EXHIBIT 10.28
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as of
April 27, 2000 by and among Virata Corporation, a Delaware corporation
(the "Company"), and Xxxxxxxx Xxxxx, as Shareholders' Agent (the "Shareholders'
Agent") of the persons whose names and addresses are set forth in Schedule 1
attached hereto (each an "Investor" and together the "Investors"), for the
express benefit of such Investors.
RECITALS
WHEREAS, the Investors were each holders of shares of the capital stock of
Inverness Systems Ltd., an Israeli corporation (company no. 51-178660-0)
("Inverness");
WHEREAS, pursuant to the terms and conditions of that certain Share
Purchase Agreement, dated as of March 21, 2000 (the "Share Purchase Agreement"),
at the Closing Date (as defined in the Share Purchase Agreement) the Investors
each became holders of shares of the common stock, par value $0.001 per share,
of the Company ("Common Stock").
WHEREAS, in connection with entering into the Share Purchase Agreement, the
Company agreed to grant the Investors certain registration rights with respect
to the shares of Common Stock issued to the Investors at the Closing Date (as
defined in the Share Purchase Agreement) pursuant to the Share Purchase
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Definitions
The following terms, as used herein, shall have the following meanings:
"Commission" means the Securities and Exchange Commission.
"DInternational" means Docor International B.V., one of the Investors.
"DSt. Xxxxxxx" means Xxxxx St. Xxxxxxx, one of the Investors.
"Delayed Registrable Shares" means such portion of the 10% of the Parent
Shares issued to each of HVenture, DInternational and DSt.Xxxxxxx as are
released from escrow under the Share Purchase Indemnification Escrow Agreement,
as such term is defined in the Share Purchase Agreement.
"Effective Date" means the date on which the Closing Date has occurred.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as they each may, from time to
time, be in effect.
"HVenture" means Holland Venture B.V., one of the Investors.
"Parent Shares" means the aggregate number of shares of Common Stock
received by the Investors pursuant to the Share Purchase Agreement in exchange
for the shares of Inverness (allocated among them on a pro rata basis, based on
the number of shares held by each) that were outstanding at Closing Date.
"Rights Holders" means the Investors during such time as they hold
Registrable Shares or Delayed Registrable Shares, and any persons or entities to
whom the rights granted under this Agreement are transferred in accordance with
Section 13 hereof.
"Registrable Shares" means:
(a) In the case of any Registration Statement on Form S-1, 579,244
Parent Shares (the "S-1 Registrable Shares") and, in the case of any
Registration Statement on Form S-3, the difference between (i) 579,244
Parent Shares and (ii) the number of Parent Shares previously registered
pursuant to any Registration Statement of Form S-1 ("S-3 Registrable
Shares") and
(b) any other securities issued in respect of the shares described in
Paragraph (a) of this definition (because of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events), which securities
shall be the same type of Registrable Shares as the shares from which they
were issuable;
provided, however, that shares which are Registrable Shares or Delayed
Registrable Shares shall cease to be Registrable Shares or Delayed Registrable
Shares:
(i) upon any sale or other transfer of such shares pursuant to a
Registration Statement or Rule 144 under the Securities Act or any similar
provision then in force); or
(ii) if such shares are capable of being distributed pursuant to Rule
144(k) under the Securities Act and the Company removes all restrictive
legends on and stop transfer instructions with respect to such shares; or
(iii) upon any sale or transfer to a person or entity to which,
pursuant to Section 13 of this Agreement, the rights provided by this
Agreement are not transferable.
"Registration Statement" means a registration statement filed by the
Company with the Commission under the Securities Act for a public offering and
sale of Common Stock (other than
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a registration statement covering only securities proposed to be issued in
exchange for securities or assets of another person or entity or in connection
with an employee benefit plan).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as they each may, from time to
time, be in effect.
"S-1 Piggy Back Registration Rights" means the rights of the Rights Holders
to have their Registrable Shares registered on the terms and conditions of this
Agreement pursuant to a Registration Statement on Form S-1 (or any successor
form thereto) under the Securities Act that is filed by the Company as
contemplated in Subsection 2.01(a) of this Agreement.
"S-3 Registration Rights" means the rights of the Rights Holders to have
their Registrable Shares registered on the terms and conditions of this
Agreement pursuant to a Registration Statement on Form S-3 (or any successor
form thereto) under the Securities Act that is filed by the Company as
contemplated in Subsection 2.01(a) of this Agreement.
2. Registration Rights
2.01 If the Company proposes to file:
(a) a Registration Statement of Form S-1 for shares of Common Stock to
be issued by the Company or to be sold by any stockholder of the Company (an
"S-1 Piggyback Registration Statement") at any time during the 180-day
period commencing on the Effective Date, or
(b) a Registration Statement on Form S-3 for the registration under the
Securities Act of sales of any shares owned by any of the Company's
stockholders (an "S-3 Registration Statement") at any time during the period
from the Effective Date to the date that such Shares cease to be Registrable
Shares or Delayed Registrable Shares, (the "S-3 Registration Period"),
then, the Company will, prior to such filing, give written notice to all Rights
Holders of its intention to do so. HVenture, DInternational and DSt.Xxxxxxx
shall be deemed to have made a written request that the Company use its best
efforts to cause all Registrable Shares owned by HVenture and DInternational to
be registered under such S-1 Piggy Back Registration Statement or S-3
Registration Statement and the Company shall use its best efforts to cause all
of such Registrable Securities, as well as all Registrable Securities owned by
any other Rights Holders who give a written request for such inclusion of their
Registrable Securities within twenty (20) days after the Company provides such
notice (which request shall state the intended method of disposition of such
Registrable Shares), to be registered under such S-1 Piggy Back Registration
Statement or S-3 Registration Statement, as the case may be; provided, however,
that the Company shall have the right to postpone or withdraw any registration
effected pursuant to this subsection 2.01 without incurring any liability for
doing so to any Rights Holder. In the event the Company and its underwriters, if
any, permit all Registrable Shares eligible to be registered on Form S-1 to be
registered under an S-1 Piggy Back Registration Statement without any Cutback
(as hereinafter defined), and such Registration Statement (i) is declared
effective by the SEC by no later than the 180th day after the Effective Date and
(ii) remains effective for the Applicable Registration Period, then, the S-1
Piggy Back Registration Rights under this
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subsection 2.01 and the demand registration rights under Section 2.03 shall
terminate at the end of such time period; provided, however, that the S-3
Registration Rights shall remain in full force and effect until the end of the
S-3 Registration Period.
2.02 In connection with any registration under subsection 2.01 above
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such registration unless the holders thereof accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (provided that such terms must be consistent with
this Agreement and the terms customarily included in agreements of this nature
for underwritten public offerings). If in the opinion of the managing
underwriter it is appropriate because of marketing factors to limit the number
of Registrable Shares to be included in the offering, then the Company shall be
required to include in the registration only that number of Registrable Shares,
if any, which the managing underwriter believes should be included therein;
provided, however, that no persons or entities other than the Company, the
Rights Holders and persons or entities holding other registration rights granted
by the Company shall be permitted to include securities in the offering. If the
number of Registrable Shares to be included in the offering in accordance with
the foregoing is less than the total number of shares which the holders of
Registrable Shares have requested to be included ("Cutback"), then the holders
of Registrable Shares who have requested registration and other holders of
securities entitled to include securities in such registration shall participate
in the registration pro rata based upon their total ownership of Common Stock
(giving effect to the conversion into Common Stock of all securities convertible
thereinto). If any holder would thus be entitled to include more securities
than such holder requested to be registered, the excess shall be allocated among
other requesting holders pro rata in the manner described in the preceding
sentence. The Company shall not hereafter grant any piggy back registration
rights to any person which permit such person's shares to be included in a
registration statement when a Cutback is in effect in priority to the rights of
HVenture, DInternational and DSt. Xxxxxxx under this Agreement.
2.03 If the notice referred to in Section 2.01 is not provided by the
Company to the Rights Holders by the date which is one hundred and twenty (120)
days after the Effective Date, HVenture, DInternational and DSt.Xxxxxxx shall
be deemed to have requested that the Company effect the registration under the
Securities Act on Form S-1 (or any successor) of all of the S-1 Registrable
Shares by means of an underwriting and the Company shall promptly give written
notice of such proposed registration to all Rights Holders. All Rights Holders
shall have the right, by giving written notice to the Company within twenty (20)
days after the Company provides its notice, to elect to participate in such
registration. The right of other Rights Holders to participate shall be
conditional on such Rights Holders' participation in such underwriting proposed
by HVenture and DInternational. All Rights Holders who have elected to
participate in the registration may participate in the registration of up to the
number of S-1 Registrable Shares which they hold, subject to no Cutback.
Thereupon, the Company shall, as expeditiously as practicable, use its best
efforts to effect the registration on Form S-1 (or any successor form) of the
amount of Registrable Shares so requested to be registered.
2.04 Except as hereinafter set forth in Section 2.05 or Section 3.04, the
Company shall not be required to effect more than one (1) registration pursuant
to Section 2.03 above; provided, however, that no registration statement filed
pursuant to Section 2.03 shall count as a registration statement that satisfies
the Company's registration obligations under Section 2.03, and such
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obligations shall continue in full force and effect, if (i) the Registration
Statement is not declared effective by the SEC within 60 days after the date it
was originally filed with the SEC, (ii) the Company fails to maintain the
effectiveness of the Registration Statement for the Applicable Registration
Period, or (iii) a majority of the Rights Holders elect to terminate the
Registration Statement provided that they agree to pay or reimburse the Company
for all Registration Expenses (as hereinafter defined) of such registration as
contemplated by Section 4 below.
2.05 If at the time the Delayed Registrable Shares are released from
escrow pursuant to the Share Purchase Indemnification Escrow Agreement the
Company is planning to file an S-3 Registration Statement, the Company shall
give written notice to each of HVenture, DInternational and DSt.Xxxxxxx and each
such Rights Holder shall be deemed to have requested that the Company use its
best efforts to cause all Delayed Registrable Securities owned by such Rights
Holders to be registered under such S-3 Registration Statement.
If the Company has not provided such a notice to such Rights Holders within
one week after their Delayed Registrable Securities have been released from
escrow pursuant to the Share Purchase Indemnification Escrow Agreement, each
such Rights Holder shall be deemed to have requested that the Company effect the
registration of all of their Delayed Registrable Shares on an S-3 Registration
Statement.
The exercise of such piggy back or demand registration rights shall be
subject to the provisions of this Agreement and, for this purpose, all
references to Registrable Securities shall be deemed to be references to Delayed
Registrable securities.
2.06 If at the time of the receipt of a request to register Registrable
Shares pursuant to Section 2.03 above or of a request to register Delayed
Registrable securities pursuant to Section 2.05 above, the Company is engaged or
has fixed plans to file a Registration Statement with the Commission within
thirty (30) days after the time of the request in a registered public offering
or is engaged in any other activity which, in the good faith determination of
the Company's Board of Directors, would be adversely affected by the requested
registration to the material detriment of the Company , then the Company may at
its option, within five (5) business days after the receipt of the Registration
Request, direct that such request be delayed for a period not in excess of three
(3) months from the effective date of such public offering or thirty (30) days
after the date of commencement of such other material activity, as the case may
be, such right to delay a request to be exercised by the Company not more than
once in any one year period; provided further, however, that in the event of a
delay caused by a pending registered public offering by the Company, the Company
shall use its best efforts to cause to be registered in and sold without Cutback
pursuant to the registration statement for such public offering the Registrable
Shares that would have been eligible to be registered in the requested
Registration Statement that is being delayed. In the event of any such delay,
the duration of the time periods within which the Rights Holders are entitled to
exercise their registration rights under Sections 2.01 and 2.03 shall be
extended for a period of time equal to the duration of such delay.
2.07 If a required registration pursuant to Section 2.03 above is an
underwritten offering, the Company may select a managing underwriter to
administer the offering as long as such underwriter is of recognized standing.
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3. Registration Procedures
3.01 If and whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration under the
Securities Act of any of the Registrable Shares, subject to Section 2.05, the
Company shall:
(a) as expeditiously as practical, but in no event later than ninety
(90) days prepare and file with the Commission a Registration Statement with
respect to such Registrable Shares and, use its best efforts to cause that
Registration Statement to become effective as soon as possible thereafter;
(b) as expeditiously as practicable prepare and file with the
Commission any amendments and supplements to the Registration Statement and
the prospectus included in the Registration Statement as may be necessary to
keep the Registration Statement effective, in the case of a firm commitment
underwritten public offering, until each underwriter has completed the
distribution of all securities purchased by it and, in the case of any other
offering, until the earlier of the sale of all Registrable Shares covered
thereby and ninety (90) days after the effective date thereof (each, an
"Applicable Registration Period");
(c) as expeditiously as practicable furnish to each selling Rights
Holder such reasonable numbers of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents, as the selling Rights Holder may
reasonably request in order to facilitate the public sale or other
disposition of the Registrable Shares owned by the selling Rights Holder;
and
(d) as expeditiously as reasonably practicable use its best efforts to
register or qualify the Registrable Shares covered by the Registration
Statement under the securities or Blue Sky laws of such states as the
selling Rights Holders shall reasonably request, and do any and all other
acts and things that may be necessary or desirable to enable the selling
Rights Holders to consummate the public sale or other disposition in such
states of the Registrable Shares owned by the selling Rights Holder;
provided, however, that the Company shall not be required in connection with
this subsection 3.01(d) to qualify as a foreign corporation or execute a
general consent to service of process in any jurisdiction.
3.02 If the Company has delivered preliminary or final prospectuses to the
selling Rights Holders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Rights Holders and, if requested, the selling Rights Holders
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly but, in any such event,
by no later than the 30th day following the request by the Company that the
Rights Holders cease their sales of shares, provide the selling Rights Holders
with revised prospectuses and, following receipt of the revised prospectuses,
the selling Rights Holders shall be free to resume making offers of the
Registrable Shares. In such event, however, at the time the Rights Holders are
permitted to resume making such offers the Applicable Registration Period shall
be extended for a number of days equal to the period during which the Rights
Holders were required to cease selling their Registrable Shares pursuant to this
Section 3.02.
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3.03 Following the effectiveness of a Registration Statement (and the
making of any required filings with any state securities commissions), the
Company may direct the selling Rights Holders to suspend sales of the
Registrable Securities, as provided herein, if one or more of the following
events (a "Suspension Event") occurs:
(a) an underwritten primary offering by the Company where the Company
is advised by the underwriters for such offering that sale of Registrable
Shares under the Registration Statement would have a material adverse effect
on the primary offering (a "Public Offering Suspension Event"); or
(b) pending negotiations relating to, or consummation of, a transaction
or the occurrence of an event (a "Material Event Suspension"):
(i) that would require additional disclosure of material
information by the Company in the Registration Statement (or such
filings) the absence of which would make the Registration Statement
materially misleading; and
(ii) as to which the Company has a bona fide business purpose for
preserving confidentiality; or
(iii) which renders the Company unable to comply with Commission
requirements;
in each case under circumstances that would make it impractical or inadvisable
(i) to take any action with respect to the Registration Statement (or such
filings), the effectiveness or continued effectiveness thereof, or (ii) to
promptly amend or supplement the Registration Statement on a post-effective
basis, as applicable; provided, however, that:
(x) in the case of any Public Offering Suspension Event, the Company
shall use its best efforts to cause to be registered in and sold without
Cutback, pursuant to the underwritten registration statement for such public
offering, the Registrable Shares that were subject to the Suspension Event;
(y) in the case of any Public Offering Suspension Event, the period of
suspension shall terminate (A) within thirty (30) days if the registration
statement therefor is not filed with the Commission prior thereto, (B) if
the registration statement is filed with the Commission within such 30 day
period, but is not declared effective within the succeeding 60 days, on the
earlier of the termination of such 60 day period or the withdrawal of such
registration statement by the Company; and
(z) in the case of a Material Event Suspension under subsection (ii),
the duration of the suspension shall terminate on the earlier of the public
announcement of such Suspension Event and the expiration of thirty (30) days
from the commencement of the suspension and, in the case of a Material Event
Suspension under subsections (i) or (iii), the Company shall use its best
efforts to cause the duration of the suspension to terminate as soon as
reasonably practicable.
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If, despite the exercise of its best efforts, the Company is not able to
include all of such Registrable Shares in such registered public offering, as
contemplated by clause (x) above, or in case of any Material Event Suspension,
then, at the election of the holders of a majority of the Registrable Shares
included in the Suspended Registration Statement, (A) the duration of the
Applicable Time Period of the Suspended Registration Statement shall be extended
for a period of time equal to the duration of the suspension or (B) such Rights
Holders shall terminate their participation in the suspended Registration
Statement, in which case that Registration Statement shall not count as a
Registration Statement for purposes of Section 2 of this Agreement, such Holders
shall not be responsible for paying or reimbursing the Company for any of the
Registration Expenses incurred with respect to such Suspended Registration and
the respective time periods within which the Registrable Holders may exercise
their registration rights under Section 2.01 and 2.03 shall each be extended for
a period of time equal to the period of the suspension resulting from the
Suspension Event.
3.04 In the case of a Suspension Event, the Company shall give written
notice (a "Suspension Notice") to the selling Rights Holders to suspend sales of
the Registrable Shares so that the Company may correct or update the
Registration Statement (or such filings); provided, however, that such
suspension shall continue no longer than the applicable period of time set forth
in Section 3.03 above. The selling Rights Holders agree that they will not
effect any sales of the Registrable Shares pursuant to such Registration
Statement (or such filings) at any time during the period from the date they
received a Suspension Notice from the Company to such date as of which the
Suspension Period shall expire as provided in clauses (y) and (z) of Section
3.03 above. If so directed by the Company, selling Rights Holders will deliver
to the Company all copies of the prospectus covering the Registrable Shares held
by them at the time of receipt of the Suspension Notice. The selling Rights
Holders may recommence effecting sales of the Registrable Shares pursuant to the
Registration Statement (or such filings) following further written notice to
such effect (an "End of Suspension Notice") from the Company, which End of
Suspension Notice shall be accompanied by copies of the supplemented or amended
prospectus necessary to resume such sales; provided, however, that such End of
Suspension Notice shall be delivered, in the case of a Public Offering
Suspension Event, on the earlier to occur of the consummation of the public
offering and the date set forth in clause (y) of Section 3.03 above, and in the
case of a Material Event Suspension, at the applicable date set forth in clause
(z) of Section 3.03.
4. Allocation Of Expenses
The Company will pay all Registration Expenses of any registration under
this Agreement; provided, however, that, except as otherwise provided in Section
3.03, if a registration is withdrawn at the request of the Rights Holders
requesting such registration (other than as a result of information concerning
the business or financial condition of the Company which is made known to the
Rights Holders after the date on which such registration was requested) and if
the requesting Rights Holders elect not to have such registration counted as a
registration requested under Section 2, the requesting Rights Holders shall pay
the Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Shares included in such registration (provided such
registration was requested pursuant to Section 2.03 hereof). For purposes of
this Section 4, the term "Registration Expenses" shall mean all expenses
incurred by the Company in complying with this Agreement, including, without
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limitation, all registration and filing fees, exchange listing fees, printing
expenses, fees and expenses of counsel for the Company and the reasonable fees
and expenses of one counsel selected by the selling Rights Holders to represent
the selling Rights Holders, state Blue Sky fees and expenses, and the expense of
any special audits incidental to or required by any such registration, but
excluding underwriting discounts, selling commissions and the fees and expenses
of any selling Rights Holder's own counsel, or other out-of-pocket expenses of
the Rights Holders or their agents (other than the counsel selected to represent
all selling Rights Holders).
5. Indemnification And Contribution
5.01 In the event of any registration under the Securities Act of any
Registrable Shares pursuant to this Agreement, the Company will indemnify and
hold harmless the seller of such Registrable Shares, each underwriter of such
Registrable Shares, and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act or the Exchange Act against
any losses, claims, damages or liabilities, joint or several, to which such
seller, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse such seller, underwriter
and each such controlling person for any legal or any other expenses reasonably
incurred by such seller, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action as
and when incurred by them; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or omission made
in such Registration Statement, preliminary prospectus or final prospectus, or
any such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company, in writing, by or on behalf of such
seller, underwriter or controlling person specifically for use in the
preparation thereof; (provided, further, however, that the foregoing indemnity
agreement with respect to any registration statement or prospectus relating to
the Registrable Securities shall not inure to the benefit of any seller in such
offering, its officers, directors or agents, or controlling persons if:
(a) a copy of a prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) for such
offering was not sent or given by or on behalf of such selling shareholder
to the person ("Asserting Person") asserting any losses, claims, damages or
liabilities as a result of an untrue statement of a material fact contained
in any registration statement or prospectus relating to the Registrable
Securities (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or caused by 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 and if such
prospectus (as so amended or
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supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities; or
(b) such selling shareholder sold Registrable Securities to the
Asserting Person during the period between the date of a Suspension Notice
and the date of a End of Suspension Notice.
5.02 In the event of any registration under the Securities Act of any of
the Registrable Shares pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information relating to such seller furnished in writing
to the Company by or on behalf of such seller specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of such Rights Holders
hereunder shall be limited to an amount equal to the proceeds to each Rights
Holder of Registrable Shares sold in connection with such registration. The
terms of any underwriting agreement entered into by the Company to effect a
registration of the Registrable Securities shall require the underwriter to
indemnify and hold harmless the Company, its officers, directors, controlling
persons and agents and each selling Rights Holder on substantially the same
basis as that of the indemnification of the Company by each selling holder as
provided in this Section 5.
5.03 Each party entitled to indemnification under this Section 5
("Indemnified Party") shall give notice to the party required to provide
indemnification ("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 defence of any such claim or any
litigation resulting there from; provided, however, that counsel for the
Indemnifying Party, who shall conduct the defence of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld); and provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 5 (except to the extent
such failure to give notice has resulted in increased losses, damages or
liabilities for the Indemnifying Party). The Indemnified Party may participate
in such defence at such party's expense and the Indemnified Party and not the
Indemnifying Party shall bear or be responsible for the expenses thereof,
unless:
(a) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel, or
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(b) the named parties to any such proceeding (including any imp leaded
parties) include both the Indemnified Party and the Indemnifying Party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them.
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
judgement 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 of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgement or
settle such claim or litigation without the prior written consent of the
Indemnifying Party, which shall not be unreasonably withheld.
5.04 In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either:
(a) any holder of Registrable Shares exercising rights under this
Agreement, or any controlling person of any such holder, makes a claim for
indemnification pursuant to this Section 5 but it is judicially determined
(by the entry of a final judgement or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for indemnification in
such case; or
(b) contribution under the Securities Act may be required on the part
of any such selling Rights Holder or any such controlling person in
circumstances for which indemnification is provided under this Section 5;
then, in each such case, the Company and such Rights Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportions as is appropriate
to reflect the relative fault of the Indemnifying Party and Indemnified Parties
in connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations;
provided, however, that, in any such case:
(i) no such holder will be required to contribute any amount in excess
of the proceeds to it of all Registrable Shares sold by it pursuant to such
Registration Statement; and
(ii) no person or entity guilty of fraudulent misrepresentation, within
the meaning of Section 11(f) of the Securities Act, shall be entitled to
contribution from any person or entity who is not guilty of such fraudulent
misrepresentation.
6. Indemnification With Respect To Underwritten Offering
In the event that Registrable Shares are sold pursuant to a Registration
Statement in an underwritten offering, the Company agrees to enter into an
underwriting agreement containing customary representations and warranties with
respect to the business and operations of an issuer of the securities being
registered and customary covenants and agreements to be performed by
11
such issuer, including, without limitation, customary provisions with respect to
indemnification by the Company of the underwriters of such offering.
7. Information By Rights Holder
Each Rights Holder including Registrable Shares in any registration shall
furnish to the Company such information regarding such Rights Holder and the
distribution of such Right Holder's Registrable Shares proposed by such Rights
Holder as the Company may reasonably request in writing and as shall be required
in connection with any registration, qualification or compliance referred to in
this Agreement.
8. "Stand-Off" Agreement
Each Rights Holder, if requested by the Company and the managing
underwriter of a firmly underwritten offering by the Company of Common Stock or
other securities of the Company pursuant to a Registration Statement, shall
agree not to sell publicly or otherwise transfer, pledge or dispose of any
Registrable Shares or other securities of the Company held by such Rights Holder
for a specified period of time (not to exceed 120 days) following the effective
date of such Registration Statement; provided, that (i) all officers and
directors of the Company enter into similar agreements and (ii) the Rights
Holder's Registrable Shares have, to the extent requested by such Rights Holder,
been included in and are sold to the underwriters in such offering.
9. No Limitations On Subsequent Registration Rights
Nothing contained in this Agreement shall prohibit the Company from
granting to any holder or prospective holder of any securities of the Company
registration rights which would allow such holder or prospective holder to
include securities of the Company in any Registration Statement filed by the
Company, subject to the provisions of the last sentence of Section 2.02.
10. Rule 144 Requirements
The Company agrees to:
(a) comply with the requirements of Rule 144(c) under the Securities
Act with respect to current public information about the Company;
(b) use its reasonable efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements); and
(c) furnish to any holder of Registrable Shares upon request:
(i) a written statement by the Company as to its compliance with
the requirements of Rule 144(c) under the Securities Act, and the
reporting, requirements of the Securities Act and the Exchange Act (at
any time after it has become subject to such reporting requirements);
12
(ii) a copy of the most recent annual or quarterly report of the
Company; and
(iii) such other reports and documents of the Company as such
holder may reasonably request to avail itself of any similar rule or
regulation of the Commission allowing it to sell any such securities
without registration.
11. Mergers, Etc.
The Company shall not, directly or indirectly, enter into any merger,
consolidation or reorganization in which the Company shall not be the surviving
corporation or in which, although it is the surviving corporation, it becomes a
subsidiary of another corporation or entity (a "Parent Entity'), unless the
proposed surviving corporation or Parent Entity, as the case may be, shall,
prior to such merger, consolidation or reorganization, agree in writing to
assume the obligations of the Company under this Agreement; and for such
purpose, references hereunder to "Registrable Shares" shall be deemed to be
references to the securities which the Rights Holders would be entitled to
receive in exchange for Registrable Shares under any such merger, consolidation
or reorganization; provided, however, that the provisions of this Section 11
shall not apply in the event of any merger, consolidation or reorganization in
which the Company is not the surviving corporation and does not become a
subsidiary of a Parent Entity, if all stockholders are entitled to receive in
exchange for their Registrable Shares consideration consisting solely of:
(a) cash; or
(b) securities of the acquiring corporation which may be immediately
sold to the public without registration under the Securities Act.
12. Termination
All of the Company's obligations to register Registrable Shares under this
Agreement shall terminate upon the last to occur of (i) the sale of all
Registrable Shares by the Holders thereof pursuant to this Agreement, (ii) the
earliest date as of which all Registrable Shares have ceased being Registrable
Shares or (iii) the expiration of the S-3 Registration Period (as the same may
have been extended pursuant to Section 2.05 or Section 3.03 above).
13. Transfers Of Rights
This Agreement, and the rights and obligations of each Rights Holder
hereunder, may only be assigned (including assignment by law) by such Rights
Holder to:
(a) any partner or retired partner of the Rights Holder, if the Rights
Holder is a partnership;
(b) any family member or trust for the benefit of the Rights Holder, if
the Rights Holder is an individual; and
13
(c) any entity controlled by, controlling or under common control with
the Rights Holder;
provided that the transferee provides written notice of such assignment to the
Company and agrees in writing to be bound by the terms and conditions hereof.
14. Other Public Offerings
This Agreement is not intended to and shall not preclude the Company from
listing its Common Stock on any reputable non-United States exchange.
15. Notices
All notices, requests, consents, and other communications under this
Agreement shall be in writing and shall be delivered by hand or mailed by first-
class certified or registered mail, return receipt requested, postage prepaid:
(a) if to the Company, to 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Company Secretary, or to such other
address or addresses as may from time to time be furnished in writing by the
Company to the Rights Holders, with a copy to Xxxxxxx X. Conklin, Gibson,
Xxxx & Xxxxxxxx LLP, Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000; or
(b) if to an Investor, to its address set forth on Schedule 1 attached
----------
hereto, or to such other address or addresses as may from time to time be
furnished to the Company in writing by such Investor, with a copy to Xxxxx
Xxxxx or Xxxx Xxxxx, Eitan, Pearl, Xxxxxx & Xxxxx Zedek, Gav Yam 0, Xxxxxxx
Xxxxxx, 0 Xxxxxxxx, Xxxxxx.
Notices provided in accordance with this Section 15 shall be deemed
delivered upon personal delivery or two business days after deposit in the mail.
16. Entire Agreement
This Agreement embodies the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings relating to such subject matter.
17. Amendments And Waivers
Any term of this Agreement may be amended and the observance of any term of
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written consent of the
Company and the holders of a majority of the Registrable Shares; provided,
however, that this Agreement may be amended with the consent of the holders of
less than all but at least a majority of the Registrable Shares only in a manner
which affects the rights of all Registrable Shares in the same fashion. No
waivers of or exceptions to any term, condition or provision of this Agreement,
in any one or more instances,
14
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
18. Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which shall be one and the same
instrument.
19. Severability
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement.
20. Governing Law
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of California without reference to conflict of laws
principles thereof.
21. Section Headings
The heading of each Section, Subsection or other subdivision of this
Agreement is for reference purposes only and shall not limit or control the
meaning thereof.
22. Execution of Share Transfer Deeds
The agreement of the Company to include 100% of the Parent Shares issued to
HVenture, DInternational, D.St.Xxxxxxx, MStudent and PSimon is conditioned upon
each such Investor's delivery to the Shareholders' share transfer deeds in
respect of the 10% of such Investor's Parent Shares which are subject to the
Share Purchase Indemnification Escrow Agreement (as such term is defined in the
Share Purchase Agreement).
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed on its behalf as of the day and year first above written.
COMPANY:
VIRATA CORPORATION
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
SHAREHOLDERS' AGENT
/s/ Xxxxxxxx Xxxxx
---------------------------------------
Xxxxxxxx Xxxxx
16
SCHEDULE 1
INVESTORS
---------
Xxxxxxxx Xxxxx Xxxxxxx Venture
_______________________________ _______________________________
_______________________________ _______________________________
_______________________________ _______________________________
Telephone: Telephone:
Telecopier: Telecopier:
Xxxxxx Xxxxx Docor International
_______________________________ _______________________________
_______________________________ _______________________________
_______________________________ _______________________________
Telephone: Telephone:
Telecopier: Telecopier:
Menacham Student
_______________________________
_______________________________
_______________________________
Telephone:
Telecopier:
Xxxxx St. Xxxxxxx
_______________________________
_______________________________
_______________________________
Telephone:
Telecopier:
Xxxxx Xxxxx
_______________________________
_______________________________
_______________________________
Telephone:
Telecopier:
