EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of February
15, 1996, by and among Amati Communications Corporation, a Delaware corporation
(the "Company"), and the affiliates who have executed this Agreement (the
"Affiliates").
R E C I T A L S
A. The Company and the former Amati Communications Corporation, a California
corporation ("Old Amati"), entered into an agreement dated as of August
3, 1995, as amended (the "Merger Agreement"), providing for the merger (the
"Merger") of Old Amati with and into a wholly-owned subsidiary of the Company
pursuant to which the Affiliates received shares of the Company's Common Stock,
$0.20 par value (the "Common Stock"), in exchange for the shares of Old Amati
Common Stock and Preferred Stock they held on the effective date of the Merger
(the "Effective Date").
B. Pursuant to the Merger Agreement, each Affiliate has entered into an
agreement (the "Affiliate's Agreement") providing that such person not
offer or sell or otherwise dispose of any of the Common Stock issued to such
person in the Merger except (1) in compliance with the holding periods specified
in Rule 144 under the Securities Act (as defined below), and otherwise in
compliance with Rule 145 under the Securities Act, or (2) pursuant to a resale
prospectus under an effective registration agreement covering such resales; and
further restricting the Common Stock such person may sell during the first year
(and, in one case, the second year) following the Merger.
C. In connection with the Affiliate's Agreements, the Company and the
Affiliates desire to provide for the rights of the Affiliates with
respect registration of the Common Stock issued to them in the Merger for
resale.
THE PARTIES AGREE AS FOLLOWS:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(b) "FORM S-3" shall mean Form S-3 issued by the Commission or any
substantially similar form then in effect.
(c) "HOLDER" shall mean any holder of outstanding Registrable Securities
which have not been sold to the public, but only if such holder is an
Affiliate or a transferee or assignee of Registration rights as permitted by
Section 4.
(d) The terms "REGISTER", "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration
statement in compliance with the Securities Act ("REGISTRATION STATEMENT"),
and the declaration or ordering of the effectiveness of such Registration
Statement.
(e) "REGISTRABLE SECURITIES" shall mean all Common Stock of the Company
issued to Affiliates in the Merger and any Common Stock issued
pursuant to stock splits, stock dividends and similar distributions with
respect to such shares.
(f) "REGISTRATION EFFECTIVE PERIOD" shall mean a period beginning the
date the Registration Statement becomes effective and ending on the
earlier of: (i) the date when Holders become eligible to sell the
Registrable Securities pursuant to Rule 144; or (ii) the date the
distribution described in the Registration Statement has been completed.
(g) "REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with this Agreement, including, without
limitation, all federal and state registration, qualification and filing
fees, printing expenses, fees and disbursements of counsel for the Company,
fees
and disbursements of one counsel for the selling Holders up to a maximum of
$2,500, blue sky fees and expenses, the expense of any special audits
incident to or required by any such registration, other than Selling
Expenses, and any expenses related to the maintenance of such Registration
and qualification during the Registration Effective Period.
(h) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(i) "SELLING EXPENSES" shall mean all selling commissions applicable to
the sale of Registrable Securities pursuant to this Agreement, as
well as fees and disbursements of legal counsel for the selling Holders,
other than those expressly included in Registration Expenses.
(j) "WINDOW PERIOD" shall mean the period commencing three days after the
date of a press release announcing the Company's quarterly earnings
and generally ending 45 days after such date and any other periods the
Company allows trading by its officers and directors.
2. REGISTRATION.
2.1 REGISTRATION ON FORM S-3.
Subject to the terms of this Agreement, the Company shall use its
diligent efforts to effect Registration of the Registrable Securities by
filing as soon as possible after the date hereof a Form S-3 with the
Commission.
2.2 REGISTRATION OF OTHER SECURITIES.
Any Registration Statement filed under this Section 2 may include
securities of the Company other than Registrable Securities; provided,
however, that neither the Company nor any Holder shall be required to
utilize an underwriter in connection with the sale of their Registrable
Securities.
2.3 TRADING WINDOWS.
(a) Throughout the Registration Effective Period, Holders shall only
offer or sell Registrable Securities during Window Periods and in
accordance with the trading clearance procedure set forth below.
(b) During any Window Period, a Holder proposing to offer or sell
Registrable Securities pursuant to the Registration Statement shall
send a copy of the completed clearance form (to be provided to the Holder
under Section 2.3(d)) to the Company by facsimile (408-433-0260), addressed
to the attention of the Secretary/Treasurer, at least two (2) business days
prior to the date the Holder proposes to sell Registrable Securities,
requesting that the Company clear the trade. The Company shall reply to such
Holder by facsimile within two (2) business days following receipt of the
clearance form, and in the reply shall either confirm that the Window Period
remains open and that the sale can be made, or notify the Holder that
trading is suspended (and indicating, if practicable, the expected date when
such suspension shall end). If the reply confirms an open Window Period, the
Holder is permitted to offer and sell Registrable Securities during that
Window Period, unless the Company notifies the Holder by facsimile that the
Window Period has been closed pursuant to Section 2.3(c) below. Clearance in
accordance with this Section must be obtained each time a Holder intends to
offer or sell Registrable Securities.
(c) Notwithstanding any other provision of this Section 2.3, the Company
shall have the right at any time not to open a Window Period or,
during an open Window Period, to suspend offers and sales of Registrable
Securities whenever, and for so long as, in the reasonable judgment of the
Company there is or may be in existence material undisclosed information or
events with respect to the Company. The Company shall promptly provide
Holders with notice of such suspension and shall use all reasonable efforts
to minimize the length of the suspension.
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(d) Prior to the effectiveness of the Registration Statement, the Company
shall provide to each Holder an information sheet summarizing the
Registration rights set forth herein and indicating the anticipated dates of
the Window Periods during the Registration Effective Period, and shall
include a form for use in requesting clearance of trades in accordance with
this Section 2.3.
2.4 BLUE SKY.
The Company will exercise its reasonable efforts to Register and qualify
the securities covered by the Registration Statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
appropriate for the distribution of such securities; provided, however,
that:
(a) the Company shall not be required to qualify to do business or to
file a general consent to service of process in any such states
or jurisdictions; and
(b) notwithstanding anything in this Agreement to the contrary, in
the event any jurisdiction in which the securities shall be
qualified imposes a non-waivable requirement that expenses incurred in
connection with the qualification of the securities be borne by selling
stockholders, such expenses shall be payable pro rata by selling
stockholders.
2.5 EXPENSES OF REGISTRATION.
All Registration Expenses incurred in connection with the Registration
on Form S-3 pursuant to this Agreement shall be borne by the Company. All
Selling Expenses shall be borne by the Holders incurred by them.
2.6 REGISTRATION PROCEDURES.
Subject to the other provisions of this Agreement, the Company shall, as
expeditiously as reasonably possible:
(a) prepare and file with the Commission a Registration Statement
with respect to such securities in accordance with Section 2.1
and use its diligent efforts to cause such Registration Statement to
become effective as promptly as possible thereafter and to remain
effective during the Registration Effective Period;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus
used in connection with such Registration Statement as may be necessary
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement;
(c) furnish to the Holders such reasonable number of copies of the
Registration Statement, preliminary prospectus and final
prospectus as they may request in order to facilitate the public offering
of such securities; and
(d) notify each Holder 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 the prospectus included in
such Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or is necessary to make the statements therein not
misleading in the light of the circumstances then existing.
2.7 ADDITIONAL INFORMATION AVAILABLE.
So long as the Registration Statement is effective covering the resale
of Registrable Securities owned by a Holder, the Company will furnish to the
Holder(s):
(a) as soon as practicable after it becomes available (but in the
case of the Company's Annual Report to stockholders, within 120
days after the end of each fiscal year of the Company), one copy of: (i)
its Annual Report to Stockholders (which Annual Report shall
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contain financial statements audited in accordance with generally
accepted accounting principles by a national firm of certified public
accountants); (ii) if not included in substance in the Annual Report to
Stockholders, its Annual Report on 10-K; (iii) if not included in
substance in its Quarterly Reports to Stockholders, its quarterly reports
on 10-Q; and (iv) a full copy of the particular Registration Statement
covering the Registrable Securities (the foregoing, in each case,
excluding exhibits); and
(b) upon the reasonable request of a Holder, all exhibits excluded by
the parenthetical to subparagraph (a) (iv) of this Section 2.7;
and the Company, upon the reasonable request of a Holder, will meet with
such Holder or a representative thereof, at the Company's headquarters,
to discuss all information relevant for disclosure in the Registration
Statement covering the Registrable Securities and will otherwise
cooperate with any Holder conducting an investigation for the purpose of
reducing or eliminating such Holder's exposure to liability under the
Securities Act, including reasonable production of information at the
Company's headquarters.
2.8 INFORMATION FURNISHED BY HOLDER.
It shall be a condition precedent of the Company's obligations under
this Agreement that each Holder of Registrable Securities included in any
Registration furnish to the Company such information regarding such Holder
and the distribution proposed by such Holder as the Company may reasonably
request.
2.9 INDEMNIFICATION.
(a) COMPANY'S INDEMNIFICATION OF HOLDERS.
To the extent permitted by law, the Company will indemnify each
Holder, each of its officers, directors and constituent partners, legal
counsel for the Holders, and each person controlling such Holder, with
respect to which Registration, qualification or compliance of Registrable
Securities has been effected pursuant to this Agreement, and each
underwriter, if any, and each person who controls any underwriter against
all claims, losses, damages or liabilities (or actions in respect
thereof) to the extent such claims, losses, damages or liabilities arise
out of or are based upon any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus or other
document (including any related Registration Statement) incident to any
such Registration, qualification or compliance, or are 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 not
misleading, or any violation by the Company of the Securities Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or any
state securities law, or any rule or regulation promulgated under the
Securities Act, the 1934 Act or any state securities law, applicable to
the Company and relating to action or inaction required of the Company in
connection with any such Registration, qualification or compliance; and
the Company will reimburse each such Holder, each of its officers,
directors and constituent partners, and legal counsel, each such
underwriter, and each person who controls any such Holder or underwriter,
for any legal and any other expenses reasonably incurred, as incurred, in
connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that the indemnity contained in
this Section 2.9(a) shall not apply to amounts paid in settlement of any
such claim, loss, damage, liability or action if settlement is effected
without the consent of the Company (which consent shall not unreasonably
be withheld); and provided, further, that the Company 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 upon any untrue statement
or omission based upon written information furnished to the Company by
such Holder, its officers, directors, constituent partners, or legal
counsel, underwriter, or controlling person and stated to be for use in
connection with the offering of securities of the Company.
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(b) HOLDER'S INDEMNIFICATION OF COMPANY.
To the extent permitted by law, each Holder shall indemnify the
Company, each of its directors and officers, each legal counsel and
independent accountant of the Company, each underwriter, if any, of the
Company's securities covered by a Registration Statement, each person who
controls the Company or such underwriter within the meaning of the
Securities Act, and each other such Holder, each of its officers,
directors and constituent partners and each person controlling such other
Holder, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any such
Registration Statement, prospectus, offering circular or other document
(including any related Registration Statement) incident to any such
Registration, qualification or compliance, 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, or any
violation by such Holder of the Securities Act, the 1934 Act or any state
securities law, or any rule or regulation promulgated under the
Securities Act, the 1934 Act or any state securities law, applicable to
such Holder and relating to action or inaction required of such Holder in
connection with any such Registration, qualification or compliance, in
each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission)
is made in a Registration Statement, prospectus, offering circular or
other document in reliance upon and in conformity with written
information furnished to the Company by such Holder and stated to be
specifically for use in connection with the offering of securities of the
Company; and shall reimburse the Company, such Holders, such directors,
officers, partners, persons, law and accounting firms, underwriters or
control persons for any legal and any other expenses reasonably incurred,
as incurred, in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in a Registration
Statement, prospectus, offering circular or other document in reliance
upon and in conformity with written information furnished to the Company
by such Holder and stated to be specifically for use in connection with
the offering of securities of the Company; provided, however, that each
Holder's liability under this Section 2.9(b) shall not exceed such
Holder's proceeds from the offering of securities made in connection with
such Registration; and provided, further, that the indemnity contained in
this Section 2.9(b) shall not apply to amounts paid in settlement of any
such claim, loss, damage, liability or action if settlement is effected
without the consent of the Holder (which consent shall not unreasonably
be withheld).
(c) INDEMNIFICATION PROCEDURE.
Promptly after receipt by an indemnified party under this Section 2.9
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party
under this Section 2.9, notify the indemnifying party in writing of the
commencement thereof and generally summarize such action. The
indemnifying party shall have the right to participate in and to assume
the defense of such claim, jointly with any other indemnifying party
similarly noticed; provided, however, that the indemnifying party shall
be entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval shall
not be unreasonably withheld; provided further, however, that if either
party reasonably determines that there may be a conflict between the
position of the Company and the Holders in conducting the defense of such
action, suit or proceeding by reason of recognized claims for indemnity
under this Section 2.9, then counsel for such party shall be entitled to
conduct the defense to the extent reasonably determined by such counsel
to be necessary to protect the interest of such party. The failure to
notify an indemnifying party promptly of the commencement of any such
action, if prejudicial to the ability of the indemnifying party to defend
such action, shall
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relieve such indemnifying party, to the extent so prejudiced, of any
liability to the indemnified party under this Section 2.9, but the
omission so to notify the indemnifying party will not relieve such party
of any liability that such party may have to any indemnified party
otherwise other than under this Section 2.9.
3. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934.
With a view to making available to the Holders the benefits of Rule 144 and
any other rule or regulation of the Commission that may at any time permit a
Holder to sell securities of the Company to the public without Registration or
pursuant to a Registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
defined in Rule 144;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the
1934 Act; and
(c) furnish to any Holder, so long as such Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 or
that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested in availing any
Holder of any rule or regulation of the Commission which permits the selling
of any such securities without registration.
4. TRANSFER OF RIGHTS.
The Registration rights of the Affiliates set forth in the Agreement may be
transferred or assigned by any Affiliate to a transferee or assignee of any
Registrable Securities not sold to the public acquiring at least fifty percent
(50%) of the shares of such Affiliate's Registrable Securities (equitably
adjusted for any recapitalization, stock split, combination, and the like) or
acquiring all of the Registrable Securities held by such Affiliate (hereinafter
referred to in this Section 4 as the "Transferee") if transferred to a single
entity; provided, however, that:
(a) the Company must receive written notice prior to the time of said
transfer, stating the name and address of the Transferee and
identifying the securities with respect to which such Registration rights
are being transferred or assigned, and
(b) the Transferee must not be a person deemed by the Board of Directors
of the Company to be a competitor or potential competitor of the
Company.
Notwithstanding the limitation set forth in the foregoing sentence
respecting the minimum number of shares which must be transferred, any Affiliate
which is a partnership may transfer such Affiliate's Registration rights to such
Affiliate's constituent partners (or may transfer to their heirs in the case of
individuals) without restriction as to the number or percentage of shares
acquired by any such constituent partner (or heirs).
5. MISCELLANEOUS.
5.1 ENTIRE AGREEMENT; AFFILIATE'S AGREEMENTS; SUCCESSORS AND ASSIGNS.
This Agreement and the Affiliate's Agreements constitute the entire
contract between the Company and the Affiliates relative to the subject
matter hereof. Any previous agreement between the Company and the Affiliates
concerning Registration rights is superseded by this Agreement; provided,
however, that the transfer limitations set forth in Sections 1(d) and 1(e)
of each Holder's Affiliate's Agreement shall remain in full force and
effect. Subject to the exceptions specifically set forth in this Agreement,
the terms and conditions of this Agreement shall inure to the benefit of and
be binding upon the respective executors, administrators, heirs, successors
and assigns of the parties.
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5.2 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of California applicable to contracts entered into and
wholly to be performed within the State of California by California
residents.
5.3 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
5.4 HEADINGS.
The headings of the Sections of this Agreement are for convenience and
shall not by themselves determine the interpretation of this Agreement.
5.5 NOTICES.
Except for notice of trade clearances which are to be provided in
accordance with Section 2.3(b), any notice required or permitted hereunder
shall be in writing and shall be deemed to have been duly given on the date
of delivery if delivered personally, on the date of electronic confirmation
of receipt if delivered by facsimile, or five days after the date of mailing
if mailed by first class mail, registered or certified, postage prepaid.
Notices which are to be provided under this Section shall be addressed (i)
if to the Company, as set forth below the Company's name on the signature
page of this Agreement, and (ii) if to an Affiliate, at such Affiliate's
address as set forth on the signature page hereto, or at such other address
as the Company or such Affiliate may designate by ten (10) days' advance
written notice to the Affiliates or to the Company, respectively.
5.6 AMENDMENT OF AGREEMENT.
Except as otherwise specifically provided herein, any provision of this
Agreement may be amended by a written instrument signed by the Company and
by persons holding more than two-thirds (2/3) of the then outstanding
Registrable Securities.
5.7 SEVERABILITY.
If any provision of this Agreement is held to be unenforceable for any
reason, it shall be adjusted rather than voided, if possible, in order to
achieve the intent of the parties to the extent possible. In any event, all
other provisions of this Agreement shall be deemed valid and enforceable to
the full extent possible.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
The COMPANY: AMATI COMMUNICATIONS CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Title: President and CEO
Address: X.X. Xxx 0000
0000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
The AFFILIATES:
/s/ Xxxx X. Xxxxxx
------------------------------------------------
Xxxx X. Xxxxxx
Address: 0000 Xxxxxxxxx Xx.
Xxxxxxxxx, XX 00000
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/s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Xxxxx X. Xxxxxxx
Address: 000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
/s/ Xxx Xxxxxxx
------------------------------------------------
Xxx Xxxxxxx
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------------
Xxxxx X. Xxxxxxxx
Address: 00000 Xxxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
UNIVERSITY VENTURES II
By: CommTech International Management
Corp., General Partner of CommTech
International, its General Partner
By: /s/ Xxxxxx X. Xxxxxxx, President
------------------------------------------------
General Partner
Address: 000 Xxxxxxxxxxx Xxxx,
Xxxxx 000
Xxxxx Xxxx, XX 00000
NEPENTHE GROUP PROFIT SHARING PLAN
(FOB) Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx, Trustee
------------------------------------------------
Xxxxxx X. Xxxxxxx
Address: 000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
NEPENTHE GROUP PROFIT SHARING PLAN
(FOB) Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
------------------------------------------------
Xxxxx X. Xxxxxx
Address: 000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
NEPENTHE GROUP PROFIT MONEY
PURCHASE PLAN (FOB) Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
------------------------------------------------
Xxxxx X. Xxxxxx
Address: 000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
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XXXXXX XXXXXXXX JUNIOR UNIVERSITY
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
Stanford Management Company
Address: 000 Xxxxx Xxxx
Xxxx Xxxx, XX 00000
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