Exhibit 10.2
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (the "Agreement") is made and entered into as of
March 22, 1997 by and among Avid Technology, Inc., a Delaware corporation (the
"Company"), and Intel Corporation, a Delaware corporation ("Stockholder").
RECITALS
A. The Company and Stockholder have entered into a Common Stock Purchase
Agreement dated as of March 22, 1997 (the "Purchase Agreement") pursuant to
which Stockholder has agreed to purchase 1,552,632 shares of the Company's
Common Stock, par value $0.01 per share ("Common Stock").
B. The execution and delivery of this Agreement by the parties hereto is a
condition precedent to the obligations of the parties under the Purchase
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties hereto agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings
indicted below:
1933 ACT. The Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.
1934 ACT. The Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.
BUSINESS DAY. Each weekday that is not a day on which banking institutions
in New York are authorized or obligated by law or executive order to close.
COMMISSION. The United States Securities and Exchange Commission.
HOLDER. Any person owning Registrable Securities who is a party to this
Agreement, and any transferee thereof in accordance with Section 7 or 11 of this
Agreement.
PROSPECTUS. The prospectus included in any Registration Statement, as amended or
supplemented by any prospectus supplement (including, without limitation, any
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration Statement), and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
REGISTER, REGISTRATION AND REGISTERED. A registration effected by preparing and
filing a registration statement or similar document with the Commission in
compliance with the 1933 Act, and the declaration or ordering of effectiveness
of such registration statement or document.
REGISTRABLE SECURITIES. The shares of Common Stock issued to Stockholder
pursuant to the Purchase Agreement and any securities that may be issued by the
Company or any successor to the Company from time to time with respect to, in
exchange for, or in replacement of such shares of Common Stock, including,
without limitation, securities issued as a stock dividend on or pursuant to a
stock split of such shares of Common Stock; provided, however, that those shares
as to which the following apply shall cease to be Registrable Securities when:
(a) a Registration Statement with respect to the sale of such Registrable
Securities shall have become effective under the 1933 Act and such Registrable
Securities shall have been disposed of under such Registration Statement; (b)
such Registrable Securities shall have become transferable, or have become
eligible and remain eligible for transfer (whether or not so transferred), in
accordance with Rule 144(k), or any successor rule or provision, under the 1933
Act; (c) such Registrable Securities shall have been transferred in a
transaction in which the Holder's rights and obligations under this Agreement
were not assigned in accordance with this Agreement; (d) such Registrable
Securities shall have ceased to be outstanding; or (e) such Registrable
Securities shall have been sold pursuant to Rule 144.
REGISTRATION EXPENSES. All expenses incident to the Company's performance of or
compliance with Sections 2 and 4 hereof, including, without limitation, all
registration and filing fees (including filing fees with respect to the
Commission and to the National Association of Securities Dealers, Inc. and
listing fees of the Nasdaq National Market), all fees and expenses of complying
with state securities or "blue sky" laws (including fees and disbursements of
underwriters' counsel in connection with any "blue sky" memorandum or survey,
but excluding any fees and expenses for foreign qualification in such
jurisdictions), all printing expenses, all registrars' and transfer agents' fees
and all fees and disbursements of the Company's counsel and independent public
accountants; provided, however, that Registration Expenses shall not include the
fees and expenses of more than one counsel to the holders of Registrable
Securities, or underwriters' discounts and commissions, or brokerage fees,
associated with the sale of the Registrable Securities.
REGISTRATION STATEMENT. A registration statement prepared and filed with the
Commission in compliance with the 1933 Act.
SELLER. Any person, including any Holder, selling any Registrable Securities
in an offering of any Registrable Securities of the Company pursuant to this
Agreement.
SELLING EXPENSES. All applicable discounts and commissions, brokerage fees,
transfer taxes and any fees and disbursements of more than one counsel or any
accountants or other advisors for the Sellers of the Registrable Securities
being registered.
2. "PIGGY-BACK" REGISTRATION RIGHTS
If at any time the Company shall determine to register pursuant to an
underwritten public offering under the 1933 Act any of its Common Stock for its
own account, or the account of other stockholders of the Company desiring to
sell "restricted securities" of the Company (as defined in Rule 144 of the 0000
Xxx) pursuant to an underwritten public offering, it shall send to the Holder
written notice of such determination and, if within 15 calendar days after
receipt of such notice, Holder shall so request in writing, the Company shall
include in such registration statement all or any part of the Registrable
Securities the Holder requests to be registered. This right shall not apply to a
registration of shares of Common Stock on Form S-8 or Form S-4 (or their then
equivalents) relating to shares of Common Stock to be issued by the Company in
connection with any acquisition of any entity or business, or shares of Common
Stock issuable in connection with any stock option, stock purchase plan or other
employee benefit plan.
If, in connection with any offering involving an underwriting of Common Stock to
be issued for the account of the Company or selling securityholders, the
managing underwriter shall impose a limitation on the number of shares of such
Common Stock which may be included in any such registration statement because,
in its judgment, such limitation is necessary to effect an orderly public
distribution of the Common Stock and to maintain a stable market for the
securities of the Company, then the Company shall be obligated to include in
such registration statement only such limited portion of the stock with respect
to which the Holder has requested inclusion hereunder, on a pro rata basis based
on the number of shares of Common Stock owned by the Holder and all other
selling securityholders, other than securityholders whose shares are to be
included in such registration statement pursuant to the exercise of demand
registration rights under any agreement with the Company (a "Demand
Securityholder"); provided, however, there shall be no reduction in the number
of shares included therein by the Company, or if such registration statement is
filed at the request of a Demand Securityholder, by such Demand Securityholder.
3. SHELF REGISTRATION
3.1 UNDERTAKING TO REGISTER
As soon as practicable but in any event within 150 days following the Closing
(as that term is defined in the Purchase Agreement), upon written request of
Stockholder, the Company will use its commercially reasonable best efforts to
prepare, file and have declared effective a registration statement under the
Securities Act to register all of the Registrable Securities for resale in the
public market in brokerage transactions or transactions with market makers, in
block trades, and in privately negotiated transactions.
3.2 SELLING PROCEDURES; SUSPENSION
(a) Except in the event that paragraph (b) below applies, the Company shall (i)
if deemed necessary by the Company, prepare and file from time to time with the
Commission a post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that such Registration Statement will not contain 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 not misleading, and so that, as
thereafter delivered to purchasers of the Registrable Securities being sold
thereunder, such Prospectus will not contain 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 were made, not misleading; (ii) provide the Holders of the
Registrable Securities copies of any documents filed pursuant to Section
3.2(a)(i); and (iii) inform each Holder that the Company has complied with its
obligations in Section 3.2(a)(i) (or that, if the Company has filed a
post-effective amendment to the Registration Statement which has not yet been
declared effective, the Company will notify each such Holder to that effect,
will use its best efforts to secure the effectiveness of such post-effective
amendment and will immediately notify each such Holder pursuant to Section
3.2(a)(i) hereof when the amendment has become effective).
(b) In the event (i) of any request by the Commission or any other federal or
state governmental authority during the period of effectiveness of the
Registration Statement for amendments or supplements to a Registration
Statement or related Prospectus or for additional information; (ii) of the
issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose; (iii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; (iv) of any event or circumstance which necessitates the making of any
changes in the Registration Statement or Prospectus, or any document
incorporated or deemed to be incorporated therein by reference, so that, in the
case of the Registration Statement, it will not contain any untrue statement of
a material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of a
material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (v) that, in the
reasonable, good faith judgment of the Company's Board of Directors, upon the
advice of counsel, (A) the offering of securities pursuant thereto would
materially and adversely affect (i) a pending or scheduled public offering or
private placement of the Company's securities, (ii) a pending or proposed
acquisition, merger, consolidation, reorganization, restructuring or similar
transaction of or by the Company or other material corporate activity or
transaction, (iii) bona fide negotiations, discussions or proposals with
respect to any of the foregoing, or (iv) the position or strategy of the
Company in connection with any pending or threatened litigation, claim,
assessment or government investigation and (B) in the event sales of
Registrable Securities were made under the Registration Statement and
disclosure of all material information with respect to the applicable
circumstance(s) described in subparagraph (A) had not been made, such
circumstances could reasonably be expected to cause a violation of the 1933 Act
or the 1934 Act (each a "Suspension Event"); then, subject to paragraph (d)
below, the Company shall deliver a certificate in writing to the Holders (the
"Suspension Notice") to the effect of the foregoing and, upon receipt of such
Suspension Notice, each such Holder will refrain from selling any Registrable
Securities pursuant to the Registration Statement (a "Suspension") until such
Holder's receipt of copies of the supplemented or amended Prospectus provided
for in Section 3.2(a)(i) hereof, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus.
(c) In the event of any Suspension, or any delay in effecting the Registration
under Section 3.2 above, the Company will use its best efforts to ensure that
the use of the Prospectus so suspended or delayed may be commenced or resumed,
as the case may be, and that the Suspension will terminate and the Holder's
ability to sell pursuant to the Prospectus so suspended will commence or
resume, as the case may be, as soon as practicable and, in the case of a
pending development, filing or event referred to in Section 3.2(b)(iv) or (v)
hereof, as soon, in the judgment of the Company's Board of Directors (in
accordance with the provisions of Section 3.2), as disclosure of such pending
development, filing or event would not have a material adverse effect on the
Company's ability to consummate the transaction, if any, contemplated by such
development, filing or event. Notwithstanding any other provision of this
Agreement, the Company shall have the right to cause a maximum of two (2)
Suspensions pursuant to Section 3.2(b)(iv) and (v), neither of which may be
within 45 days of the other, as provided above (including for this purpose a
delay in effecting the Registration pursuant to Section 3.2 above) during any
12-month period after the initial effective date of the Registration Statement,
and the total number of days for which all Suspensions (including for this
purpose a delay in effecting the Registration Statement pursuant to Section 3.2
above) during any 12-month period shall not exceed 90 days in the aggregate;
provided that no such individual Suspension may be in effect for more than 60
days.
(d) The Company will use its commercially reasonable best efforts to maintain
the effectiveness of any registration statement pursuant to which any of the
Registrable Securities are being offered for (i) up to 120 days, (or such
shorter period of time as the underwriters need to complete the distribution of
the registered offering in any Company-primary or secondary offering), in the
case of a registration pursuant to Section 2, or (ii) in the case of a "shelf'
Registration Statement pursuant to Section 3.1 until the date on which each
Holder may sell all Registrable Securities then held by such Holder without
restriction by the volume limitations of Rule 144(e). The Company from time to
time will amend or supplement such Registration Statement and the Prospectus
contained therein to the extent necessary to comply with the 1933 Act and any
applicable state securities statue or regulation
3.3 UNDERWRITING AGREEMENT
If in connection with any proposed distribution by the Holder under the "piggy
back" registration referred to in Section 2, the Company in its discretion
shall determine that it is in the best interests of the Company to effect
distribution by means of an underwriting, the Company shall promptly notify the
Holder of such determination. In such event, in addition to the limitations set
forth in Section 2, the right of Holder to participate in such distribution
shall be conditioned upon such Holder's participation in the underwriting
arrangements required by this Section 3.3, including without limitation, the
requirement that the Holder enter into an underwriting agreement and a lock-up
agreement (for a period determined by the managing underwriter not to exceed
the period agreed to by all directors and officers of the Company), each in
customary form with the managing underwriter selected for the underwriting by
the Company.
4. EXPENSES
The Company will pay all Registration Expenses in connection with the
registration of Registrable Securities effected by the Company pursuant to
Section 4; provided that Holder shall pay the first $50,000 of Registration
Expenses applicable to registrations of Holder's shares of Common Stock under
this Agreement. Holders of Registrable Securities registered pursuant to this
Agreement shall pay all Selling Expenses with each such Holder bearing a pro
rata portion of the Selling Expenses based upon the number of Registrable
Securities registered by each such Holder.
5. EXPIRATION OF REGISTRATION RIGHTS
The obligations of the Company under Section 2 of this Agreement to register
the Registrable Securities shall expire and terminate at the earlier of (a)
three years following the Closing or (b) such time as the Holder shall be
entitled or eligible to sell all such securities without restriction and
without a need for the filing of a registration statement under the Securities
Act, including without limitation, for any resales of restricted securities
made pursuant to Rule 144(k) as promulgated by the Securities and Exchange
Commission. The determination as to whether the Holder is entitled or eligible
to sell all Registrable Securities without the need for registration under the
Securities Act shall be based on a written opinion of counsel that registration
of the Registrable Securities is not required under the Securities Act,
sufficient to permit the transfer agent to transfer such securities upon a sale
by the Holder. The obligations of the Company under Section 3 of this Agreement
shall expire at the time specified in Section 3.2(d)(ii).
6. REGISTRATION PROCEDURES
In connection with the registration of Registrable Securities under this
Agreement, and subject to the other provisions of this Agreement, the Company
shall:
(a) use its commercially reasonable best efforts to cause the Registration
Statement filed in accordance with Section 2 or Section 3 to become effective
as soon as practicable after the date of filing thereof;
(b) prepare and file with the Commission such amendments and supplements to
such Registration Statement and the Prospectus used in connection therewith as
may be necessary to keep such Registration Statement continuously effective
for the shorter of (i) the duration of its registration obligations, or (ii)
until there are no Registrable Securities outstanding, and to comply with the
provisions of the 1933 Act with respect to the disposition of the Registrable
Securities;
(c) furnish to each Seller of such Registrable Securities such number of
copies of the Prospectus included in such Registration Statement as such
Seller may reasonably request in order to facilitate the sale or disposition
of such Registrable Securities;
(d) use its commercially reasonable best efforts to register or qualify all
securities covered by such Registration Statement under such other securities
or "blue sky" laws of such jurisdictions as each Seller shall reasonably
request, and do any and all other acts and things that may be necessary to
enable such Seller to consummate the disposition in such jurisdictions of its
Registrable Securities covered by such Registration Statement, except that the
Company shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified, or to subject itself to taxation in respect of doing business in
any such jurisdiction, or to consent to general service of process in any such
jurisdiction;
(e) notify each Seller of Registrable Securities covered by such Registration
Statement, at any time when a Prospectus relating thereto is required to be
delivered under the 1933 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 not misleading in light of the circumstances then existing
or if it is necessary to amend or supplement such Prospectus to comply with
the law, and at the request of any such Seller, prepare and furnish to such
Seller 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 or securities, such Prospectus, as
amended or supplemented, will comply with the law;
(f) use its best efforts to qualify such securities for inclusion in the
Nasdaq National Market, and provide a transfer agent and registrar for such
Registrable Securities not later than the effective date of such Registration
Statement; and
(g) issue to any person to which any Holder of Registrable Securities may sell
such Registrable Securities in connection with such registration certificates
evidencing such Registrable Securities without any legend restricting the
transferability of the Registrable Securities (unless otherwise required by
law).
7. 1934 ACT REGISTRATION
The Company shall timely file with the Commission such information as the
Commission may prescribe under Section 13 or 15(d) of the 1934 Act and shall
use its best efforts to take all action and make all filings of information
referenced in Rule 144(c) as may be required as a condition to the availability
of Rule 144 under the 1933 Act (or any successor exemptive rule hereinafter in
effect) with respect to such Common Stock. The Company shall furnish to any
holder of Registrable Securities forthwith upon request (i) a written statement
by the Company as to its compliance with the reporting requirements of Rule
144(c), (ii) a copy of the most recent annual or quarterly report of the
Company as filed with the Commission, and (iii) such other publicly-filed
reports and documents as a holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing a holder to sell any such
Registrable Securities without registration.
8. STOCKHOLDER INFORMATION
It shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Agreement that all Holders of Registrable Securities
shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such Registrable Securities as shall be reasonably required to effect the
registration of their Registrable Securities and to execute such documents in
connection with such registration as the Company may reasonably request.
9. INDEMNIFICATION AND CONTRIBUTION
In the event any Registrable Securities are included in a Registration
Statement under Sections 2 and 3:
(a) The Company will indemnify and hold harmless each Seller, the officers,
directors, partners, agents and employees of each Seller, any underwriter (as
defined in the 0000 Xxx) for such Seller and each person, if any, who controls
such Seller or underwriter within the meaning of the 1933 Act or the 1934 Act,
against any losses, claims, damages or liabilities (joint or several) to which
they may become subject under the 1933 Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement, including any preliminary Prospectus or final
Prospectus contained therein or any amendments or supplements thereto; (ii)
the 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 under which they were made, not misleading; or (iii) any
violation or alleged violation by the Company of the 1933 Act, the 1934 Act,
any state securities law or any rule or regulation promulgated under the 1933
Act, the 1934 Act or any state securities law; and the Company will reimburse
each such Seller, officer, director, partner, agent, employee, underwriter or
controlling person for any reasonable legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 9(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld or delayed), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation (i) which occurs in
reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Seller, underwriter
or controlling person or (ii) which is based upon any information in a
Prospectus that has been amended or supplemented if such Seller had been
notified of such amendment or supplement and the use of such amendment or
supplement by the Seller would have avoided the Violation.
(b) Each Seller will indemnify and hold harmless the Company, each of its
officers, directors, partners, agents or employees, each person, if any, who
controls the Company within the meaning of the 1933 Act, any underwriter and
any other Seller or any of its directors, officers, partners, agents or
employees or any person who controls such Seller, against any losses, claims,
damages or liabilities joint or several) to which the Company or any such
director, officer, partner, agent, employee, controlling person or
underwriter, or other such Seller or director, officer, partner, agent,
employee or controlling person may become subject, under the 1933 Act, the
1934 Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Seller expressly for use in connection with such
registration; and each such Seller will reimburse any reasonable legal or
other expenses reasonably incurred by the Company or any such director,
officer, partner, agent, employee, controlling person or underwriter, other
Seller, officer, director, partner, agent, employee or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action. Notwithstanding anything contained in this Agreement to
the contrary, the indemnity agreement contained in this Section 9(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Seller,
which consent shall not be unreasonably withheld or delayed; provided further,
that the aggregate liability of each Seller in connection with any sale of
Registrable Securities pursuant to a Registration Statement in which a
Violation occurred shall be limited to the net proceeds from such sale.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this Section 9, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel selected by the
indemnifying party and reasonably acceptable to the indemnified party;
provided, however, that an indemnified party shall have the right to retain
its own counsel, with the reasonable fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing or conflicting interests between such indemnified party
and any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, to the extent
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of liability to the indemnified party under this Section 9
to the extent of such prejudice, but the omission so to deliver written notice
to the indemnifying party will not relieve it of any liability that it may
have to any indemnified party otherwise than under this Section 9.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 9, for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be entitled
to contribution to liabilities and expenses in such proportion as is
appropriate to reflect the relative fault of the indemnifying parties and the
indemnified parties, except to the extent that contribution is not permitted
under Section 11(f) of the 1933 Act. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, the parties' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission and any other equitable
considerations appropriate under the circumstances, including, without
limitation, whether any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, on the one hand, or by the Holder of
Registrable Securities, on the other hand. The Company and Stockholders of the
Registrable Securities covered by such Registration Statement agree that it
would not be equitable if the amount of such contribution were determined by
pro rata or per capita allocation. No seller of Registrable Securities covered
by such Registration Statement or person controlling such Seller shall be
obligated to make any contribution hereunder which in the aggregate exceeds
the net proceeds of the securities sold by such seller, less the aggregate
amount of any damages which such seller and its controlling persons have
otherwise been required to pay in respect of the same claim or any
substantially similar claim. The obligations of such Stockholders to
contribute are several in proportion to their respective ownership of the
Registrable Securities covered by such Registration Statement and not joint.
Notwithstanding the foregoing, in no event shall any contribution by a Holder
under this Section 9(d) exceed the net proceeds from the offering received by
such Holder.
10. TRANSFERABILITY
Each Holder agrees that he will not make any disposition of all or any portion
of the Registrable Securities (a) except in a registered public offering
pursuant to the rights granted in this Agreement; or (b) until (i) such Holder
shall have furnished the Company with a statement of the circumstances
surrounding the proposed disposition and (ii) if reasonably requested by the
Company, such Holder shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to counsel for the Company, that such
disposition will not require registration of such Registrable Securities or
such transaction under the 1933 Act or applicable state securities laws.
11. COVENANTS
11.1 BOARD OBSERVERSHIP
During the "Development Period" (as defined in that certain Software and
Hardware Development, License and Distribution Agreement dated as of March 21,
1997 between the Company and Stockholder (the "Development Agreement")),
Stockholder shall be entitled to appoint a non-voting observer to the Company's
Board of Directors who is reasonably acceptable to the Company; and such
observer shall be entitled to attend all meetings of the Company's Board of
Directors and committees thereof (other than the audit, nominations and
governance and compensation committees as conducted under their current
charters) and shall receive notice of all meetings and all materials furnished
to members of the Company's Board of Directors in their capacities as such,
unless the Chairman of the Board of the Company shall reasonably determine that
delivery of such materials to Stockholder is detrimental to the Company.
Stockholder acknowledges its intent (without an obligation) that the observer
be the same person for purposes of providing continuity. Upon the request of
the Chairman of the Company, the observer will excuse himself from any portion
of the Board or committee meetings if the Chairman of the Board of the Company
shall reasonably determine that the observer's presence is detrimental to the
Company. The materials furnished to Stockholder and the discussions and
presentations in connection with or at such meetings shall be considered
confidential information not to be disclosed to any third party unless such
information is generally available to the public or disclosure is required by
law.
11.2 LIMITATIONS
During the Development Period, without the prior written consent of
Stockholder, the Company will not enter into any agreement or obligation that
could reasonably be anticipated to prevent the Company from meeting the
milestones listed in an Exhibit to the Development Agreement.
12. MISCELLANEOUS
12.1 AMENDMENTS AND WAIVERS
Any provision of this Agreement may be amended and the observance thereof may
only be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the Company and
the Holders of a majority of the Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this Section 12.1 shall be
binding upon each Holder of Registrable Securities at the time outstanding,
each future Holder of Registrable Securities, and the Company.
12.2 NOTICES
Any notice required or permitted under this Agreement will be given in writing,
shall be effective when received, and shall in any event be deemed received and
effectively given upon personal delivery to the party to be notified or three
(3) business days after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, or one (1) business day after
deposit with a nationally recognized courier service such as Federal Express
for next business day delivery, or one (1) business day after facsimile with
copy delivered by registered or certified mail, postage prepaid and addressed
to the party to be notified at the address indicated for such party on the
signature page hereof or at such other address as the Shareholder or the
Company may designate by giving at least ten (10) days advance written notice
pursuant to this Section 12.2
12.3 GOVERNING LAW
This Agreement shall for all purposes be governed by and construed in
accordance with the internal laws of the State of Delaware without regard to
conflicts-of-laws principles. The parties hereto agree to submit to the
jurisdiction of the federal and state courts of the County of Santa Xxxxx in
the State of California with respect to the breach or interpretation of this
Agreement or the enforcement of any and all rights, duties, liabilities,
obligations, powers and other relations between parties arising under this
Agreement.
12.4 SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excised from this Agreement, and the
remainder of this Agreement shall be interpreted as if such provision were so
excised and shall be enforceable in accordance with its remaining terms.
12.5 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall
be deemed to be an original and all of which together shall constitute one and
the same instrument.
12.6 EFFECTIVENESS
Any other provision of this Agreement to the contrary notwithstanding, neither
party to this Agreement shall have any obligation to the other under this
Agreement unless and until the Closing under the Common Stock Purchase
Agreement between the parties dated March 22, 1997 shall have occurred.
12.7 ASSIGNMENT
The rights set forth in this Agreement are not transferable except to a person
controlling, controlled by, or under common control with Holder. All
transferees shall agree in writing to be bound by all of the provisions of this
Agreement. A Holder shall promptly advise the Company in writing of the
identity and address of any person to whom it transferred its registration
rights hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Investor Rights
Agreement as of the date first above written.
AVID TECHNOLOGY, INC. INTEL CORPORATION
By: /S/ XXXXXXX X. XXXXXXXX By: /S/ XXXXXX XXXXXXX
-------------------------- -----------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx Xxxxxxx
Title: Senior Vice President of Title:
Finance and Chief Financial
Officer
Address: Mail Stop: SC4-210
Address: Metropolitan Technology Park 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxx Xxxx Xxxxx Xxxxx, Xxxxxxxxxx 00000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel Attention: Treasurer
Telephone No.: (000) 000-0000 Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
with a copy to
Address: SC4-203
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
[Signature Page to Investor Rights Agreement]
