable
Securities, which discounts, commissions, transfer taxes, fees and disbursements
shall in any registration be payable by the holders of the Registrable
Securities being registered, pro rata in proportion to the number of Registrable
Securities being sold by them.
7. Indemnification.
7.1 The Company will, to the full extent permitted by law, indemnify
and hold harmless each holder of Registrable Securities which are included
in a registration statement pursuant to the provisions of this Agreement,
and its directors, officers, shareholders, employees, representatives and
partners and each other person, if any, who controls such holder within the
meaning of the Securities Act (collectively the "Related Entities"), from
and against any and all losses, claims, damages, expenses or liabilities,
joint or several (collectively, "Losses") to which such holder and its
Related Entities may become subject under the Securities Act or otherwise,
insofar as such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in a
registration statement prepared and filed hereunder, any preliminary,
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final or summary prospectus contained therein or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading or any violation
or alleged violation by the Company of the Securities Act, the Exchange
Act, any federal or state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any federal or
state securities law in connection with the offering covered by such
registration statement, and the Company will reimburse the holder and any
of its Related Entities for any legal or other expenses reasonably incurred
by them in connection with investigating or defending against any such
Losses (or action or proceeding in respect thereof); provided, however,
that the Company will not be liable in any such case to the extent that any
such Losses arise out of or are based upon (a) an untrue statement or
alleged untrue statement or omission or alleged omission made in conformity
with written information furnished by such holder specifically for use in
the preparation of the registration statement or (b) such holder's failure
to send or give a copy of the final prospectus to the persons asserting an
untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Securities to such person if such statement or omission was corrected in
such final prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such holder or any
of its Related Entities and shall survive the transfer of such securities
by such holder.
7.2 Each holder of Registrable Securities which are included in a
registration pursuant to the provisions of this Agreement will, to the full
extent permitted by law, indemnify and hold harmless the Company and its
Related Entities from and against any and all Losses to which the Company
and its Related Entities may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any untrue or alleged untrue statement of any material fact contained in a
registration statement prepared and filed hereunder, any preliminary, final
or summary prospectus contained therein or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in
the light of the circumstances under which they were made) not misleading,
or arise out of or are based upon any violation or alleged violation by the
holder of the Securities Act, the Exchange Act, any federal or state
securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any federal or state securities law in connection
with the offering covered by such registration statement, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission or violation was so made
in reliance upon and in strict conformity with written information
furnished by such holder specifically for use in the preparation of such
registration statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company
or any of its Related Entities. The holder of Registrable Securities
included in a registration statement shall also indemnify each other person
who participates (including as an underwriter) in the offering or sale of
Registrable Securities, their officers and directors, and partners, and
each other person, if any, who controls any such participating person
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within the meaning of the Securities Act to the same extent as provided
above with respect to the Company. The total amounts payable in indemnity
by a holder under this subsection shall not exceed in the aggregate the net
proceeds received by such holder in the registered offering which triggered
this indemnification unless such claim for indemnification is based upon
fraud committed by such holder.
7.3 Promptly after receipt by a party indemnified pursuant to the
provisions of Section 7.1 or Section 7.2 of notice of the commencement of
any action involving the subject matter of the foregoing indemnity
provisions, such indemnified party will, if a claim thereof is to be made
against the indemnifying party pursuant to the provisions of Section 7.1 or
Section 7.2, promptly notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve the indemnifying party from any liability which it may have to any
indemnified party except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is brought against any indemnified party, the indemnifying party shall have
the right to participate in, and, to the extent that it may wish, jointly
with any other indemnifying party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any action include both the indemnified
party and the indemnifying party and the indemnified party reasonably
concludes that there is a conflict of interest that would prevent counsel
for the indemnifying party from also representing the indemnified party,
the indemnified party shall have the right to select separate counsel to
participate in the defense of such action on behalf of the indemnified
party or parties with the fees and expenses of such separate counsel to be
paid by the indemnifying party. After notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party
pursuant to the provisions of Section 7.1 or Section 7.2 for any legal or
other expense subsequently incurred by such indemnified party in connection
with the defense thereof unless (a) the indemnified party shall have
employed counsel in accordance with the proviso of the preceding sentence,
(b) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after the notice of the commencement of the action
or (c) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party. If the
indemnifying party is not entitled to, or elects not to, assume the defense
of a claim, it will not be obligated to pay the fees and expenses of more
than one counsel for the indemnified parties with respect to such claim. No
indemnifying party shall 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 without the
consent of the indemnified party. No indemnifying party shall be subject to
any liability for any settlement made without its consent. An indemnified
party may at any time elect to participate in the defense of any claim or
proceeding at its own expense.
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7.4 The foregoing indemnity agreements of the Company and holders are
subject to the condition that, insofar as they relate to any violation
(indemnifiable under this Section 7) made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the SEC at
the time the registration statement in question becomes effective or the
amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the
"Final Prospectus"), such indemnity agreement shall not inure to the
benefit of any person if a copy of the Final Prospectus was timely
furnished to the indemnified party and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
7.5 The obligations of the Company and holders under this Section 7
shall survive until the fifth anniversary of the completion of any offering
of Registrable Securities in a registration statement, regardless of the
expiration of any statutes of limitation or extensions of such statutes
8. Covenants Relating to Rule 144. If at any time the Company is required
to filed reports in compliance with either Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") the Company
will (a) file reports in compliance with the Exchange Act and (b) comply with
all rules and regulations of the Commission applicable to the use of Rule 144.
9. Underwritten Offerings. If a distribution of Registrable Securities
pursuant to a registration statement is to be underwritten, the holders whose
Registrable Securities are to be distributed by such underwriters shall be
parties to such underwriting agreement. No requesting holder may participate in
such underwritten offering unless such holder agrees to sell its Registrable
Securities on the basis provided in such underwriting agreement and completes
and executes all questionnaires, powers of attorney, indemnities and other
documents reasonably required under the terms of such underwriting agreement.
Notwithstanding the foregoing, in connection with such underwriting the holders
shall not be required to provide representations and warranties regarding the
Company or indemnification of the underwriters for material misstatements or
omissions in the registrations statement or prospectus for such offering other
than misstatements and omissions based on information provided by the holders in
writing specifically for use in the preparation of the registration statement.
If any requesting holder disapproves of the terms of an underwriting, such
holder may elect to withdraw therefrom and from such registration by notice to
the Company and the managing underwriter, and each of the remaining requesting
holders shall be entitled to increase the number of Registrable Securities being
registered to the extent of the Registrable Securities so withdrawn in the
proportion which the number of Registrable Securities being registered by such
remaining requesting holder bears to the total number of Registrable Securities
being registered by all such remaining requesting holders.
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10. Amendment. This Agreement may be amended with the written consent of
the Company and the holders of more than 50% of the Registrable Securities.
Without the prior written consent of the Purchaser, the Company covenants and
agrees that it shall not grant, or cause or permit to be created, for the
benefit of any person or entity any registration rights of any kind (whether
similar to the demand, "piggyback" or Form S-3 registration rights described in
this Section 7, or otherwise) relating to shares of the Company's Common Stock
or any other securities of the Company that are pari passu or superior to the
rights granted under this Agreement.
11. Termination. This Agreement, and all of the Company's obligations
hereunder (other than its obligations pursuant to Section 7, which obligations
shall survive such termination), shall terminate upon the earlier to occur of
(a) the date on which there are no Registrable Securities outstanding; or (b)
three (3) years after the closing of the transactions contemplated by the Stock
Purchase Agreement.
12. Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant hereto may be assigned, in whole or in
part (but only with all related obligations), by a holder of Registrable
Securities to a transferee or assignee of such securities provided such
transferee agrees in writing to be bound by and subject to the terms and
conditions hereof.
* * *
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Company:
ANCOR COMMUNICATIONS,
INCORPORATED
By: /s/ Xxxxxx X Xxxxxx
-------------------------------------
Print Name: Xxxxxx X Xxxxxx
----------------------------
Title: CFO
----------------------------------
Purchaser:
INTEL CORPORATION
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Print Name: Xxxxxx Xxxxxxx
-----------------------------
Title: Vice President and Treasurer
----------------------------------
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