1
EXHIBIT 10.5
ASPEC TECHNOLOGY, INC.
FIRST AMENDMENT TO
REGISTRATION AGREEMENT
This First Amendment (the "AMENDMENT") to Registration Agreement is made as
of October 3, 1996 by and among Aspec Technology, Inc., a California corporation
(the "COMPANY"), the Investors (as defined below), the Founders (as defined
below) and the purchasers listed on Exhibit A attached hereto (the "NEW
INVESTORS").
RECITALS
A. The Company, certain holders of the Company's Common Stock and Series
A Preferred Stock (the "INVESTORS") and Xxxxxx X. Dell'Oca, Xxx X. Xxxx, Xxxxxxx
X. Xxx and Xxx X. Xxxxx (collectively, the "FOUNDERS") are parties to that
certain Registration Agreement dated as of May 28, 1996 (the "REGISTRATION
AGREEMENT").
B. The Company proposes to sell an aggregate of 254,130 shares of its
Common Stock (the "COMMON SHARES") to the New Investors pursuant to that certain
Common Stock Purchase Agreement dated as of the date hereof (the "STOCK PURCHASE
AGREEMENT").
C. The Founders propose to sell an aggregate of 1,016,870 shares of the
Company's Common Stock (the "FOUNDERS SHARES") to the New Investors pursuant to
that certain Agreement for Purchase and Sale of Common Stock dated the date
hereof.
D. The Company, the Founders and the Investors desire that the Company
sell the Common Shares to the New Investors and that the Registration Agreement
be amended as set forth herein.
E. Pursuant to Section 1(g) of the Registration Agreement, the Company
may not grant further demand registration rights without the written consent of
at least 55% of the Investor Registrable Securities (as defined therein),
subject to certain limited exceptions.
F. Pursuant to Section 9(c) thereof, the Registration Agreement may be
amended upon the written consent of (i) the Company, (ii) the holders of at
least 55% of the Investor Registrable Securities (as defined therein) and (iii)
the holders of a majority of the Founder Registrable Securities (as defined
therein).
G. The Company, the Founders and Investors holding not less than the
minimum number of shares required to amend the Registration Agreement have
consented in writing to this Amendment.
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AGREEMENT
1. Amendment of Registration Agreement. The Registration Agreement is
hereby amended as follows:
(a) For all purposes of the Registration Agreement (as amended by
this Amendment), the term "Investor Registrable Securities" shall include the
Common Shares.
(b) As to the Common Shares, the term "Investors" shall include the
New Investors.
(c) For all purposes of the Registration Agreement (as amended by
this Amendment), the term "Founder Registrable Securities" shall include the
Founders Shares.
2. Governing Law. This Amendment and the legal relations among the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of California. The parties hereto agree to submit to
the jurisdiction of the federal and state courts of the State of California with
respect to the breach or interpretation of this Amendment or the enforcement of
any and all rights, duties, liabilities, obligations, powers, and other
relations among the parties arising under this Amendment.
3. Entire Agreement. The Registration Agreement, as amended hereby,
constitutes the full and entire understanding and agreement among the parties
regarding the subject matter herein. Except as otherwise expressly provided in
the Registration Agreement, as amended hereby, the provisions hereof shall inure
to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto.
4. Full Force and Effect. Except as amended hereby, the Registration
Agreement shall remain in full force and effect.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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IN WITNESS WHEREOF, the undersigned have executed this First Amendment
to Registration Agreement as of the date set forth above.
COMPANY: ASPEC TECHNOLOGY, INC.
By: /s/ XXXXXX X. DELL'OCA
-----------------------------------
Xxxxxx X. Dell'Oca,
Chief Executive Officer
INVESTORS: SUMMIT VENTURES IV, L.P.
By Summit Partners IV, L.P.
Its General Partner
By Stamps, Xxxxxxx & Co. IV
Its General Partner
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------------------
Its: General Partner
-----------------------------------
SUMMIT INVESTORS III, L.P.
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------------------
Its Authorized Signatory
WS INVESTMENT COMPANY 96-A
By: /s/ XXXXXXX XXXXX
-----------------------------------
Its:
-----------------------------------
/s/ XXXXXXX XXXXX
-----------------------------------
Xxxxxxx X. Xxxxx
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K&E PARTNERS II
By: /s/ XXXX X. XXXXX
-----------------------------------
Its: Managing Partner
-----------------------------------
WK TECHNOLOGY FUND
By: /s/ Y. S. FU
-----------------------------------
Its: Partner
-----------------------------------
WK TECHNOLOGY FUND II
By: /s/ Y. S. FU
-----------------------------------
Its: Partner
-----------------------------------
WK TECHNOLOGY FUND III
By: /s/ Y. S. FU
-----------------------------------
Its: Partner
-----------------------------------
WK TECHNOLOGY FUND IV
By: /s/ Y.S. FU
-----------------------------------
Its: Partner
-----------------------------------
/s/ XXXXXX X. DELL'OCA
FOUNDERS: --------------------------------------
Xxxxxx X. Dell'Oca
/s/ XXX X. XXXX
--------------------------------------
Xxx X. Xxxx
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/s/ XXXXXXX X. XXX
--------------------------------------
Xxxxxxx X. Xxx
/s/ XXX X. XXXXX
--------------------------------------
Xxx X. Xxxxx
NEW INVESTORS: WINBOND INTERNATIONAL CORP.
By: /s/ DIP XXXX XXXX
-----------------------------------
Its: President
-----------------------------------
CONCORD V.C.
By: /s/ [ILLEGIBLE]
-----------------------------------
Its: Chairman
-----------------------------------
CONCORD II V.C.
By: /s/ [ILLEGIBLE]
-----------------------------------
Its: Chairman
-----------------------------------
/s/ XXXX XXXX-XXXX
--------------------------------------
Xxxx Xxxx-Xxxx
HANTECH V.C. CORP.
By: /s/ [ILLEGIBLE]
-----------------------------------
Its: President
-----------------------------------
HWA CHUAN CO., LTD.
By: /s/ [ILLEGIBLE]
-----------------------------------
Its: Chairman
-----------------------------------
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GOLDEN TECHNOLOGY C.V.
INVESTMENT CORP.
By: /s/ LO-HOU CHEW
-----------------------------------
Its: President
-----------------------------------
LO-HOU CHEW
--------------------------------------
Lo-hou Chew
/s/ CHYONG XXX XXXXX
--------------------------------------
Chyong Xxx Xxxxx
CDC VENTURE INVESTMENT (H.K.)
CORPORATION LIMITED
By:
-----------------------------------
Its:
-----------------------------------
/s/ SHAO-FU CHEN
--------------------------------------
Shao-Fu Chen
CHINATRUST V.C. CO., LTD.
By: /s/ PANE X. XXXX
-----------------------------------
Its: President
-----------------------------------
PACIFIC V.C. CO., LTD.
By: /s/ PANE X. XXXX
-----------------------------------
Its: President
-----------------------------------
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/s/ XXX XXX YEH, XXXX
--------------------------------------
Xxx Xxx Yeh, Chen
/s/ XXXX-HGIANG LIN
--------------------------------------
Xxxx-Hgiang Lin
/s/ XXX XXXXX, XXXX XXXX
--------------------------------------
Xxx Xxxxx, Xxxx Xxxx
WIN WIN VENTURE CAPITAL
CORPORATION
By: /s/ Cheng Xxxx Xxx
-----------------------------------
Its: President
-----------------------------------
/s/ AI-XXX XXXX TSAI
--------------------------------------
Ai-Xxx Xxxx Xxxx
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EXHIBIT A
FIRST AMENDMENT TO REGISTRATION AGREEMENT
SCHEDULE OF NEW INVESTORS
Winbond International Corp.
Concord V.C.
Concord II X.X.
Xxxx Xxxx-Xxxx
HanTech V.C. Corp.
Hwa Chuan Co., Ltd.
Golden Technology C.V.
Investment Corp.
Lo-hou Xxxx
Xxxxxx Xxx Xxxxx
CDC Venture Investment (H.K.)
Corporation Limited
Shao-Fu Chen
Chinatrust V.C. Co., Ltd.
Pacific V.C. Co., Ltd.
Taiwan United V.C. Corp.
Win Win V.C. Corp.
Ai-Xxx Xxxx Xxxx
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ASPEC TECHNOLOGY, INC.
REGISTRATION AGREEMENT
THIS AGREEMENT is made as of May 28, 1996, by and among Aspec
Technology, Inc., a California corporation (the "Company"), the parties listed
as Investors on the Schedule of Investors attached hereto (collectively, the
"Investors") and the parties listed as Founders on the Schedule of Founders
attached hereto (collectively, the "Founders").
The Company and the Investors are parties to a Purchase Agreement of
even date herewith (the "Purchase Agreement"). In order to induce the Investors
to enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the Closing under the Purchase Agreement.
Unless otherwise provided in this Agreement, capitalized terms used herein shall
have the meanings set forth in paragraph 8 hereof.
The parties hereto hereby agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after the Company has
completed a public offering of its Common Stock under the Securities Act (the
"IPO"), the holders of at least 55% of the Investor Registrable Securities may
request registration under the Securities Act of all or any portion of their
Investor Registrable Securities on Form S-1 or any similar long-form
registration ("Long-Form Registrations"), and the holders of at least 25% of the
Investor Registrable Securities may request registration under the Securities
Act of all or any portion of their Investor Registrable Securities on Form S-2
or S-3 or any similar short-form registration ("Short-Form Registrations") if
the Company is eligible to use any such short-form. All registrations requested
pursuant to this paragraph 1(a) are referred to herein as "Demand
Registrations." Each request for a Demand Registration shall specify the
approximate number of Investor Registrable Securities requested to be registered
and the anticipated per share price range for such offering. Within ten days
after receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Investor Registrable Securities
and, subject to paragraph 1(d) below, shall include in such registration all
Investor Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 15 days after the receipt of the
Company's notice.
(b) Long-Form Registrations. The holders of Investor Registrable
Securities shall be entitled to request (i) two Long-Form Registrations in which
the Company shall pay all Registration Expenses (the "Company-paid Long-Form
Registrations") and (ii) two Long-Form Registrations in which the holders of
Investor Registrable Securities shall pay their share of the Registration
Expenses as set forth in paragraph 5 hereof; provided that the aggregate
offering value of the Investor Registrable Securities requested to be registered
in any Long-Form Registration must equal at least $2,500,000. A registration
shall not count as one of the permitted Long-Form Registrations until it has
become effective, unless such registration was withdrawn prior to the
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effectiveness thereof at the written request of the holders of Investor
Registrable Securities initially requesting such registration, in which case
such withdrawn registration shall count as one of the permitted Company-paid
Long-Form Registrations hereunder unless the holders of Investor Registrable
Securities initially requesting such registration and the other holders electing
to participate therein pay all of the reasonable Registration Expenses in
connection with such withdrawn registration.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to paragraph 1(b), the holders of Investor
Registrable Securities shall be entitled to request (i) three Short-Form
Registrations in which the Company shall pay all Registration Expenses
("Company-paid Short-Form Registrations") and (ii) an unlimited number of
Short-Form Registrations in which the holders of Investor Registrable Securities
shall pay their share of the Registration Expenses as set forth in paragraph 5
hereof; provided that the aggregate offering value of the Investor Registrable
Securities requested to be registered in any Short-Form Registration must equal
at least $500,000. A registration shall not count as one of the permitted
Company-paid Short-Form Registrations until it has become effective, unless
such registration was withdrawn prior to the effectiveness thereof at the
written request of the holders of Investor Registrable Securities initially
requesting such registration, in which case such withdrawn registration shall
count as one of the permitted Company-paid Short-Form Registrations hereunder
unless the holders of Investor Registrable Securities initially requesting such
registration and the other holders electing to participate therein pay all of
the reasonable Registration Expenses in connection with such withdrawn
registration. Demand Registrations shall be Short-Form Registrations whenever
the Company is eligible to use any applicable short form. After the Company has
become subject to the reporting requirements of the Securities Exchange Act, the
Company shall use its best efforts to make Short-Form Registrations on Form S-3
available for the sale of Registrable Securities.
(d) Priority on Demand Registrations. The Company shall not include
in any Demand Registration any securities which are not Investor Registrable
Securities without the prior written consent of the holders of at least 55% of
the Investor Registrable Securities included in such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Investor Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Investor Registrable Securities
and other securities, if any, which can be sold in an orderly manner in such
offering within a price range acceptable to the holders of at least 55% of the
Investor Registrable Securities initially requesting registration, the Company
shall include in such registration prior to the inclusion of any securities
which are not Investor Registrable Securities the number of Investor Registrable
Securities requested to be included which in the opinion of such underwriters
can be sold in an orderly manner within the price range of such offering, pro
rata among the respective holders thereof on the basis of the amount of Investor
Registrable Securities owned by each such holder. Unless otherwise approved by
the Company's board of directors, any Persons other than holders of Investor
Registrable Securities who participate in Demand Registrations which are not at
the Company's expense must pay their share of the Registration Expenses as
provided in paragraph 5 hereof.
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(e) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within 180 days after the effective
date of the Company's IPO or within 180 days after the effective date of a
previous Demand Registration or a previous registration in which the holders of
Investor Registrable Securities were given piggyback rights pursuant to
paragraph 2. The Company may postpone for up to 90 days (up to 60 days in the
case of clause (ii) below) the filing or the effectiveness of a registration
statement for a Demand Registration if the Company's board of directors
determines in its reasonable good faith judgment that such Demand Registration
would reasonably be expected to have (i) a material adverse effect on (or
require premature disclosure of) any proposal or plan by the Company or any of
its Subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganization or similar transaction or (ii) a material adverse effect on the
Company's business or stock price; provided that in such event, the holders of
Investor Registrable Securities initially requesting such Demand Registration
shall be entitled to withdraw such request and, if such request is withdrawn,
such Demand Registration shall not count as one of the permitted Demand
Registrations hereunder and the Company shall pay all Registration Expenses in
connection with such registration. The Company may delay a Demand Registration
hereunder only once in any twelve-month period.
(f) Selection of Underwriters. The Company's board of directors shall
select the investment banker(s) and manager(s) to administer any Demand
Registration.
(g) Other Registration Rights. Except as provided in this Agreement,
the Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of at least 55% of the Investor Registrable Securities;
provided that the Company may grant rights to other Persons to participate in
Piggyback Registrations so long as such rights are subordinate to the rights of
the holders of Investor Registrable Securities with respect to such Piggyback
Registrations.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities under the Securities Act (other than pursuant to a Demand
Registration or in connection with the Company's IPO) and the registration form
to be used may be used for the registration of Registrable Securities (a
"Piggyback Registration"), the Company shall give prompt written notice to all
holders of Registrable Securities of its intention to effect such a registration
and, subject to paragraphs 2(c) and 2(d) below, shall include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 20 days after the receipt
of the Company's notice. Notwithstanding the foregoing, the holders of Founder
Registrable Securities shall be entitled to participate in the Company's IPO in
accordance with the priorities established in clauses (i) and (iii) of paragraph
2(c) below so long as the estimated net proceeds to the Company from the sale of
shares in the offering as set forth in the registration statement for such
offering or otherwise communicated in writing to the Securities and Exchange
Commission prior to or at the time the registration statement is declared
effective (including any
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shares to be sold by the Company pursuant to a registration statement filed
under Rule 462) will enable the Company to redeem all of the Company's Series A
Redeemable Preferred Stock pursuant to paragraph 4C of Article III of the
Company's Articles of Incorporation and so long as the underwriter(s) managing
such offering consent to such participation.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration
(other than with respect to the Company's IPO) is an underwritten primary
registration on behalf of the Company, and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company shall include in such registration (i) first, the securities the Company
proposes to sell, (ii) second, the Investor Registrable Securities requested to
be included in such registration, pro rata among the holders of such Investor
Registrable Securities on the basis of the number of shares owned by each such
holder, (iii) third, the Founder Registrable Securities requested to be included
in such registration, pro rata among the holders of such Founder Registrable
Securities on the basis of the number of shares owned by each such holder, and
(iv) fourth, other securities requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration and the Investor Registrable
Securities requested to be included in such registration, pro rata among the
holders of such securities on the basis of the number of securities owned by
each such holder, (ii) second, the Founder Registrable Securities requested to
be included in such registration, pro rata among the holders of such Founder
Registrable Securities on the basis of the number of shares owned by each such
holder, and (iii) third, other securities requested to be included in such
registration.
(e) Other Registrations. If the Company has previously filed a
registration statement with respect to Investor Registrable Securities pursuant
to paragraph 1 or Registrable Securities pursuant to this paragraph 2, and if
such previous registration has not been withdrawn or abandoned, the Company
shall not file or cause to be effected any other registration of any of its
equity securities or securities convertible or exchangeable into or exercisable
for its equity securities under the Securities Act (except on Form S-8 or any
successor form), whether on its own behalf or at the request of any holder or
holders of such securities, until a period of at least 90 days has elapsed from
the effective date of such previous registration.
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3. Holdback Agreements.
(a) Each holder of Registrable Securities shall not effect any public
sale or distribution (including sales pursuant to Rule 144 promulgated under the
Securities Act) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 180-day period beginning on the effective date of
the Company's IPO or during the seven days prior to and the 90-day period
beginning on the effective date of the Company's second registered public
offering of Common Stock, whether such public offering is pursuant to a Demand
Registration or otherwise (except as part of any such registration), unless the
underwriters managing the registered public offering otherwise agree in writing.
(b) The Company (i) shall not effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of the Company's IPO or during the seven
days prior to and the 90-day period beginning on the effective date of (A) the
second registered public offering of the Company's Common Stock and (B) any
underwritten Demand Registration (except as part of such registration or
pursuant to registrations on Form S-8 or any successor form), unless the
underwriters managing the registered public offering otherwise agree in writing,
and (ii) shall use its best efforts to cause each holder of at least 2% of its
Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144
promulgated under the Securities Act) of any such securities during such period
(except as part of such registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree in writing.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
terms of this Agreement and the intended method of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective; provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall, if requested, furnish to the counsel
selected by the holders of at least 55% of the Investor Registrable Securities
covered by such registration statement copies of all such documents proposed to
be filed (excluding exhibits);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 90 days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in
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accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) notify each seller of such Registrable Securities, 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 contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registra tion statement as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such Registrable Securities
with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) as the holders of at least 55% of the Investor
Registrable Securities being sold and the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities;
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(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent, so as to permit such Persons
to comply with their respective due diligence obligations under the Securities
Act;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"), shall be borne as provided in this
Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed or on the NASD automated quotation system. Notwithstanding the foregoing,
the holders of Registrable Securities (and not the Company) shall pay all
underwriting discounts and commissions with respect to the Registrable
Securities.
(b) In connection with each Company-paid Long-Form Registration, each
Company-paid Short-Form Registration and each Piggyback Registration, the
Company shall reimburse the holders of Investor Registrable Securities included
in such registration for the reason able fees and disbursements of one counsel
chosen by the holders of at least 55% of the Investor Registrable Securities
initially requesting such registration; provided that such fees and
disbursements shall not exceed $25,000 with respect to each Company-paid
Long-Form Registration or $15,000 with respect to each Company-paid Short-Form
Registration or Piggyback Registration.
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(c) To the extent Registration Expenses are not required to be paid
by the Company and unless otherwise approved by the Company's board of
directors, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included or otherwise incurred by such holder, and any
Registration Expenses not so allocable shall be borne by all sellers of
securities included in such registration in proportion to the aggregate selling
price of the securities to be so registered.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities, except with respect to any information supplied by any
underwriter for use in such registration statement, prospectus or other offering
document and except that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus, the
indemnity agreement contained in this paragraph shall not inure to the benefit
of the underwriter from whom the Person asserting any such losses, claims,
damages, liabilities or expenses purchased shares concerned (or to the benefit
of any person controlling such underwriter) to the extent that any such loss,
claim, damage, liability or expense of the underwriter or controlling person
results from an untrue statement or omission in the preliminary prospectus which
was corrected in the prospectus if a copy of the prospectus was not sent or
given to such Person as required by the Securities Act.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder shall furnish to
the Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to
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17
indemnify shall be individual, not joint and several, for each holder and shall
be limited to the net amount of proceeds received by such holder from the sale
of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder, except to the
extent such failure has prejudiced the indemnifying party) and (ii) unless in
such indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and shall survive the transfer of securities. The
indemnifying parties also agree to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the indemnification provided hereunder is called for under the terms hereof but
is unavailable for any reason.
7. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company (other than
representations and warranties regarding such holder and such holder's intended
method of distribution) or to undertake any indemnification obligations to the
Company with respect thereto, except as otherwise provided in paragraph 6
hereof.
8. Definitions.
(a) "Founder Registrable Securities" means (i) the Common Stock owned
of record by the Founders on the date hereof, (ii) any Common Stock issued or
issuable with respect to the securities referred to in clause (i) above by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization and
(iii) any other shares of Common Stock held by Persons holding securities
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18
described in clauses (i) or (ii) above. As to any particular Founder Registrable
Securities, such securities shall cease to be Founder Registrable Securities
when they have been distributed to the public pursuant to an offering registered
under the Securities Act or sold to the public through a broker, dealer or
market maker in compliance with Rule 144 under the Securities Act (or any
similar rule then in force) or repurchased by the Company or any Subsidiary. In
addition, as to any particular Founder Registrable Securities held by any
Person, such securities shall cease to be Founder Registrable Securities when
the aggregate number of Founder Registrable Securities held by such Person does
not exceed one percent of the number of shares of Common Stock then outstanding
as shown by the most recent report or statement published by the Company and
such Person has held such securities at least two years.
(b) "Investor Registrable Securities" means (i) the Common Stock
issued pursuant to the Purchase Agreement, (ii) any Common Stock issued or
issuable with respect to the Common Stock referred to in clause (i) above by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization and
(iii) any other shares of Common Stock held by Persons holding securities
described in clauses (i) or (ii) above. As to any particular Investor
Registrable Securities, such securities shall cease to be Investor Registrable
Securities when they have been distributed to the public pursuant to an offering
registered under the Securities Act or sold to the public through a broker,
dealer or market maker in compliance with Rule 144 under the Securities Act (or
any similar rule then in force) or repurchased by the Company or any Subsidiary.
In addition, as to any particular Investor Registrable Securities held by any
Person, such securities shall cease to be Investor Registrable Securities when
the aggregate number of Investor Registrable Securities held by such Person does
not exceed one percent of the number of shares of Common Stock then outstanding
as shown by the most recent report or statement published by the Company and
such Person has held such securities at least two years.
(c) "Registrable Securities" means, collectively, the Investor
Registrable Securities and the Founder Registrable Securities.
(d) Unless otherwise stated, other capitalized terms contained herein
have the meanings set forth in the Purchase Agreement.
9. Miscellaneous.
(a) No Inconsistent Agreements. Except in compliance with Section
9(c) hereof, the Company shall not hereafter enter into any agreement with
respect to its securities which is inconsistent with or violates the rights
granted to the holders of Registrable Securities in this Agreement.
(b) Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law
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19
or equity of competent jurisdiction (without posting any bond or other security)
for specific performance and for other injunctive relief in order to enforce or
prevent violation of the provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of each of the Company and holders of at least 55% of the
Investor Registrable Securities and the holders of a majority of the Founder
Registrable Securities.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of such Registrable Securities.
(e) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts (including by means of telecopied signature pages), any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. All issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of California, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of California or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California.
(i) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to each Investor at the address indicated on the
Schedule of Investors
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20
attached hereto, to each Founder at the address indicated on the Schedule of
Founders attached hereto, and to the Company at the address indicated below:
Aspec Technology, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party given
in accordance with this paragraph.
* * * * *
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21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ASPEC TECHNOLOGY, INC.
By /s/ XXXXXX X. DELL 'OCA
-----------------------------------
Its President & C.E.O.
-----------------------------------
SUMMIT VENTURES IV, L.P.
By Summit Partners IV, L.P.
Its General Partner
By Stamps, Xxxxxxx & Co. IV
Its General Partner
By /s/ XXXXXX X. XXXXXXXXX
-----------------------------------
Its General Partner
-----------------------------------
SUMMIT INVESTORS III, L.P.
By /s/ XXXXXX X. XXXXXXXXX
------------------------------------
Its Authorized Signatory
WS INVESTMENT COMPANY 96-A
By /s/ XXXXXXX XXXXX
-----------------------------------
Its
-----------------------------------
/s/ XXXXXXX X. XXXXX
--------------------------------
Xxxxxxx X. Xxxxx
K&E PARTNERS II
By /s/ XXXX X. XXXXX
-----------------------------------
Its Managing Partner
-----------------------------------
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22
[SIGNATURE PAGE CONTINUED] /s/ XXXXXX X. DELL'OCA
--------------------------------
Xxxxxx X. Dell'Oca
/s/ XXX X. XXXX
--------------------------------
Xxx X. Xxxx
/s/ XXXXXXX X. XXX
--------------------------------
Xxxxxxx X. Xxx
/s/ XXX X. XXXXX
--------------------------------
Xxx X. Xxxxx
WK TECHNOLOGY FUND
By /s/ Y.S. FU
-----------------------------------
Its Partner
-----------------------------------
WK TECHNOLOGY FUND II
By /s/ Y.S. FU
-----------------------------------
Its Partner
-----------------------------------
WK TECHNOLOGY FUND III
By /s/ Y.S. FU
-----------------------------------
Its Partner
-----------------------------------
WK TECHNOLOGY FUND IV
By /s/ Y.S. FU
-----------------------------------
Its Partner
-----------------------------------
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23
SCHEDULE OF INVESTORS
Summit Ventures IV, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxxxx
Summit Investors III, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxxxx
WK Technology Fund
10th Floor, 115, Sec. 3
Xxxx Xxxxx E. Road
Taipei, Taiwan R.O.C.
Attn: Ys Fu
WK Technology Fund II
10th Floor, 115, Sec. 3
Xxxx Xxxxx E. Road
Taipei, Taiwan R.O.C.
Attn: Ys Fu
WK Technology Fund III
10th Floor, 115, Sec. 3
Xxxx Xxxxx E. Road
Taipei, Taiwan R.O.C.
Attn: Ys Fu
WK Technology Fund IV
10th Floor, 115, Sec. 3
Xxxx Xxxxx E. Road
Taipei, Taiwan R.O.C.
Attn: Ys Fu
WS Investments 96-A
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
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24
Xxxx Xxxx, XX 00000
K&E Partners II
000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn.: Xxxx X. Xxxxx
- 16 -
25
SCHEDULE OF FOUNDERS
Xxxxxx X. Dell'Oca
Aspec Technology, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxx X. Xxxx
Aspec Technology, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxx
Aspec Technology, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxx X. Xxxxx
Aspec Technology, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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