EXHIBIT 10.2
CORPORATE AGREEMENT
THIS CORPORATE AGREEMENT ("Agreement") is entered into as of _______,
1998 by and between SILICON GRAPHICS, INC., a Delaware corporation ("SGI"), and
MIPS TECHNOLOGIES, Inc., a Delaware corporation ("MIPS").
RECITALS
A. SGI, directly owns _____ shares of Common Stock, par value $.01
per share ("Common Stock"), of MIPS, and MIPS is a member of SGI's "affiliated
group" of corporations (the "SGI Group") for federal income tax purposes.
B. The parties are contemplating the possibility that SGI will sell
shares of Common Stock in an initial public offering (the "Initial Public
Offering") registered under the Securities Act of 1933, as amended.
C. The parties desire to enter into this Agreement to set forth their
agreement regarding (i) SGI's rights to purchase additional shares of Capital
Stock of MIPS to permit SGI to own at least the Minimum Ownership Percentage of
Capital Stock in MIPS, (ii) certain registration rights with respect to the
Common Stock (and any other securities issued in respect thereof or in exchange
therefor) and (iii) certain representations, warranties, covenants and
agreements applicable so long as MIPS is a subsidiary of SGI.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, SGI and MIPS, for themselves,
their successors, and assigns, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following
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terms will have the following meanings, applicable both to the singular and the
plural forms of the terms described:
"Affiliate" means, with respect to a given Person, any Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the power to vote a
majority of the securities having voting power for the election of directors (or
other Persons acting in similar capacities) of such
Person or otherwise to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agreement" has the meaning ascribed thereto in the preamble hereto,
as such agreement may be amended and supplemented from time to time in
accordance with its terms.
"Applicable Stock" means at any time the (i) shares of Common Stock
owned by the SGI Entities that were owned on the date hereof, plus (ii) shares
of Common Stock purchased by the SGI Entities pursuant to Article II of this
Agreement, plus (iii) shares of Common Stock that were issued to SGI Entities in
respect of shares described in either clause (i) or clause (ii) in any
reclassification, share combination, share subdivision, share dividend, share
exchange, merger, consolidation or similar transaction or event.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Company Securities" has the meaning ascribed thereto in Section
3.2(b).
"Disadvantageous Condition" has the meaning ascribed thereto in
Section 3.1(a).
"MIPS" has the meaning ascribed thereto in the preamble hereto.
"MIPS Entities" means MIPS and its Subsidiaries, and "MIPS Entity"
shall mean any of the MIPS Entities.
"Holder" means SGI, the other SGI Entities and any Transferee.
"Holder Securities" has the meaning ascribed thereto in Section
3.2(b).
"Initial Public Offering" has the meaning ascribed thereto in the
recitals to this Agreement.
"Initial Public Offering Date" means the date of completion of the
initial sale of Common Stock in the Initial Public Offering.
"Issuance Event" has the meaning ascribed thereto in Section 2.2.
"Issuance Event Date" has the meaning ascribed thereto in Section 2.2.
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"Market Price" of any shares of Common Stock (or other Capital Stock)
on any date means (i) the average of the last sale price of such shares on each
of the five trading days immediately preceding such date on the Nasdaq National
Market or, if such shares are not listed or quoted thereon, on the principal
national securities exchange or automated interdealer quotation system on which
such shares are traded or (ii) if such sale prices are unavailable or such
shares are not so traded, the value of such shares on such date determined in
accordance with agreed-upon procedures reasonably satisfactory to MIPS and SGI.
"Minimum Ownership Percentage" means the ownership of such number of
(i) shares of Capital Stock of the Company to the extent, and only to the
extent, necessary for SGI to maintain all of the following: (a) control of the
Company (within the meaning of Section 368(a)(2)(H) and (c) of the Internal
Revenue Code of 1986, as amended (the "Code")), (b) the status of the Company as
a member of the affiliated group of corporations (within the meaning of Section
1504 of the Code) of which SGI is the common parent, provided such status has
theretofore been maintained or (c) its then-existing percentage of the total
voting power and value of the Company, whichever percentage is highest, and (ii)
shares of non-voting capital stock to the extent, and only to the extent,
necessary to own 80% of each outstanding class of such stock.
"Option" has the meaning ascribed thereto in Section 2.1(a).
"Option Notice" has the meaning ascribed thereto in Section 2.2.
"Other Holders" has the meaning ascribed thereto in Section 3.2(c).
"Other Securities" has the meaning ascribed thereto in Section 3.2.
"Ownership Percentage" means, at any time, the fraction, expressed as
a percentage and rounded to the next highest thousandth of a percent, whose
numerator is the aggregate Value of the Applicable Stock and whose denominator
is the aggregate Value of outstanding shares of Common Stock of MIPS; provided,
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however, that any shares of Common Stock issued by MIPS in violation of its
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obligations under Article II of this Agreement shall not be deemed outstanding
for the purpose of determining the Ownership Percentage. For purposes of this
definition, "Value" means, with respect to any share of stock, the value of such
share determined by SGI under principles applicable for purposes of Section 1504
of the Internal Revenue Code of 1986, as amended.
"Person" means any individual, partnership, limited liability company,
joint venture, corporation, trust, unincorporated organization, government (and
any department or agency thereof) or other entity.
"Registrable Securities" means shares of Common Stock and any stock or
other securities into which or for which such Common Stock may hereafter be
changed, converted or
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exchanged and any other shares or securities issued to the Holders (or such
shares or other securities into which or for which such shares are so changed,
converted or exchanged) upon any reclassification, share combination, share
subdivision, share dividend, share exchange, merger, consolidation or similar
transaction or event or pursuant to the Option. As to any particular
Registrable Securities, such Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale by the Holder thereof shall have been declared effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) such Registrable Securities are sold by
a person in a transaction in which the rights under the provisions of this
Agreement are not assigned or (iii) such Registrable Securities may be sold
pursuant to Rule 144(k) (or any similar provision then in force) under the
Securities Act without registration under the Securities Act. (iv) such
Registrable Securities shall have been otherwise transferred, new certificates
for them not bearing a legend restricting further transfer shall have been
delivered by MIPS and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any state
securities or blue sky law then in effect or (v) they shall have ceased to be
outstanding.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with any registration of securities pursuant to
Article III, including, without limitation, (i) the fees, disbursements and
expenses of MIPS's counsel and accountants and the fees and expenses of counsel
selected by the Holders in accordance with this Agreement in connection with the
registration of the securities to be disposed of, such fees and expenses of such
counsel selected by the Holders to be reasonable in the reasonable discretion of
MIPS; (ii) all expenses, including filing fees, in connection with the
preparation, printing and filing of the registration statement, any preliminary
prospectus or final prospectus, any other offering document and amendments and
supplements thereto and the mailing and delivering of copies thereof to any
underwriters and dealers; (iii) the cost of printing or producing any
underwriting agreements and blue sky or legal investment memoranda and any other
documents in connection with the offering, sale or delivery of the securities to
be disposed of; (iv) all expenses in connection with the qualification of the
securities to be disposed of for offering and sale under state securities laws,
including the fees and disbursements of counsel for the underwriters or the
Holders of securities in connection with such qualification and in connection
with any blue sky and legal investment surveys; (v) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the securities to be disposed of; (vi) transfer
agents' and registrars' fees and expenses and the fees and expenses of any other
agent or trustee appointed in connection with such offering; (vii) all security
engraving and security printing expenses; (viii) all fees and expenses payable
in connection with the listing of the securities on any securities exchange or
automated interdealer quotation system or the rating of such securities, (ix)
any other fees and disbursements of underwriters customarily paid by the sellers
of securities, but excluding underwriting discounts and commissions and transfer
taxes, if any, and (x) other reasonable out-of-pocket expenses of Holders other
than legal fees and expenses referred to in clause (i) above.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
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"Rule 415 Offering" means an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule to similar effect) promulgated under
the Securities Act.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor statute.
"Selling Holder" has the meaning ascribed thereto in Section 3.4(e).
"SGI" has the meaning ascribed thereto in the preamble hereto.
"SGI Entities" means SGI and Subsidiaries of SGI (other than
Subsidiaries that constitute MIPS Entities), and "SGI Entity" shall mean any of
the SGI Entities.
"SGI Group" has the meaning ascribed thereto in the recitals to this
Agreement.
"SGI Ownership Reduction" means any decrease at any time in the
Ownership Percentage to less than 50%.
"SGI Transferee" has the meaning ascribed thereto in Section 3.9.
"Subsidiary" means, as to any Person, any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting capital stock or other voting ownership interests is owned or
controlled, directly or indirectly, by such Person or by one or more of the
Subsidiaries of such Person or by a combination thereof. "Subsidiary," when
used with respect to SGI or MIPS, shall also include any other entity affiliated
with SGI or MIPS, as the case may be, that SGI and MIPS may hereafter agree in
writing shall be treated as a "Subsidiary" for the purposes of this Agreement.
"Transferee" has the meaning ascribed thereto in Section 3.9.
Section 1.2. Internal References. Unless the context indicates
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otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement and references
to the parties shall mean the parties to this Agreement.
ARTICLE II
OPTIONS
Section 2.1. Options. (a) MIPS hereby grants to SGI, on the terms
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and conditions set forth herein, a continuing right (the "Option") to purchase
from MIPS such number of shares of the Capital Stock as is necessary to allow
the SGI Entities to maintain the Minimum Ownership Percentage
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in the Capital Stock of MIPS. The Option shall be assignable, in whole or in
part and from time to time, by SGI to any SGI Entity. The exercise price for
the shares of Capital Stock purchased pursuant to the Option shall be the
Market Price of the Capital Stock as of the date of first delivery of notice
of exercise of the Option by SGI (or its permitted assignee hereunder) to
MIPS.
(b) The provisions of Section 2.1(a) hereof notwithstanding, the
Option granted pursuant to Section 2.1 shall not apply and shall not be
exercisable in connection with the issuance by MIPS of any shares of Common
Stock pursuant to any stock option or other executive or employee benefit or
compensation plan maintained by MIPS, so long as, from and after the date hereof
and prior to the issuance of such shares, MIPS has repurchased from shareholders
and not subsequently reissued a number of shares equal or greater to the number
of shares to be issued in any such issuance.
Section 2.2. Notice. At least 20 business days prior to the issuance
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of any shares of Capital Stock (other than in connection with the Initial Public
Offering, including the full exercise of all underwriters' over-allotment
options granted in connection therewith and other than issuances of Common Stock
to any SGI Entity) or the first date on which any event could occur that, in the
absence of a full or partial exercise of the Option, would result in a reduction
in SGI's level of ownership in MIPS to below the Minimum Ownership Percentage,
MIPS will notify SGI in writing (an "Option Notice") of any plans it has to
issue such shares or the date on which such event could first occur. Each Option
Notice must specify the date on which MIPS intends to issue such additional
shares or on which such event could first occur (such issuance or event being
referred to herein as an "Issuance Event" and the date of such issuance or event
as an "Issuance Event Date"), the number of shares MIPS intends to issue or may
issue and the other terms and conditions of such Issuance Event.
Section 2.3. Option Exercise and Payment. The Option may be
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exercised by SGI (or any SGI Entity to which all or any part of the Option has
been assigned) for a number of shares equal to or less than the number of shares
that are necessary for the SGI Entities to maintain, in the aggregate, the
Minimum Ownership Percentage. Each Option may be exercised at any time by the
delivery to MIPS of a written notice (the "Exercise Notice") to such effect
specifying (i) the number of shares of Capital Stock to be purchased by SGI, or
any of the SGI Entities and (ii) a calculation of the exercise price for such
shares. Upon any such exercise of the Option, MIPS will deliver to SGI (or any
SGI Entity designated by SGI), against payment therefor, certificates (issued in
the name of SGI or its permitted assignee hereunder or as directed by SGI)
representing the shares of Capital Stock being purchased upon such exercise. If
after the receipt of an Option Notice and prior to the corresponding Issuance
Event Date, SGI delivers to MIPS an Exercise Notice, MIPS shall deliver the
certificates for the shares of Capital Stock being purchased prior to the
applicable Issuance Event Date. Payment for such shares shall be made by wire
transfer or intrabank transfer of immediately-available funds to such account as
shall be specified by MIPS, for the full purchase price for such shares.
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Section 2.4. Effect of Failure to Exercise. Except as provided in
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Section 2.6, any failure by SGI to exercise the Option in full shall not affect
SGI's right to exercise the Option at any time in the future.
Section 2.5. Initial Public Offering. Notwithstanding the foregoing,
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SGI shall not be entitled to exercise the Option in connection with the Initial
Public Offering of the Common Stock if, upon the completion of the Initial
Public Offering, including the full exercise of all underwriters' over-allotment
options granted in connection therewith, SGI owns at least the Minimum Ownership
Percentage (other than (i)(c) of the definition of the Minimum Ownership
Percentage).
Section 2.6. Termination of Options. The Option shall terminate upon
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the occurrence of any Issuance Event that, after considering SGI's response
thereto and to any other Issuance Events, results in a SGI Ownership Reduction,
other than any Issuance Event in violation of this Agreement. Each Option, or
any portion thereof assigned to any SGI Entity other than SGI, also shall
terminate in the event that the Person to whom such Option, or such portion
thereof has been transferred, ceases to be a SGI Entity for any reason
whatsoever.
ARTICLE III
REGISTRATION RIGHTS
Section 3.1. Demand Registration - Registrable Securities. (a) Upon
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written notice provided at any time after the Initial Public Offering Date from
any Holder of Registrable Securities requesting that MIPS effect the
registration under the Securities Act of any or all of the Registrable
Securities held by such Holder, which notice shall specify the intended method
or methods of disposition of such Registrable Securities, MIPS shall use its
best efforts to effect the registration under the Securities Act and applicable
state securities laws of such Registrable Securities for disposition in
accordance with the intended method or methods of disposition stated in such
request (including in a Rule 415 Offering, if MIPS is then eligible to register
such Registrable Securities on Form S-3 (or a successor form) for such
offering); provided that:
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(i) with respect to any registration statement filed, or to be filed,
pursuant to this Section 3.1, if MIPS shall furnish to the Holders of
Registrable Securities that have made such request a certified resolution
of the Board of Directors of MIPS (adopted by the affirmative vote of a
majority of the directors not designated by the SGI Entities that are also
directors or officers of any SGI Entity) stating that in the Board of
Directors' good faith judgment it would (because of the existence of, or in
anticipation of, any acquisition or financing activity, or the
unavailability for reasons beyond MIPS's reasonable control of any required
financial statements, or any other event or condition of similar
significance to MIPS) be significantly disadvantageous (a "Disadvantageous
Condition") to MIPS for such a registration statement to be maintained
effective, or to be filed and become effective, and setting forth the
general reasons for such judgment, MIPS shall be entitled to cause such
registration statement to be
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withdrawn and the effectiveness of such registration statement
terminated, or, in the event no registration statement has yet been
filed, shall be entitled not to file any such registration statement,
until such Disadvantageous Condition no longer exists (notice of which
MIPS shall promptly deliver to such Holders). Upon receipt of any such
notice of a Disadvantageous Condition, such Holders shall forthwith
discontinue use of the prospectus contained in such registration
statement and, if so directed by MIPS, each such Holder will deliver to
MIPS all copies, other than permanent file copies then in such Holder's
possession, of the prospectus then covering such Registrable Securities
current at the time of receipt of such notice; provided, that
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the filing of any such registration statement may not be delayed for a
period in excess of 90 days due to the occurrence of any particular
Disadvantageous Condition [and no more than three resolutions regarding
Disadvantageous Conditions may be made by the Board of Directors in any
two-year period.];
(ii) after any SGI Ownership Reduction, the Holders of Registrable
Securities may collectively exercise their rights under this Section 3.1
(through notice delivered by Holders owning in the aggregate a majority in
economic interest of the Registrable Securities then held by Holders) on
not more than four occasions (it being acknowledged that prior to any SGI
Ownership Reduction, there shall be no limit to the number of occasions on
which such Holders (other than any SGI Transferees and their Affiliates
(other than SGI Entities)) may exercise such rights);
(iii) except as otherwise provided herein, the Holders of
Registrable Securities shall not have the right to exercise registration
rights pursuant to this Section 3.1 within the 180-day period following the
registration and sale of Registrable Securities effected pursuant to a
prior exercise of the registration rights provided in this Section 3.1; and
(iv) the Holders of Registrable Securities shall not have the right
to exercise registration rights pursuant to this Section 3.1 within the
180-day period following the effective date of the Registration Statement
in connection with the Initial Public Offering.
(b) Notwithstanding any other provision of this Agreement to the
contrary, a registration requested by a Holder of Registrable Securities
pursuant to this Section 3.1 shall not be deemed to have been effected (and,
therefore, not requested for purposes of paragraph (a) above), (i) unless it has
become effective, (ii) if after it has become effective such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason other than a
misrepresentation or an omission by such Holder and, as a result thereof, the
Registrable Securities requested to be registered cannot be completely
distributed in accordance with the plan of distribution set forth in the related
registration statement or (iii) if the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied or waived other than by reason of some act
or omission by such Holder of Registrable Securities.
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(c) In the event that any registration pursuant to this Section 3.1
shall involve, in whole or in part, an underwritten offering, the Holders of a
majority of the Registrable Securities to be registered shall have the right to
designate an underwriter or underwriters reasonably acceptable to MIPS as the
lead or managing underwriters of such underwritten offering and, in connection
with each registration pursuant to this Section 3.1, such Holders may select one
counsel reasonably acceptable to MIPS to represent all such Holders.
(d) MIPS shall have the right to cause the registration of additional
equity securities for sale for its account, the account of any MIPS Entity or
any existing or former directors, officers or employees of the MIPS Entities in
any registration of Registrable Securities requested by the Holders pursuant to
paragraph (a) above; provided, however, that if the registration and sale of
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such additional equity securities would require SGI or any SGI Entity to
exercise the Option to maintain the then-current Ownership Percentage or
ownership of 80% of each class of outstanding Nonvoting Stock, then the number
of such additional equity securities shall be reduced so that exercise of the
Option would not be necessary for SGI or any SGI Entity to maintain such
ownership levels and, provided, further, that if such Holders are advised in
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writing (with a copy to MIPS) by a nationally recognized investment banking or
commercial banking firm selected by such Holders reasonably acceptable to MIPS
(which shall be the lead underwriter or a managing underwriter in the case of an
underwritten offering) that, in such firm's good faith view, all or a part of
such additional equity securities cannot be sold and the inclusion of such
additional equity securities in such registration would be likely to have an
adverse effect on the price, timing or distribution of the offering and sale of
the Registrable Securities then contemplated by any Holder, the registration of
such additional equity securities or part thereof shall not be permitted. The
Holders of the Registrable Securities to be offered may require that any such
additional equity securities be included in the offering proposed by such
Holders on the same conditions as the Registrable Securities that are included
therein. In the event that the number of Registrable Securities requested to be
included in a registration statement by the Holders thereof exceeds the number
which, in the good faith view of such investment banking firm, can be sold
without adversely affecting the price, timing, distribution or sale of
securities in the offering, the number shall be allocated pro rata among the
requesting Holders on the basis of the relative number of Registrable Securities
then held by each such Holder (provided that any number in excess of a Holder's
request may be reallocated among the remaining requesting Holders in a like
manner).
Section 3.2. Piggyback Registration. In the event that MIPS at any
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time after the Initial Public Offering Date proposes to register any of its
Common Stock, any other of its equity securities or securities convertible into
or exchangeable for its equity securities (collectively, including Common Stock,
"Other Securities") under the Securities Act, whether or not for sale for its
own account, in a manner that would permit registration of Registerable
Securities for sale for cash to the public under the Securities Act, it shall at
each such time give prompt written notice to each Holder of Registrable
Securities of its intention to do so and of the rights of such Holder under this
Section 3.2. Subject to the terms and conditions hereof, such notice shall offer
each such Holder the opportunity to include in such
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registration statement such number of Registrable Securities as such Holder
may request. Upon the written request of any such Holder made within 15 days
after the receipt of MIPS's notice (which request shall specify the number of
Registrable Securities intended to be disposed of and the intended method of
disposition thereof), MIPS shall use its best efforts to effect, in connection
with the registration of the Other Securities, the registration under the
Securities Act of all Registrable Securities which MIPS has been so requested
to register, to the extent required to permit the disposition (in accordance
with such intended method of disposition thereof) of the Registrable
Securities so requested to be registered; provided, that:
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(a) if, at any time after giving such written notice of its intention
to register any Other Securities and prior to the effective date of the
registration statement filed in connection with such registration, MIPS shall
determine for any reason not to register the Other Securities, MIPS may, at its
election, give written notice of such determination to such Holders and
thereupon MIPS shall be relieved of its obligation to register such Registrable
Securities in connection with the registration of such Other Securities, without
prejudice, however, to the rights of the Holders of Registrable Securities
immediately to request that such registration be effected as a registration
under Section 3.1 to the extent permitted thereunder;
(b) if the registration referred to in the first sentence of this
Section 3.2 is to be an underwritten registration on behalf of MIPS, and a
nationally recognized investment banking or commercial banking firm selected by
MIPS advises MIPS in writing that, in such firm's good faith view, all or a part
of such Registrable Securities cannot be sold and the inclusion of all or a part
of such Registrable Securities in such registration would be likely to have an
adverse effect upon the price, timing or distribution of the offering and sale
of the Other Securities then contemplated, MIPS shall include in such
registration:
(i) first, all Other Securities MIPS proposes to sell for its own
account ("Company Securities"),
(ii) second, up to the full number of Registrable Securities held by
Holders constituting SGI Entities that are requested to be included in such
registration (Registrable Securities that are so held being sometimes
referred to herein as "Holder Securities") in excess of the number of
Company Securities to be sold in such offering which, in the good faith
view of such investment banking or commercial banking firm, can be sold
without adversely affecting such offering (and (x) if such number is less
than the full number of such Holder Securities, such number shall be
allocated by SGI among such SGI Entities and (y) in the event that such
investment banking or commercial banking firm advises that less than all of
such Holder Securities may be included in such offering, such SGI Entities
may withdraw their request for registration of their Registrable Securities
under this Section 3.2 and 90 days subsequent to the effective date of the
registration statement for the registration of such Other Securities
request
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that such registration be effected as a registration under Section 3.1 to
the extent permitted thereunder,
(iii) third, up to the full number of Registrable Securities held by
Holders (other than SGI Entities) of Registrable Securities that are
requested to be included in such registration in excess of the number of
Company Securities and Holder Securities to be sold in such offering which,
in the good faith view of such investment banking or commercial banking
firm, can be so sold without so adversely affecting such offering (and (x)
if such number is less than the full number of such Registrable Securities,
such number shall be allocated pro rata among such Holders on the basis of
the number of Registrable Securities requested to be included therein by
each such Holder and (y) in the event that such investment banking firm
advises that less than all of such Registrable Securities may be included
in such offering, such Holders may withdraw their request for registration
of their Registrable Securities under this Section 3.2 and 90 days
subsequent to the effective date of the registration statement for the
registration of such Other Securities request that such registration be
effected as a registration under Section 3.1 to the extent permitted
thereunder) and
(iv) fourth, up to the full number of the Other Securities (other than
Company Securities), if any, in excess of the number of Company Securities
and Registrable Securities to be sold in such offering which, in the good
faith view of such investment banking firm, can be so sold without so
adversely affecting such offering (and, if such number is less than the
full number of such Other Securities, such number shall be allocated pro
rata among the holders of such Other Securities (other than Company
Securities) on the basis of the number of securities requested to be
included therein by each such Holder);
(c) if the registration referred to in the first sentence of this
Section 3.2 is to be an underwritten secondary registration on behalf of holders
of Other Securities (the "Other Holders"), and the lead underwriter or managing
underwriter advises MIPS in writing that in their good faith view, all or a part
of such additional securities cannot be sold and the inclusion of such
additional securities in such registration would be likely to have an adverse
effect on the price, timing or distribution of the offering and sale of the
Other Securities then contemplated, MIPS shall include in such registration the
number of securities (including Registrable Securities) that such underwriters
advise can be so sold without adversely affecting such offering, allocated pro
rata among the Other Holders and the Holders of Registrable Securities on the
basis of the number of securities (including Registrable Securities) requested
to be included therein by each Other Holder and each Holder of Registrable
Securities; provided, that if such registration statement is to be filed at any
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time after a SGI Ownership Reduction, if such Other Holders have requested that
such registration statement be filed pursuant to demand registration rights
granted to them by MIPS, MIPS shall include in such registration (i) first,
Other Securities sought to be included therein by the Other Holders pursuant
to the exercise of such demand registration rights, (ii) second, the number of
Holder Securities sought to be included in such registration in excess of the
number of Other Securities sought to be included in such registration by the
Other
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Holders which in the good faith view of such investment banking or
commercial banking firm, can be so sold without so adversely affecting such
offering (and (x) if such number is less than the full number of such Holder
Securities, such number shall be allocated by SGI among such SGI Entities and
(y) in the event that such investment banking or commercial banking firm advises
that less than all of such Holder Securities may be included in such offering,
such SGI Entities may withdraw their request for registration of their
Registrable Securities under this Section 3.2 and 90 days subsequent to the
effective date of the registration statement for the registration of such Other
Securities request that such registration be effected as a registration under
Section 3.1 to the extent permitted thereunder) and (iii) third, the number of
Registrable Securities sought to be included in such registration by Holders
(other than SGI Entities) of Registrable Securities in excess of the number of
Other Securities and the number of Holder Securities sought to be included in
such registration which, in the good faith view of such investment banking or
commercial banking firm, can be so sold without so adversely affecting such
offering (and (x) if such number is less than the full number of such
Registrable Securities, such number shall be allocated pro rata among such
Holders on the basis of the number of Registrable Securities requested to be
included therein by each such Holder and (y) in the event that such investment
banking or commercial banking firm advises that less than all of such
Registrable Securities may be included in such offering, such Holders may
withdraw their request for registration of their Registrable Securities under
this Section 3.2 and 90 days subsequent to the effective date of the
registration statement for the registration of such Other Securities request
that such registration be effected as a registration under Section 3.1 to the
extent permitted thereunder);
(d) MIPS shall not be required to effect any registration of
Registrable Securities under this Section 3.2 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
executive or employee benefit or compensation plans; and
(e) no registration of Registrable Securities effected under this
Section 3.2 shall relieve MIPS of its obligation to effect a registration of
Registrable Securities pursuant to Section 3.1.
Section 3.3. Expenses. Except as provided herein and except for
--------
underwriting discounts and commissions attributable to the Registrable
Securities sold by the Holders, MIPS shall pay all Registration Expenses with
respect to a particular offering (or proposed offering). Notwithstanding the
foregoing, each Holder and MIPS shall be responsible for its own internal
administrative and similar costs, which shall not constitute Registration
Expenses.
Section 3.4. Registration and Qualification. If and whenever MIPS is
------------------------------
required to effect the registration of any Registrable Securities under the
Securities Act as provided in Sections 3.1 or 3.2, MIPS shall as promptly as
practicable:
(a) prepare, file and use its reasonable best efforts to cause to
become effective a registration statement under the Securities Act relating to
the Registrable Securities to be offered;
12
(b) prepare and file with the SEC 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 and to comply
with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities until the earlier of (A) such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition set forth in such registration statement and (B) the
expiration of six months after such registration statement becomes effective;
provided, that such six-month period shall be extended for such number of days
--------
that equals the number of days elapsing from (x) the date the written notice
contemplated by paragraph (f) below is given by MIPS to (y) the date on which
MIPS delivers to the Holders of Registrable Securities the supplement or
amendment contemplated by paragraph (f) below;
(c) furnish to the Holders of Registrable Securities and to any
underwriter of such Registrable Securities such number of conformed copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such registration
statement or prospectus, and such other documents, as the Holders of Registrable
Securities or such underwriter may reasonably request, and upon request a copy
of any and all transmittal letters or other correspondence to or received from,
the SEC or any other governmental agency or self-regulatory body or other body
having jurisdiction (including any domestic or foreign securities exchange)
relating to such offering;
(d) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such U.S. jurisdictions as the Holders of such
Registrable Securities or any underwriter to such Registrable Securities shall
request, and use its reasonable best efforts to obtain all appropriate
registrations, permits and consents in connection therewith, and do any and all
other acts and things which may be necessary or advisable to enable the Holders
of Registrable Securities or any such underwriter to consummate the disposition
in such jurisdictions of its Registrable Securities covered by such registration
statement; provided, that MIPS shall not for any such purpose be required to
--------
qualify generally to do business as a foreign corporation in any such
jurisdiction wherein it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) (i) use its best efforts to furnish to each Holder of Registrable
Securities included in such registration (each, a "Selling Holder") and to any
underwriter of such Registrable Securities an opinion of independent counsel for
MIPS addressed to each Selling Holder and dated the date of the closing under
the underwriting agreement (if any) (or if such offering is not underwritten,
dated the effective date of the registration statement) and (ii) use its best
efforts to furnish to each Selling Holder a "cold comfort" letter addressed to
each Selling Holder and signed by the independent public accountants who have
audited the financial statements of MIPS included in such registration
statement,
13
in each such case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities and such other matters as the Selling Holders may reasonably
request and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements;
(f) as promptly as practicable, notify the Selling Holders in writing
(i) at any time when a prospectus relating to a registration pursuant to
Sections 3.1 or 3.2 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 any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and (ii) of any request by the SEC or any
other regulatory body or other body having jurisdiction for any amendment of or
supplement to any registration statement or other document relating to such
offering, and in either such case, at the request of the Selling Holders prepare
and furnish to the Selling Holders a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(g) enter into customary agreements (including if the method of
distribution is by means of an underwriting, an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of the Registrable Securities to be so
included in the registration statement;
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders to the extent not already provided, as soon as reasonably practicable,
but not later than eighteen (18) months after the effective date of the
registration statement, an earnings statement covering the period of at least
twelve (12) months beginning with the first full month after the effective date
of such registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act;
(i) use its best efforts to list all such Registrable Securities
covered by such registration on each securities exchange and automated inter-
dealer quotation system on which a class of common equity securities of MIPS is
then listed;
(j) to the extent reasonably requested by the lead or managing
underwriters, send appropriate officers of MIPS to attend any "road shows"
scheduled in connection with any such registration, with all out-of-pocket costs
and expense incurred by MIPS or such officers in connection with such attendance
to be paid by MIPS; and
14
(k) furnish for delivery in connection with the closing of any
offering of Registrable Securities pursuant to a registration effected pursuant
to Sections 3.1 or 3.2 unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be requested by
the Selling Holders or the underwriters.
Section 3.5. Conversion of Other Securities, Etc. In the event that
------------------------------------
any Holder offers any options, rights, warrants or other securities issued by it
or any other Person that are offered with, convertible into or exercisable or
exchangeable for any Registrable Securities, the Registrable Securities
underlying such options, rights, warrants or other securities shall continue to
be eligible for registration pursuant to Sections 3.1 and 3.2.
Section 3.6. Underwriting; Due Diligence. (a) If requested by the
---------------------------
underwriters for any underwritten offering of Registrable Securities pursuant to
a registration requested under this Article III, MIPS shall enter into an
underwriting agreement with such underwriters for such offering, which agreement
will contain such representations and warranties by MIPS and such other terms
and provisions as are customarily contained in underwriting agreements of MIPS
to the extent relevant and as are customarily contained in underwriting
agreements generally with respect to secondary distributions to the extent
relevant, including, without limitation, indemnification and contribution
provisions substantially to the effect and to the extent provided in Section
3.7, and agreements as to the provision of opinions of counsel and accountants'
letters to the effect and to the extent provided in Section 3.4(e). The Selling
Holders on whose behalf the Registrable Securities are to be distributed by such
underwriters shall be parties to any such underwriting agreement and the
representations and warranties by, and the other agreements on the part of, MIPS
to and for the benefit of such underwriters, shall also be made to and for the
benefit of such Selling Holders. Such underwriting agreement shall also contain
such representations and warranties by such Selling Holders and such other terms
and provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, when relevant, including, without
limitation, indemnification and contribution provisions substantially to the
effect and to the extent provided in Section 3.7.
(b) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act pursuant to this Article III, MIPS shall give the Holders of such
Registrable Securities and the underwriters, if any, and their respective
counsel and accountants, such reasonable and customary access to its books and
records and such opportunities to discuss the business of MIPS with its officers
and the independent public accountants who have certified the financial
statements of MIPS as shall be necessary, in the opinion of such Holders and
such underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
Section 3.7. Indemnification and Contribution. (a) In the case of
--------------------------------
each offering of Registrable Securities made pursuant to this Article III, MIPS
agrees to indemnify and hold harmless, to the extent permitted by law, each
Selling Holder, each underwriter of Registrable Securities so offered
15
and each Person, if any, who controls any of the foregoing Persons within the
meaning of the Securities Act and the officers, directors, affiliates,
employees and agents of each of the foregoing, against any and all losses,
liabilities, costs (including reasonable attorney's fees and disbursements),
claims and damages, joint or several, to which they or any of them may become
subject, under the Securities Act or otherwise, including any amount paid in
settlement of any litigation commenced or threatened, insofar as such losses,
liabilities, costs, claims and damages (or actions or proceedings in respect
thereof, whether or not such indemnified Person is a party thereto) arise out
of or are based upon any untrue statement by MIPS or alleged untrue statement
by MIPS of a material fact contained in the registration statement (or in any
preliminary or final prospectus included therein) or in any offering
memorandum or other offering document relating to the offering and sale of
such Registrable Securities prepared by MIPS or at its direction, or any
amendment thereof or supplement thereto, or in any document incorporated by
reference therein, or any omission by MIPS or alleged omission by MIPS to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however that MIPS shall
not be liable to any Person in any such case to the extent that any such loss,
liability, cost, claim or damage arises out of or relates to any untrue
statement or alleged untrue statement, or any omission, if such statement or
omission shall have been made in reliance upon and in conformity with
information relating to a Selling Holder, another holder of securities
included in such registration statement or underwriter furnished in writing to
MIPS by or on behalf of such Selling Holder, other holder or underwriter
specifically for use in the registration statement (or in any preliminary or
final prospectus included therein), offering memorandum or other offering
document, or any amendment thereof or supplement thereto. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of any Selling Holder, any other holder or any underwriter and shall
survive the transfer of such securities. The foregoing indemnity agreement is
in addition to any liability that MIPS may otherwise have to each Selling
Holder, other holder or underwriter of the Registrable Securities or any
controlling person of the foregoing and the officers, directors, affiliates,
employees and agents of each of the foregoing; provided, further, that, in the
-------- -------
case of an offering with respect to which a Selling Holder has designated the
lead or managing underwriters (or a Selling Holder is offering Registrable
Securities directly, without an underwriter), this indemnity does not apply to
any loss, liability, cost, claim or damage arising out of or relating to any
untrue statement or alleged untrue statement or omission or alleged omission in
any preliminary prospectus or offering memorandum if a copy of a final
prospectus or offering memorandum was not sent or given by or on behalf of any
underwriter (or such Selling Holder or other holder, as the case may be) to such
Person asserting such loss, liability, cost, claim or damage at or prior to the
written confirmation of the sale of the Registrable Securities as required by
the Securities Act and such untrue statement or omission had been corrected in
such final prospectus or offering memorandum.
(b) In the case of each offering made pursuant to this Agreement,
each Selling Holder, by exercising its registration rights hereunder, agrees to
indemnify and hold harmless, and to cause each underwriter of Registrable
Securities included in such offering (in the same manner and to the same extent
as set forth in Section 3.7(a)) to agree to indemnify and hold harmless, MIPS,
each other underwriter who participates in such offering, each other Selling
Holder or other holder with securities
16
included in such offering and in the case of an underwriter, such Selling
Holder or other holder, and each Person, if any, who controls any of the
foregoing within the meaning of the Securities Act and the officers,
directors, affiliates, employees and agents of each of the foregoing, against
any and all losses, liabilities, costs (including reasonable attorney's fees
and disbursements), claims and damages to which they or any of them may become
subject, under the Securities Act or otherwise, including any amount paid in
settlement of any litigation commenced or threatened, insofar as such losses,
liabilities, costs, claims and damages (or actions or proceedings in respect
thereof, whether or not such indemnified Person is a party thereto) arise out
of or are based upon any untrue statement or alleged untrue statement by such
Selling Holder or underwriter, as the case may be, of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) or in any offering memorandum or other offering
document relating to the offering and sale of such Registrable Securities
prepared by MIPS or at its direction, or any amendment thereof or supplement
thereto, or any omission by such Selling Holder or underwriter, as the case
may be, or alleged omission by such Selling Holder or underwriter, as the case
may be, of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent
that such untrue statement of a material fact is contained in, or such
material fact is omitted from information relating to such Selling Holder or
underwriter, as the case may be, furnished to MIPS in writing by or on behalf
of such Selling Holder or underwriter, as the case may be, specifically for
use in such registration statement (or in any preliminary or final prospectus
included therein), offering memorandum or other offering document, or any
amendment thereof or supplement thereto. The foregoing indemnity is in
addition to any liability which such Selling Holder or underwriter, as the
case may be, may otherwise have to MIPS, or controlling persons and the
officers, directors, affiliates, employees, and agents of each of the
foregoing; provided, however, that, in the case of an offering made pursuant
-------- -------
to this Agreement with respect to which MIPS has designated the lead or
managing underwriters (or MIPS is offering securities directly, without an
underwriter), this indemnity does not apply to any loss, liability, cost,
claim, or damage arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary prospectus
or offering memorandum if a copy of a final prospectus or offering memorandum
was not sent or given by or on behalf of any underwriter (or MIPS, as the case
may be) to such Person asserting such loss, liability, cost, claim or damage
at or prior to the written confirmation of the sale of the Registrable
Securities as required by the Securities Act and such untrue statement or
omission had been corrected in such final prospectus or offering memorandum.
(c) Each party indemnified under paragraph (a) or (b) above shall,
promptly after receipt of notice of a claim or action against such indemnified
party in respect of which indemnity may be sought hereunder, notify the
indemnifying party in writing of the claim or action; provided, that the failure
--------
to notify the indemnifying party shall not relieve it from any liability that it
may have to an indemnified party under this Section 3.7 (except that the failure
to notify an indemnifying party promptly of the commencement of any such action
to the extent prejudicial to the indemnifying party's ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party to the extent the indemnifying party is prejudiced under this
Section 3.7, but the omission so to notify the
17
indemnifying party well not relieve it of any liability that it may have to
any indemnified party otherwise than under this Section 3.7). If any such
claim or action shall be brought against an indemnified party, and it shall
have notified the indemnifying party thereof, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified
party and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party). After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 3.7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation. If the indemnifying
party does not assume the defense of such claim or action, it is understood
that the indemnifying party shall not, in connection with any one such claim
or action or separate but substantially similar or related claims or actions
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to one separate firm of local attorneys in each
such jurisdiction) at any time for all such indemnified parties. Any
indemnifying party against whom indemnity may be sought under this Section 3.7
shall not be liable to indemnify an indemnified party if such indemnified
party settles such claim or action without the consent of the indemnifying
party, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 3.7 shall for
any reason be unavailable (other than in accordance with its terms) to an
indemnified party in respect of any loss, liability, cost, claim or damage
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, cost, claim or damage in
such proportion as shall be appropriate to reflect (i) the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other hand or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or if the indemnified party failed to give the
notice required under paragraph (c) above, the relative benefits and the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other with respect to the statements or omissions which resulted in
such loss, liability, cost, claim or damage as well as any other relevant
equitable considerations. The relative benefits received by the indemnifying
party and the indemnified party shall be deemed to be in the same respective
proportion as the net proceeds (before deducting expenses) of the offering
received by such party (or, in the case of an underwriter, such underwriter's
discounts and commissions) bear to the aggregate offering price of the
Registrable Securities or Other Securities. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the indemnifying party on the one hand or the
indemnified party on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission, but not by reference to any indemnified party's stock
ownership in MIPS. The amount paid or payable by an indemnified party
18
as a result of the loss, cost, claim, damage or liability, or action in
respect thereof, referred to above in this paragraph (d) shall be deemed to
include, for purposes of this paragraph (d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 3.7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediate preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) Indemnification and contribution similar to that specified in the
preceding paragraphs of this Section 3.7 (with appropriate modifications) shall
be given by MIPS, the Selling Holders and underwriters with respect to any
required registration or other qualification of securities under any state law
or regulation or governmental authority.
(f) In no event shall SGI be liable pursuant to this Section 3.7 for
any amounts in excess of the net proceeds received by SGI pursuant to its sales
of securities in the offering in connection with which its liability hereunder
arises.
(g) The obligations of the parties under this Section 3.7 shall be in
addition to any liability which any party may otherwise have to any other party.
Section 3.8. Rule 144 and Form S-3. Commencing 90 days after the
---------------------
Initial Public Offering Date, MIPS shall use its best efforts to ensure that the
conditions to the availability of Rule 144 set forth in paragraph (c) thereof
shall be satisfied. Upon the request of any Holder of Registrable Securities,
MIPS will deliver to such Holder a written statement as to whether it has
complied with such requirements. MIPS further agrees to use its reasonable
efforts to cause all conditions to the availability of Form S-3 (or any
successor form) under the Securities Act of the filing of registration
statements under this Agreement to be met as soon as practicable after the
Initial Public Offering Date. Notwithstanding anything contained in this Section
3.8, MIPS may deregister under Section 12 of the Securities Exchange Act of
1934, as amended, if it then is permitted to do so pursuant to said Act and the
rules and regulations thereunder.
Section 3.9. Transfer of Registration Rights. Any Holder may
-------------------------------
transfer all or any portion of its rights under Article III to any transferee of
a number of Registrable Securities owned by such Holder exceeding five percent
(5%) of the outstanding class or series of such securities at the time of
transfer (each transferee that receives such minimum number of Registrable
Securities, a "Transferee"); provided, that each Transferee of Registrable
--------
Securities (other than SGI Entities) to which Registrable Securities are
transferred, sold or assigned directly by a SGI Entity (such Transferee,
19
a "SGI Transferee"), together with any Affiliate of such SGI Transferee (and
any subsequent direct or indirect Transferees of Registrable Securities from
such SGI Transferee and any Affiliates thereof) shall be entitled to request
the registration of Registrable Securities pursuant to this Section 3.9 only
once prior to a SGI Ownership Reduction and thereafter shall only be entitled
to request the registration of Registrable Securities pursuant to Section
3.1(a)(ii) and, provided, further, that no Transferee shall be entitled to
request registration pursuant to this Section 3.9 for an amount of Registrable
Securities equal to less than $1,000,000. Any transfer of registration rights
pursuant to this Section 3.9 shall be effective upon receipt by MIPS of (i)
written notice from such Holder stating the name and address of any Transferee
and identifying the number of Registrable Securities with respect to which the
rights under this Agreement are being transferred and the nature of the rights
so transferred and (ii) a written agreement from such Transferee to be bound
by the terms of this Article III and Sections 5.3, 5.4, 5.9, 5.10, and 5.12 of
this Agreement. The Holders may exercise their rights hereunder in such
priority as they shall agree upon among themselves.
Section 3.10. Holdback Agreement. If any registration pursuant to
------------------
this Article III shall be in connection with an underwritten public offering of
Registrable Securities, each Selling Holder agrees not to effect any public sale
or distribution, including any sale under Rule 144, of any equity security of
MIPS or any security convertible into or exchangeable or exercisable for any
equity security of MIPS, in the case of Registrable Securities (otherwise than
through the registered public offering then being made), within 7 days prior to
or 90 days (or such lesser period as the lead or managing underwriters may
permit) after the effective date of the registration statement (or the
commencement of the offering to the public of such Registrable Securities in the
case of Rule 415 offerings). MIPS hereby also so agrees and agrees to cause
each other holder of equity securities or securities convertible into or
exchangeable or exercisable for such securities purchased from MIPS otherwise
than in a public offering to so agree; provided that, subject to Section 3.6(a)
-------------
hereof, MIPS shall not be so restricted from effecting any public sale or
distribution of any security in connection with any merger, acquisition,
exchange offer, subscription offer, dividend reinvestment plan or stock option
or other executive or employee benefit or compensation plan.
Section 3.11. Registration of Preferred Stock. MIPS agrees that it
-------------------------------
shall from time to time enter into one or more agreements with SGI and/or any
Transferee, if any, in form and substance reasonably satisfactory to the parties
thereto, granting to SGI or the Transferee, as the case may be, registration
rights for the registration of any shares of preferred stock of MIPS that may
hereafter be owned, directly or indirectly, by SGI or the Transferee, as the
case may be, substantially upon the same terms and conditions as those contained
in Article III for the benefit of SGI.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS
Section 4.1. No Violations. (a) For so long as the Ownership
-------------
Percentage is equal to or greater than 50%, SGI covenants and agrees that it
will not take any action or enter into any commitment
20
or agreement which may reasonably be anticipated to result, with or without
notice and with or without lapse of time or otherwise, in a contravention or
event of default by any SGI Entity of (i) any provision of applicable law or
regulation, including but not limited to provisions pertaining to the Internal
Revenue Code of 1986, as amended, or the Employee Retirement Income Security
Act of 1974, as amended, (ii) any provision of SGI's certificate of
incorporation or bylaws, (iii) any credit agreement or other material
instrument binding upon SGI, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over SGI or any of
their respective assets.
(b) MIPS and SGI agree to provide to the other any information and
documentation requested by the other for the purpose of evaluating and ensuring
compliance with Section 4.1(a) hereof.
(c) Notwithstanding the foregoing Sections 4.1(a) and 4.1(b), nothing
in this Agreement is intended to limit or restrict in any way SGI's right's as a
shareholder of MIPS.
Section 4.2. Confidentiality. Except as required by law, regulation
---------------
or legal or judicial process, SGI agrees that neither it nor any SGI Entity nor
any of their respective directors, officers or employees will without the prior
written consent of MIPS disclose to any Person any material, non-public
information concerning the business or affairs of MIPS acquired from any
director, officer or employee of MIPS (including any director, officer or
employee of MIPS who is also a director, officer or employee of SGI).
ARTICLE V
MISCELLANEOUS
Section 5.1. Limitation of Liability. Neither SGI nor MIPS shall be
-----------------------
liable to the other for any special, indirect, incidental or consequential
damages of the other arising in connection with this Agreement.
Section 5.2. Subsidiaries. SGI agrees and acknowledges that SGI
------------
shall be responsible for the performance by each SGI Entity of the obligations
hereunder applicable to such SGI Entity.
Section 5.3. Amendments. This Agreement may not be amended or
----------
terminated orally, but only by a writing duly executed by or on behalf of the
parties hereto. Any such amendment shall be validly and sufficiently authorized
for purposes of this Agreement if it is signed on behalf of SGI and MIPS by any
of their respective presidents or vice presidents.
Section 5.4. Term. This Agreement shall remain in effect until all
----
Registrable Securities held by Holders have been transferred by them to Persons
other than Transferees; provided, that the provisions of Section 3.7 shall
--------
survive any such expiration.
21
Section 5.5. Severability. If any provision of this Agreement or the
------------
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement or such provision
of the application of such provision to such party or circumstances, other than
those to which it is so determined to be invalid, illegal or unenforceable,
shall remain in full force and effect to the fullest extent permitted by law and
shall not be affected thereby, unless such a construction would be unreasonable.
Section 5.6. Notices. All notices and other communications required
-------
or permitted hereunder shall be in writing, shall be deemed duly given upon
actual receipt, and shall be delivered (a) in person, (b) by registered or
certified mail, postage prepaid, return receipt requested or (c) by facsimile or
other generally accepted means of electronic transmission (provided that a copy
of any notice delivered pursuant to this clause (c) shall also be sent pursuant
to clause (b)), addressed as follows:
(a) If to MIPS, to:
MIPS
[ ]
Attention: [ ]
Telecopy No.:
(b) If to SGI, to:
SGI
000 Xxxxx Xxxxxxxxx Xxxx.
Xxxxxxxx Xxxx, XX 00000
Attention: General Counsel
Telecopy No.:
or to such other addresses or telecopy numbers as may be specified by
like notice to the other parties.
Section 5.7. Further Assurances. SGI and MIPS shall execute,
------------------
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such instruments and take such other action as may be necessary or advisable to
carry out their obligations under this Agreement and under any exhibit, document
or other instrument delivered pursuant hereto.
Section 5.8. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which shall be deemed an original instrument,
but all of which together shall constitute but one and the same agreement.
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Section 5.9. Governing Law. This Agreement and the transactions
-------------
contemplated hereby shall be construed in accordance with, and governed by, the
laws of the State of Delaware.
Section 5.10. Entire Agreement. This Agreement constitutes the
----------------
entire understanding of the parties hereto with respect to the subject matter
hereof.
Section 5.11. Successors. This Agreement shall be binding upon, and
----------
shall inure to the benefit of, the parties hereto and their respective
successors and assigns. Nothing contained in this Agreement, express or
implied, is intended to confer upon any other person or entity any benefits,
rights or remedies.
Section 5.12. Specific Performance. The parties hereto acknowledge
--------------------
and agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any other remedy to which they may be entitled
at law or equity.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
SILICON GRAPHICS, INC.
By: _________________________
Name:
Title:
MIPS TECHNOLOGIES, INC.
By: _________________________
Name:
Title:
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