Exhibit 4.1
CIRRUS LOGIC, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made effective as
of July ____, 1999 (the "Effective Date"), by and among Cirrus Logic, Inc., a
Delaware corporation (the "Company"), and the individuals and entities who are
shareholders of AudioLogic, Inc. ("AudioLogic") set forth on Schedule A hereto
(the "Shareholders").
RECITALS
--------
A. The Company and AudioLogic are parties to the Agreement and Plan of
Reorganization dated as of June 29, 1999 (together with the exhibits and
schedules thereto, the "Merger Agreement"). The Company will acquire AudioLogic
through a statutory merger of AL Acquisition Corporation, a wholly-owned
subsidiary of the Company, into AudioLogic.
B. As partial consideration for such acquisition, the Shareholders will
receive shares of Common Stock, $.001 par value, of the Company after the
Closing Date (the "Closing Stock") and, subject to certain conditions, shares of
Common Stock, $0.001 par value, following the first anniversary of the Closing
Date (the "Contingent Stock") (collectively, the "Shares").
All capitalized terms not defined herein shall have the meanings set forth
in the Merger Agreement, unless otherwise referred to another agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, all parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall
-------------------
have the following respective meanings:
"Black-Out Period" means any period during which executive officers
----------------
and directors of the Company are generally prohibited from engaging in trades in
the Company's securities pursuant to the Company's Xxxxxxx Xxxxxxx Policy,
including, without limitation, black-out periods for management related to
quarterly reports of financial results of the Company.
"Commission" means the Securities and Exchange Commission or any other
----------
Federal agency at the time administering the Securities Act.
"Effective Time" shall mean the date on which the Merger becomes
--------------
effective under the laws of Colorado.
-1-
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
or any similar Federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Family Transfer" means a transfer to a spouse, lineal descendent, or
---------------
a trust for the benefit of transferor, spouse or lineal descendent, provided
that in the case of each such transfer, the transfer is made in compliance with
applicable federal and state securities law and the transferee agrees to be
bound by the terms of this Agreement.
"Holder" means the Shareholders, for so long as the Shareholders hold
------
any Registrable Securities, or any person holding Registrable Securities to whom
the rights under this Agreement have been transferred in accordance with Section
11 hereof.
"Xxxxxxx Xxxxxxx Policy" means the policy adopted by the Company's
----------------------
Board of Directors, as such may be amended from time to time, relating to
transactions in the Company's securities by the Company's executive officers and
directors.
"Permitted Window" means the period during which a Holder entitled to
----------------
sell Registrable Securities pursuant to a registration statement under Section
4(a) of this Agreement shall be permitted to sell Registrable Securities
pursuant to such a registration. Except as otherwise set forth in this
Agreement, a Permitted Window shall (i) commence upon the tenth business day
following receipt by the Company of a written notice from a Holder to the
Company that such Holder intends to sell Shares pursuant to such registration
statement, or such earlier date as the Company may agree to (or, if such date
falls within a Black-Out Period and the Holder is subject to such Black-Out
Period, then upon the termination of such Black-Out Period), and shall (ii)
terminate upon the commencement of the next occurring Black-Out Period, if the
Holder is subject to such Black-Out Period. A Holder shall not be subject to a
Black-Out Period unless such Holder is an executive officer or director of the
Company. Except as stated herein, without the Company's written consent, a
Permitted Window shall not commence prior to the first anniversary of the
Effective Date.
"Registrable Securities" means the Shares and any Common Stock of the
----------------------
Company issued or issuable in respect thereof upon any conversion, stock split,
stock dividend, recapitalization, merger or other reorganization; provided,
--------
however, that securities shall only be treated as Registrable Securities if and
-------
so long as they have not been registered or sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction.
"Register," "registered" and "registration" refer to a registration
-------- ---------- ------------
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" means all expenses, except as otherwise stated
---------------------
below, incurred by the Company in complying with Section 4 and Section 5 hereof,
including without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits incident
to or required by any such registration (but excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company).
"Restricted Securities" means the securities of the Company required
---------------------
to bear a legend as described in Section 2 hereof.
-2-
"Securities Act" means the Securities Act of 1933, as amended, or any
--------------
similar Federal rule or statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means all underwriting discounts, selling
----------------
commissions and stock transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for any Holder.
2. Restrictive Legend. Each certificate representing the Shares or any
------------------
other securities issued in respect of such securities upon any stock split,
stock dividend, recapitalization, merger or other reorganization shall be
stamped or otherwise imprinted with legends restricting the transferability
thereof, in substantially the form set forth below:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. SUCH SHARES GENERALLY MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING
THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
In addition, each certificate representing the Shares held by Holders
who are parties to that certain Stock Transfer Restriction Agreement shall be
stamped or otherwise imprinted with the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFER PURSUANT TO AN AGREEMENT BETWEEN THE HOLDER AND THE
COMPANY.
Each Holder consents to the Company making a notation on its records and
giving instructions to any transfer agent of its capital stock in order to
implement the restrictions on transfer established in this Agreement and the
Merger Agreement.
3. Notice of Proposed Transfers. The holder of each certificate
----------------------------
representing Restricted Securities by acceptance thereof agrees to comply in
all respects with the provisions of this Section 3. Without in any way
limiting the immediately preceding sentence or the provisions of Section 2, no
sale, assignment, transfer or pledge (other than (i) a sale made pursuant to a
registration statement filed under the Securities Act and declared effective
by the Commission or (ii) a sale made in accordance with the applicable
provisions of Rule 144 and Rule 145) of Restricted Securities shall be made by
any holder thereof to any person unless such person shall first agree in
writing to be bound by the restrictions of this Agreement, including without
limitation this Section 3. Prior to any proposed sale, assignment, transfer or
pledge of any Restricted Securities, unless there is in effect a registration
statement under the Securities Act covering the proposed transfer, the holder
thereof shall give written notice to the Company of such Holder's intention to
effect such transfer, sale, assignment or pledge. Each such notice shall
describe the manner and circumstances of the proposed transfer, sale,
assignment or pledge in sufficient detail, and, if requested by the Company,
the holder shall also provide, at such Holder's expense, a written opinion of
legal counsel (who shall be, and whose legal opinion shall be, reasonably
satisfactory to the Company) addressed to the Company, to the effect that the
proposed transfer of the Restricted Securities may be effected without
-3-
registration under the Securities Act and under applicable state securities
laws and regulations. Upon delivery to the Company of such notice and, if
required, such opinion, the holder of such Restricted Securities shall be
entitled to transfer such Restricted Securities in accordance with the terms
of such notice. The Company agrees that it shall not request such an opinion
of counsel with respect to (i) a transfer not involving a change in beneficial
ownership, (ii) a transaction involving the distribution without consideration
of Restricted Securities by the holder to its constituent equity holders in
proportion to their equity holdings in the holder or (iii) a transaction
involving the transfer without consideration of Restricted Securities by an
individual holder during such Holder's lifetime by way of gift or on death by
will or intestacy. Each certificate evidencing the Restricted Securities
transferred as above provided shall bear, except if such transfer is made
pursuant to Rule 144, the appropriate restrictive legend set forth in Section
2 above, except that such certificate shall not bear such restrictive legend
if, in the opinion of counsel for such holder and counsel for the Company,
such legend is not required in order to establish or ensure compliance with
any provision of the Securities Act.
4. Registration on Form S-3.
------------------------
(a) Registration. The Company shall use commercially reasonable to
------------
efforts cause a registration statement on Form S-3 covering all Registrable
Securities to be filed and declared effective no later than 30 days following
the Closing Date, and the initial Permitted Window (the "Initial Permitted
Window") for trading the Shares shall commence as of the effective date of
such registration (or, if such date falls within a Blackout Period and the
Holder is subject to such Black-Out Period, then upon the termination of such
Blackout Period) and continue until the commencement of the next occurring
Black-Out Period. The Company shall use commercially reasonable efforts to
keep such registration statement effective, in the case of the Closing Stock,
until the first anniversary of the Closing Date, and in the case of the
Contingent Stock, if any, until the second anniversary of the Closing Date, or
such earlier date upon which no Holder holds any Registrable Securities. After
the Initial Permitted Window, upon receipt of a notice from any Holder that
such Holder intends to sell Registrable Securities during a Permitted Window,
the Company shall, prior to the commencement of the Permitted Window, inform
the other Holders of the commencement of the Permitted Window. The Company
shall notify each of the Holders of the termination of a Permitted Window no
later than the time the Company notifies its executive officers and directors
of the corresponding Black-Out Period; provided, however, that the Company
-------- -------
need not notify the Holders who are subject to Black-Out Periods of regularly
scheduled Black-Out Periods relating to the closing of the Company's fiscal
quarters, which Black-Out Periods begin thirty days prior to the end of each
fiscal quarter and continue until 48 hours after the announcement of results
of operations for such period.
(b) Limitations on Registration and Sale of Registrable Securities.
--------------------------------------------------------------
Notwithstanding anything in this Agreement to the contrary, the Company's
obligations and the Holders' rights under this Section 4 are subject to the
limitations and qualifications set forth below, which may be waived in writing
by the Company.
(i) The Holders will sell Registrable Securities pursuant to a
registration effected hereunder only during a Permitted Window; provided that
no Permitted Window restrictions shall apply to Registrable Securities
saleable under Rule 144 or any other applicable public resale registration
exemption.
(ii) If the Company furnishes to the Holders a certificate signed by
the President of the Company stating that, in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company for a Form S-3 registration to be effected, or a Permitted Window to
be in effect, due to (A) the existence of a material development or potential
material development involving the Company which the Company would be
obligated to disclose in the prospectus contained in the Form S-3 registration
statement, which disclosure would in the good faith judgment of the Board of
Directors be
-4-
premature or otherwise inadvisable, (B) the existence of other facts or
circumstances as a result of which the prospectus contained or to be contained
in the Form S-3 registration statement includes or would include an untrue
statement of a material fact or omits or would omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made or then
existing or (C) the Company's bona fide intention to effect the filing of a
registration statement with the Commission within sixty (60) days of the
receipt of a notice from a Holder that it intends to sell Registrable
Securities during a Permitted Window, the Company may defer the filing of the
Form S-3 registration statement or delay the commencement of a Permitted
Window or may effect an early termination of a Permitted Window that has
commenced, as the case may be.
(iii) The obligations of the Company hereunder are conditioned upon its
being eligible to register its securities on Form S-3 at the time any such
registration is otherwise required hereunder; provided, however, that if the
-------- -------
Company ceases to be eligible to register its securities on Form S-3 at any
time during which any Holder would otherwise be entitled to sell Registrable
Securities pursuant to a registration in accordance with the terms of this
Agreement, the Company shall use its commercially reasonable efforts to become
eligible to register its securities on Form S-3 as soon as practicable.
(iv) At any time that the Company is obligated under this Agreement to
permit the Holders to sell Registrable Securities pursuant to a registration
statement on Form S-3, the Company may, instead of maintaining an effective
registration statement on Form S-3 for the benefit of the Holders, include
such Registrable Securities in a registration effected for the benefit of the
Company and/or other selling stockholders. In the event that such registration
is in connection with an underwritten offering, the Holders participating in
such registration shall enter into an underwriting agreement in customary form
with the managing underwriter selected by the Company, notwithstanding the
provisions of Section 4(c).
(v) Notwithstanding anything to the contrary in this Agreement, the
Company shall have no obligation to effect a registration hereunder, and no
Permitted Window will exist, with respect to any Registrable Securities during
the time that such Registrable Securities are subject to the escrow provisions
of the Merger Agreement (including any agreement which is an exhibit thereto),
and no Holder shall sell any such Registrable Securities pursuant to a
registration hereunder, or pursuant to Rule 144 or Rule 145, during any such
period.
(c) Underwriting. At the election of the Holders representing a
------------
majority of the Registrable Securities that are proposed to be sold during a
Permitted Window (the "Deciding Holders"), all sales of Registrable Securities
under this Section 4 during such Permitted Window shall be made through an
underwriting managed by an underwriter selected by the Deciding Holders and
acceptable to the Company (the "Managing Underwriter"). The Company shall,
together with all Holders proposing to distribute their Registrable Securities
though such underwriting, enter into an underwriting agreement in customary
form with the Managing Underwriter. If any Holder of Registrable Securities
disapproves of the terms of the underwriting, such person may elect to
withdraw therefrom by written notice to the Company. Any Holder so withdrawing
shall not sell any Registrable Securities pursuant to a registration effected
under this Agreement until after the completion of such underwritten
distribution.
(d) Registration Procedures. In connection with any registration required
-----------------------
under this Agreement, the Company shall take the actions set forth below.
(i) Prior to filing any registration statement, prospectus, amendment
or supplement with the Commission in connection with any registration
hereunder, the Company shall furnish to one counsel selected by the Holders of
a majority of the Registrable Securities copies of such documents.
-5-
(ii) The Company shall notify each Holder of any stop order issued or
threatened by the Commission and will take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered.
(iii) The Company shall comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by a
registration statement filed pursuant to this Agreement with respect to the
disposition of all Registrable Securities covered by such registration
statement in accordance with the intended methods of disposition by the
Holders as set forth in such registration statement.
(iv) The Company shall furnish to each Holder and each underwriter,
if any, of Registrable Securities covered by a registration statement filed
pursuant to this Agreement such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits thereto), and the prospectus included in such registration statement
(including each preliminary prospectus), in conformity with the requirements
of the Securities Act, and such other documents as a selling Holder may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holder.
(v) The Company shall use its best efforts to register or qualify
the Registrable Securities under the securities or "blue sky" laws of each
State of the United States of America as any of the Holders or underwriters,
if any, of the Registrable Securities covered by a registration statement
filed hereunder reasonably requests, and shall do any and all other acts and
things which may be reasonably necessary or advisable to enable each selling
Holder and each underwriter, if any, to consummate the disposition in such
States of the Registrable Securities owned by such selling Holders; provided
--------
that the Company shall not be required to (A) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but
for this subsection (v), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(vi) The Company shall immediately notify each Holder entitled to
sell Registrable Securities during a Permitted Window of the happening of any
event which comes to the Company's attention if, as a result of such event,
the prospectus included in the registration statement filed under this
Agreement contains any untrue statement of a material fact or omits to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the Company
shall promptly prepare and furnish to each Holder and file with the Commission
a supplement or amendment to such prospectus so that such prospectus will no
longer contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(vii) The Company shall take all such other reasonable and customary
actions as each Holder or the underwriters, if any, may reasonably request in
order to expedite or facilitate the disposition of the Registrable Securities
in accordance with the terms of this Agreement.
(viii) The Company shall make available for inspection by the
Holders, any underwriter participating in any disposition pursuant to a
registration statement filed under this Agreement, and any attorney,
accountant or other agent retained by such Holders or underwriters, all
financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries, as such person may reasonably request for
the purpose of confirming that such registration statement does not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, provided that the Company obtains
reasonably satisfactory assurances that such information will be used solely
for such purpose and will be held in confidence (except to the extent that it
is included in the registration statement). The Company shall cause
-6-
the officers, directors and employees of the Company and each of its
subsidiaries to supply such information and respond to such inquiries as any
Holder or underwriter may reasonably request or make for the purpose of
confirming that such registration statement does not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, provided that the Company obtains reasonably
satisfactory assurances that such information will be used solely for such
purpose and will be held in confidence (except to the extent that it is
included in the registration statement).
(ix) The Company shall use its commercially reasonable efforts to
obtain a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters of the type
customarily covered by "cold comfort" letters as the Holders or the
underwriters reasonably request.
(x) The Company shall otherwise use its commercially reasonable
efforts to comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period (which may begin with the
first fiscal quarter ending after the effective date of the registration
statement) of at least twelve months after the effective date of the
registration statement (as the term "effective date" is defined in Rule 158(c)
under the Securities Act), which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
5. Company Registration.
--------------------
(a) Notice of Registration. If at any time or from time to time,
----------------------
the Company shall determine to register any of its securities for its own
account (including, without limitation, all registrations in which other
selling shareholders are permitted to participate), other than (i) in
connection with the Company's registration on Form S-4, (ii) a registration
relating solely to employee benefit plans, or (iii) a registration relating
solely to a Commission Rule 145 transaction, (the "Company Registration"), the
Company will:
(A) promptly give to each Holder written notice thereof; and
(B) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, the Registrable Securities specified in a written request or
requests, made within 20 days after receipt of such written notice from the
Company, by any Holder.
(b) Underwriting. If the registration of which the Company gives
------------
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders. In such event the right of any Holder to
registration pursuant to Section 6(a) shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company. If any
Holder, or other holder disapproves of the terms of any such underwriting, he
may elect to withdraw therefrom by written notice to the Company and the
managing underwriter. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to 90 days after the effective date
of the registration statement relating thereto, or such other shorter period
of time as the underwriters may require. The provisions of Section 4(d)(i)-(v)
hereof shall also apply to registrations pursuant to this Section 5.
-7-
(c) Right to Terminate Registration. The Company shall have the
-------------------------------
right to terminate or withdraw any registration initiated by it under this
Section 5 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
6. Other Registration Rights. The Holders acknowledge that certain other
-------------------------
stockholders of the Company may now or hereafter have registration rights, and
that such other stockholders may be entitled to sell their securities at the
same time, or pursuant to the same registration and underwriting, as the Holders
hereunder.
7. Expenses of Registration. All Registration Expenses incurred in
------------------------
connection with the Company's obligations hereunder shall be borne by the
Company. All Selling Expenses relating to securities proposed to be registered
hereunder and all other registration expenses shall be borne by the Holders of
such securities pro rata on the basis of the number of shares proposed to be
sold by each of them during the applicable Permitted Window; provided however
-------- -------
that if the Company pays the Selling Expenses or Registration Expenses of
other shareholders of the Company in any registration in which the Holders
participate, then the Company shall pay the Selling Expenses and Registration
Expenses of Holders to the same extent and in pro rata proportion to the
Selling Expenses and Registration Expenses paid by the Company with respect to
the other shareholders.
8. Indemnification.
---------------
(a) The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which
registration has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or
any amendment or supplement thereto, incident to any such registration, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, or any
violation by the Company of the Securities Act, the Exchange Act, state
securities law or any rule or regulation promulgated under the such laws
applicable to the Company in connection with any such registration, and the
Company will reimburse each such Holder, each of its officers, directors and
partners, and each person controlling such Holder, for any legal and any other
expenses reasonably incurred, as such expenses are incurred; in connection
with investigating, preparing or defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable in any such
-------- ----
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon and in conformity with
written information furnished to the Company by an instrument duly executed by
such Holder or controlling person, and stated to be specifically for use
therein; and provided further, that the foregoing indemnity Agreement is
-------- -------
subject to the condition that, insofar as it relates to any such untrue
statement, alleged untrue statement, omission or alleged omission made in a
preliminary prospectus, such indemnity agreement shall not inure to the
benefit of any person, if a copy of the final prospectus or an amended or
supplemented prospectus, as applicable, was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act, and if the final prospectus or the
amended or supplemented prospectus, as applicable, would have cured the defect
giving rise to the loss, liability, claim or damage. In no event, however,
shall the Company have any indemnification obligation to the extent that the
expenses, claims, losses, damages or liabilities as to which indemnification
is sought are in connection with an offer or sale made by a person other than
the Company in violation of the terms of this Agreement (a "Violation").
-8-
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which a registration hereunder is
effected, indemnify the Company, each of its directors and officers, each
person who controls the Company within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of
the Securities Act, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on (i) a Violation by such
Holder or (ii) any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse the Company,
such Holders, such directors, officers or control persons for any legal or any
other expenses reasonably incurred, as such expenses are incurred, in
connection with investigating or defending any such claim, loss, damage,
liability or action, but, in the case of clause (ii) above, only to the extent
that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with information
furnished to the Company by such Holder. Notwithstanding the foregoing, the
liability of each Holder under this subsection 8(b) shall be limited in an
amount equal to the initial public offering price of the shares sold by such
Holder, unless such liability arises out of or is based on a Violation or
willful misconduct by such Holder.
(c) Each party entitled to indemnification under this Section 8 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure
to give such notice is materially prejudicial to an Indemnifying Party's
ability to defend such action and provided further, that the Indemnifying
Party shall not assume the defense for matters as to which there is a conflict
of interest or there are separate and different defenses. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party (whose consent shall not be unreasonably
withheld), consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation.
9. Information by Holder. The Holder or Holders of Registrable Securities
---------------------
included in any registration hereunder shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration
referred to in this Agreement.
10. Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may permit the sale of the
Restricted Securities to the public without registration the Company agrees to
use all reasonable efforts, at any time after the second anniversary of the
Effective Date, to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
-9-
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act; and
(c) So long as a Holder owns any Restricted Securities, to furnish to
the Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as the Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing the Holder to sell any such
securities without registration.
11. Transfer of Registration Rights. The rights to cause the Company to
-------------------------------
register securities granted to Holders under Section 4 (but not Section 5) may
be assigned to a transferee or assignee reasonably acceptable to the Company in
connection with any transfer or assignment of Registrable Securities by the
Holder, provided that (i) such transfer is otherwise effected in accordance with
applicable securities laws and the terms of this Agreement, (ii) such assignee
or transferee acquires at least 100,000 shares of Registrable Securities (as
adjusted for stock splits, stock dividends, stock combinations and the like),
(iii) written notice is promptly given to the Company and (iv) such transferee
agrees to be bound by the provisions of this Agreement. Notwithstanding the
foregoing, the rights to cause the Company to register securities may be
assigned without compliance with item (ii) above to (x) any constituent equity
holder of a Holder which is a partnership, limited liability company, or a
corporation or (y) a family member or trust for the benefit of a Holder who is
an individual, or a trust for the benefit of a family member of such a Holder.
12. Amendment. Except as otherwise provided above, any provision of this
---------
Agreement may be amended or the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and each of the
Holders.
13. Governing Law. This Agreement shall be governed in all respects by the
-------------
laws of the State of Delaware, without regard to conflict of laws provisions.
14. Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and Agreement among the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon the successors, assigns,
heirs, executors and administrators of the parties hereto.
15. Notices, etc. All notices and other communications required or
------------
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by facsimile
transmission, by hand or by messenger, addressed:
(a) if to a Holder, at such Holder's address as set forth below such
Holder's signature on this Agreement, or at such other address as such Holder
shall have furnished to the Company.
(b) if to the Company, to:
Cirrus Logic, Inc.
0000 X. Xxxxxxxxxx Xx.
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx
-10-
Cirrus Logic, Inc.
0000 Xxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxx Xxxxxxx
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally or by facsimile transmission, or, if sent by mail, at the
earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
16. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
-11-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
"THE COMPANY"
Cirrus Logic, Inc.,
a Delaware corporation
By:
--------------------------------------
Title:
-----------------------------------
"THE SHAREHOLDERS"
------------------------------------------
Signature
Print Name: Xxxx Xxxxxx, on behalf of each
of following stockholders of AudioLogic,
Inc.,
Xxxx X. Xxxxxxxx
Xxxxxxx Xxxx
Xxxxxxxx Xxxx
Xxxx Xxxxxxxx
Xxxxx Xxxxxxx
Xxx X. Xxxxxxxxx
Xxxxxxx Xxx
The Hill Partnership III
Gilde Investment Fund B. V.
Xxxxx Forest
Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx Fund II
Xxxx Xxxxxxxxx
-12-
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxxxxx Xxxxx
Xxxx X. XxXxx Xxxxxx
Xxxxx Xxxxx
-13-
