TUT SYSTEMS, INC.
REGISTRATION RIGHTS AGREEMENT
May 26, 2000
TUT SYSTEMS, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
May 26, 2000 by and among TUT SYSTEMS, INC., a Delaware corporation (the
"Company"), and the shareholders of Xstreamis, Plc, a United Kingdom holding
company ("Xstreamis"), listed on Exhibits A and B hereto, (each a "Shareholder,"
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collectively, the "Shareholders").
RECITALS
A. The Shareholders will acquire shares of Common Stock of the Company
(the "Shares") pursuant to the terms of an agreement by and between the Company
and Xstreamis, dated of even date herewith, for the sale and purchase of the
entire issued share capital of Xstreamis (the "Share Purchase Agreement").
B. The execution of this Agreement is a condition to the closing of the
transactions contemplated by the Share Purchase Agreement.
C. The Company desires to enter into this Agreement and grant the
Shareholders the rights contained herein in order to fulfill such condition.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
Section 1
Certain Definitions
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As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 "SEC" shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the
Securities Act
1.2 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder, all
as the same shall be in effect at that time
1.3 "Form S-3" means such form under the Securities Act as is in effect
on the date hereof or any equivalent or successor registration form under the
Securities Act which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC
1.4 "Form S-1" means such form under the Securities Act as is in effect on
the date hereof or any equivalent or successor registration form under the
Securities Act which
requires full disclosure of Company information in accordance with regulations
promulgated by the SEC.
1.5 The terms "register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (as defined below), and the declaration or
ordering of the effectiveness of such registration statement
1.6 "Registrable Securities" means the shares of Common Stock of the
Company issued to the Shareholders listed on Exhibit A hereto and twenty (20)
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percent of the shares of Common Stock of the Company issued to the
Shareholders listed on Exhibit B hereto pursuant to the Share Purchase
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Agreement, excluding in all cases, however, any Registrable Securities sold by
a person in a transaction in which the Shareholder's rights under this
Agreement are not assigned; provided, however, that Registrable Securities
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shall only be treated as Registrable Securities if and so long as they have
not been sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction
1.7 "Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder, all as the
same shall be in effect at the time
1.8 An "Affiliate" of the Shareholder means: (i) as to the Shareholder
which is a partnership, any partner, retired partner or affiliated
partnerships managed by the same management company or managing director or
general partner or by an entity which controls, is controlled by, or is under
common control with such management company or managing director or general
partner; (ii) any member or former member of the Shareholder which is a
limited liability company; (iii) any immediate family member or trust for the
benefit of the Shareholder which is an individual; or (iv) any majority-owned
subsidiary of the Shareholder which is a corporation; or (v) any other entity
which controls, is controlled by or is under common control with the
Shareholder.
Section 2
Piggyback Rights
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2.1 Notice of Registration. If at any time or from time to time, the
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Company shall determine to register any of its securities pursuant to the
Securities Act, for its own account or for the account of stockholders other
than the Shareholders, in an underwritten public offering, the Company will:
(i) give Shareholders written notice thereof at least twenty (20) days
prior to the filing of any registration statement under the Securities Act; and
(ii) include in such registration (and any related qualification under
blue sky laws or other compliance) and underwriting all the Registrable
Securities (subject to cutback as set forth in Section 2.2) specified in a
written request or requests made within twenty (20) days after receipt of such
written notice from the Company by Shareholders.
In connection with any registration pursuant to this Section 2, if any
Shareholder participates in such registration, such Shareholder shall provide
all information to the Company as may be required in order to permit the Company
to comply with all applicable requirements of the SEC in connection with such
registration.
2.2 Underwriting. The right of any Shareholder to registration pursuant to
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this Section 2 shall be conditioned upon such Shareholder's participation in
such underwriting and the inclusion of Registrable Securities in the
underwriting to the extent provided herein. If any Shareholder proposes to
distribute its securities through such underwriting, such Shareholder shall
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 2, if the managing underwriter advises the
Shareholders registering Shares in writing that such underwriter has determined
in good faith that marketing factors require a limitation of the number of
shares to be underwritten, then the Registrable Securities of the Shareholders,
the securities of the Company and the securities held by any other stockholders
distributing their securities through such underwriting shall be allocated for
purposes of such underwriting first to the Company for its own account, second,
on a pro rata basis based on the number of shares each Shareholder has requested
to be included in such registration in the written request delivered pursuant to
Section 2.1(ii) hereof, to the Shareholders and to any third parties with
previously granted similar rights pursuant to agreements with the Company dated
prior to the date hereof; and third to any other stockholders distributing their
securities through such underwriting on a pro rata basis among such
stockholders. To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriters may round the number of shares
allocated to the Shareholders or other stockholders to the nearest 100 shares.
If any Shareholder disapproves of the terms of any such underwriting, such
Shareholder may elect to withdraw therefrom by written notice to the Company and
the managing underwriter (not later than twenty (20) days prior to the effective
date of the offering). If the Shareholders have shares which are included in
such an underwritten public offering, any remaining Shares owned by the
Shareholder which are excluded from such underwriting shall not be transferred
in a public distribution prior to 90 days after the effective date of such
registration, or such other shorter period of time as the underwriters may
require.
2.3 Right to Terminate Registration. The Company shall have the right to
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terminate or withdraw any registration initiated by it under this Section 2
prior to the effectiveness of such registration, whether or not any Shareholders
have elected to include securities in such registration.
Section 3
Shelf Registration
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3.1 Filing. On or before the date which is eighty (80) days after the
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closing of the Share Purchase Agreement, the Company shall file or cause to be
filed pursuant to Rule 415 (or any successor provision) under the Securities Act
a registration statement on Form S-3 or, if the Company is not eligible to use
Form S-3, on Form S-1, covering the resale of all Registrable Securities by the
Shareholders (the "Shelf Registration Statement") and shall use its commercially
reasonable efforts to cause the Shelf Registration Statement to be declared
effective as soon as possible after the Shelf Registration Statement is filed;
provided,
however, that the Company shall not be obligated to effect any such
registration pursuant to this Section 3 if the Company shall furnish to the
Shareholders 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 and its stockholders for such
registration statement to be effected at such time, in which event the Company
shall have the right to defer the filing of the Shelf Registration Statement
for a period of not more than one hundred ten (110) days after the closing of
the Share Purchase Agreement.
3.2 Effectiveness. Once effective, the Company shall cause the Shelf
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Registration Statement to remain effective until the earlier of (i) the date
upon which the Shelf Registration Statement has been effective for an aggregate
of ninety (90) days, and (ii) the date upon which all Registrable Securities
have been sold pursuant to the Shelf Registration Statement. The Company shall
use its commercially reasonable efforts to keep the Shelf Registration Statement
effective for an aggregate of at least forty-five (45) days in calendar year
2000 (the "Minimal Shelf Registration Period"), and the Company shall not
suspend use of the Shelf Registration Statement pursuant to Section 5 hereof so
that the Shelf Registration Statement (and any refilings thereof or amendments
thereto to disclose material developments) is not effective for the Minimal
Shelf Registration Period in calendar year 2000, provided, however, that the
sole remedy of the Shareholders in the event the Shelf Registration Statement is
not effective for the Minimal Shelf Registration Period shall be to cause the
Company to repurchase any Registrable Securities which have not otherwise been
sold. To exercise such repurchase right, a Shareholder must provide written
notice to the Company on or before January 10, 2001, requesting the repurchase
of Registrable Securities. The repurchase price shall be determined as the
average closing price of the Common Stock of the Company as listed on the NASDAQ
(or if not so listed, as determined in good faith by an independent investment
banking or brokerage firm) for each of the trading days on which the Shelf
Registration Statement is not available for the sale of Registrable Securities
by reason of suspension of the use of the Shelf Registration Statement in
accordance with Section 5 of this Agreement, after the Shelf Registration
Statement is first declared effective by the SEC and before January 1, 2001. If
the Shelf Registration Statement is filed with the SEC on or before August 12,
2000 but is not declared effective prior to September 15, 2000, then for each
day beginning September 16, 2000 for which the Shelf Registration Statement has
not been declared effective by the SEC, the Minimal Shelf Registration Period
shall be reduced by one day (on a day-for-day basis), provided, however, that
this reduction shall not reduce the obligation of the Company to maintain the
effectiveness of the Shelf Registration Statement for the period specified in
the first sentence of this Section 3.2 or prejudice in any way any of the other
rights of the Shareholders under this Agreement. The Company and the
Shareholders who desire to sell their Registrable Securities to the Company
pursuant to the foregoing right shall use their commercially reasonable efforts
to complete the repurchase of the Registrable Securities specified in the
notices to the Company no later than January 20, 2001.
Section 4
Obligations of Company
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Whenever the Company effects a registration of the Registrable Securities,
the Company shall (i) prepare and, as soon as possible, file with the SEC a
registration statement
with respect to the Registrable Securities, and use its commercially
reasonable efforts to cause such registration statement to become effective
and to keep such registration statement effective until the earlier of the
sale of the Registrable Securities so registered or, with respect to the Shelf
Registration Statement, the period specified in Section 3 hereof; (ii) 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 make and to keep such registration statement effective and to comply with
the provisions of the Securities Act with respect to the sale or other
disposition of all securities proposed to be registered in such registration
statement until the earlier of the sale of the Registrable Securities so
registered or, with respect to the Shelf Registration Statement, the period
specified in Section 3 hereof; (iii) furnish to Shareholders such number of
copies of any prospectus (including any preliminary prospectus and any amended
or supplemented prospectus), in conformity with the requirements of the
Securities Act, as Shareholders may reasonably request in order to effect the
offering and sale of the Registrable Securities to be offered and sold, but
only while the Company shall be required under the provisions hereof to cause
the registration statement to remain current; (iv) use its commercially
reasonable efforts to register or qualify the Registrable Securities covered
by such registration statement under the securities or blue sky laws of such
states as Shareholders shall reasonably request, maintain any such
registration or qualification current until the earlier of the sale of the
Registrable Securities so registered or, with respect to the Shelf
Registration Statement, the period specified in Section 3 hereof, and take any
and all other commercially reasonable actions either necessary or advisable to
enable Shareholders to consummate the public sale or other disposition of the
Registrable Securities in jurisdictions where Shareholders desire to effect
such sales or other disposition; and (v) take all such other commercially
reasonable actions either necessary or appropriate to permit the Registrable
Securities held by Shareholders to be registered and disposed of in accordance
with the method of disposition described herein. Notwithstanding the
foregoing, the Company shall not be required to register or to qualify an
offering of the Registrable Securities under the laws of a state if as a
condition to so doing the Company is required to qualify to do business or to
file a general consent to service of process in any such state or
jurisdiction, unless the Company is already subject to service in such
jurisdiction. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Sections 2, 3 or 4 that selling
Shareholders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method
of disposition of such securities as shall be required to timely effect the
registration of their Registrable Securities.
Section 5
Additional Obligations of Shareholders and the Company
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If the Company has delivered a prospectus to any Shareholder and after
having done so the prospectus is amended to comply with the requirements of the
Securities Act, the Company shall promptly notify such Shareholders and, if
requested, such Shareholders shall immediately cease making offers of
Registrable Shares pursuant to the prospectus and return all prospectuses to the
Company. The Company shall promptly provide such Shareholders with revised
prospectuses and, following receipt of the revised prospectuses, such
Shareholders shall be free to resume making offers of the Registrable Shares.
In the event that, in the reasonable judgement of the Company, it is advisable
to suspend use of a
prospectus included in a registration statement due to pending material
developments or other events that have not yet been publicly disclosed and as
to which the Company believes public disclosure would be detrimental to the
Company, the Company shall notify Shareholders to such effect, and, upon
receipt of such notice, such Shareholders shall immediately discontinue any
sales of Registrable Shares pursuant to such registration statement until such
Shareholders have received copies of a supplemented or amended prospectus or
until such Shareholders are advised in writing by the Company that the then
current prospectus may be used and have received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such prospectus.
Section 6
Expenses of Registration
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The Company shall pay all of the out-of-pocket expenses incurred in
connection with any registration statements that are initiated pursuant to
Sections 2, 3 and 4 of this Agreement, including, without limitation, all SEC
and blue sky registration and filing fees, printing expenses, transfer agent and
registrar fees, the fees and disbursements of the Company's outside counsel and
independent accountants. Any underwriting discounts, fees and disbursements of
counsel to the Shareholders, selling commissions and stock transfer taxes
applicable to the Registrable Securities registered on behalf of the
Shareholders shall be borne by the Shareholders of the Registrable Securities
included in such registration.
Section 7
Indemnification
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7.1 The Company. In connection with any registration statement, the
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Company agrees to indemnify and hold harmless the Shareholders, their assignees
and each person, if any, who controls the Shareholders or their assignees within
the meaning of the Securities Act or the Exchange Act (such persons being
referred to collectively as the "Indemnified Parties") from and against any
losses, claims, damages or liabilities, joint or several, or any actions in
respect thereof (including but not limited to any losses, claims, damages,
liabilities or actions relating to purchases and sales of the Registrable
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement or prospectus or in any amendment or supplement thereto,
or arise out of, or are based upon, 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, and shall reimburse, as incurred, the Indemnified Parties for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement or any
preliminary or final prospectus or in any amendment or supplement thereto in
reliance upon and in conformity with written information pertaining to
the Shareholders and furnished to the Company by or on behalf of the
Shareholders specifically for inclusion therein, (ii) with respect to any
untrue statement or omission or alleged untrue statement or omission made in
any prospectus relating to such Registration Statement, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of
any person as to which there is a prospectus delivery requirement (a
"Delivering Seller") that sold the Registrable Shares to the person asserting
any such losses, claims, damages or liabilities to the extent that any such
loss, claim, damage or liability of such Delivering Seller results from the
fact that there was not sent or given to such person, on or prior to the
written confirmation of such sale, a copy of the relevant prospectus, as
amended and supplemented, provided that (I) the Company shall have previously
furnished copies thereof to such Delivering Seller in accordance with this
Agreement and (II) such furnished prospectus, as amended and supplemented,
would have corrected any such untrue statement or omission or alleged untrue
statement or omission, and (iii) this indemnity agreement will be in addition
to any liability which the Company may otherwise have to such Indemnified
Party.
7.2 The Shareholders. In connection with any registration statement, the
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Shareholders and/or holders of Registrable Securities will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act and the directors,
officers, agents and employees of such controlling persons from and against any
losses, claims, damages or liabilities or any actions in respect thereof to
which the Company or any such controlling person or director, officers, agent or
employee of such controlling person may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in such registration
statement or preliminary or final prospectus or in any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information pertaining to the Shareholders and furnished to the Company
by or on behalf of the Shareholders specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this clause, shall
reimburse, as incurred, the Company for any legal or other expenses reasonably
incurred by the Company or any such controlling person in connection with
investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability
which the Shareholders may otherwise have to the Company or any of its
controlling persons.
7.3 Promptly after receipt by an indemnified party under this section of
notice of the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this section, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification
obligation provided in subsection 7.1 or 7.2 above, except to the extent that it
is prejudiced or harmed in any material respect by failure to give such prompt
notice. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with one
counsel (and local counsel as necessary) reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof the indemnifying party will not be liable to such indemnified
party under this section for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. No indemnifying party shall,
without the prior written consent of the indemnified party, not to be
unreasonably withheld, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of such
action. No indemnifying party shall be liable for any amounts paid in
settlement of any action or claim without its written consent, which consent
shall not be unreasonably withheld, but if settled in accordance with its
written consent or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
7.4 If the indemnification provided for in this section is unavailable or
insufficient to hold harmless an indemnified party under subsections 7.1 or 7.2
above for any reason other than as provided in subsection 7.3 above, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to in subsection 7.1 or 7.2 above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other or (ii) if the allocation provided by the foregoing clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party or parties on the one hand and the indemnified
party on the other in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities (or actions in respect thereof)
as well as any other relevant equitable considerations. The relative fault of
the parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Shareholders or such other indemnified person, as
the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection 7.4 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection 7.4. Notwithstanding
any other provision of this subsection 7.4, the Shareholders shall not be
required to contribute any amount in excess of the amount by which the net
proceeds received by the Shareholders from the sale of the Registrable
Securities pursuant to the registration statement exceeds the amount of damages
which the Shareholders would have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. 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. For purposes of this paragraph 7.4, each officer, director,
employee, representative and agent of an indemnified party and each person, if
any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party, and each officer, director, employee, representative and
agent of the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as the Company.
7.5 The agreements contained in this section shall survive the sale of the
Registrable Securities pursuant to the registration statement, as the case may
be, and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
Section 8
Rule 144 Reporting
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With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of the Registrable
Securities to the public without registration, the Company agrees to use its
commercially reasonable efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times during
which the Shareholders hold Registrable Securities;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
and shall not voluntarily cease to be a reporting company under the Exchange
Act; and
(c) So long as the Shareholder is entitled to register any Registrable
Securities, furnish to the Shareholder forthwith upon written 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 such other reports and documents so filed as
the Shareholder may reasonably request in availing itself of any rule or
regulation of the SEC allowing the Shareholder to sell any such securities
without registration.
Section 9
Standoff Agreement
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In connection with any underwritten public offering by the Company under
the Securities Act, if the Shareholders have shares which are included in such
an offering, each selling Shareholder agrees not to sell, make any short sale
of, loan, grant any option for the purchase of, or otherwise dispose of any
Registrable Securities (other than those included in the offering, if any)
without the prior written consent of the Company or the managing
underwriter for such period of time (not to exceed the period beginning seven
(7) days prior to the effective date of the registration statement for the
offering and ending ninety (90) days after the date of the Final Prospectus
relating to such offering), as may be requested by the Company and the
managing underwriter, provided that all other selling stockholders enter into
similar agreements. For the avoidance of doubt, this restriction shall not
apply to Shareholders who are not selling Registrable Securities in such
offering.
Section 10
Grant of Additional Registration Rights
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The Shareholders acknowledge that the Company may acquire other companies
and in the course of such acquisitions may grant the equity owners thereof
registration rights with respect to their shares of the Company on terms which
would be negotiated at such time and may be materially different than the terms
of this Agreement, provided, however, that the Company shall not grant any
registration rights inconsistent with the rights of the Shareholders under this
Agreement.
Section 11
Legends
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Each certificate representing Registrable Securities shall be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S.
PERSONS, EXCEPT (A) TO TUT SYSTEMS, INC. OR ANY SUBSIDIARY THEREOF, (B) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO RULE 144 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER EXEMPTION OR SAFE HARBOUR FROM
REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE). PRIOR TO ANY OFFER, SALE
OR OTHER TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE
HOLDER WILL BE REQUIRED TO DELIVER TO TUT SYSTEMS, INC. SUCH CERTIFICATIONS OR
OTHER INFORMATION AS TUT SYSTEMS, INC. MAY REASONABLY REQUIRE (INCLUDING IN THE
CASE OF (C), (D) or (E) SUCH CERTIFICATIONS AND INFORMATION AS ARE REASONABLY
REQUIRED TO ENABLE COUNSEL FOR THE COMPANY TO RENDER AN OPINION OF COUNSEL) TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A
TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER ALSO AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED PURSUANT TO REGULATION S A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND."
Section 12
Termination of Rights
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The registration rights set forth in this Agreement shall terminate as to
any Shareholder at such time as all of the Registrable Securities then held by
such Shareholder can be sold by such Shareholder in accordance with Rule 144(k)
under the Securities Act.
Section 13
Miscellaneous
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13.1 Governing Law. This Agreement shall be governed by and construed
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under the laws of the State of California as applied to agreements entered into
solely between residents of, and to be performed entirely within, such state.
13.2 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.3 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
13.4 Notices. ll notices and other communications required or permitted
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under this Agreement or in connection herewith shall be given to or made upon
(i) if to the Shareholders, at the Shareholders' addresses as set forth in the
securities register of the Company or (ii) if to the Company, at 0000 Xxxxxx
Xxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, XXX, Attention: Chief Financial Officer.
(b) All notices and other communications given or made in accordance
with the provisions of this Agreement shall be in writing, and shall be sent by
overnight mail, return receipt requested, or by facsimile with confirmation of
receipt, and shall be deemed to be given or made when receipt is so confirmed.
(c) Any party may, by written notice to the other, alter its address
or respondent, and such notice shall be considered to have been given three (3)
days after the airmailing or faxing thereof.
13.5 Attorney's Fees. If any action at law or in equity (including
---------------
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
13.6 Amendments and Waivers. Any term of this Agreement may be amended
----------------------
and the observance of any term of this Agreement may be waived (either generally
or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Shareholders.
13.7 Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
13.8 Delays or Omissions. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, or by law or otherwise afforded to the Shareholders, shall be
cumulative and not alternative.
13.9 Currency. All references herein to dollar amounts shall be to United
--------
States dollars.
13.10 Assignment. The rights and obligations of the Shareholders under
----------
Sections 2, 3 and 4 may only be assigned to a person or entity that (i) is an
Affiliate of the Shareholder; or (ii) acquires not less than 20% of the
Registrable Securities held by the Shareholder.
13.11 Entire Agreement. This Agreement and the documents referred to
----------------
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof and any other written or oral agreements between the
parties hereto are expressly canceled.
13.12 Aggregation. All shares of Registrable Securities held or acquired
-----------
by affiliated entities shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement which are
conditioned upon the ownership of a specified number of shares by the
Shareholder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
TUT SYSTEMS, INC.
By:
---------------------
Name:
-------------------
Title:
------------------
SHAREHOLDERS:
------------------------
Xxxxx Xxxxx
CLARENDON NOMINEES LIMITED
Xxxxxx Xxxxxxxxxx
pursuant to Power of Attorney
By:
---------------------
Xxxxxx Xxxxxxxxxx
pursuant to Power of Attorney
CLARENDON TRUST CO LIMITED
By:
---------------------
Xxxxxx Xxxxxxxxxx
pursuant to Power of Attorney
[Signature Page to Registration Rights Agreement]
COMMERZ BETEILIGUNGS GMBH
By:
---------------------
Name:
-------------------
Title:
------------------
XXXXXXX PROPERTIES LIMITED
By:
---------------------
Xxxxxx Xxxxxxxxxx
pursuant to Power of Attorney
MEES PIERSON (CAYMAN) LIMITED, as Trustee for
Sofaer Funds/SCI Global Hedge Fund
By:
---------------------
Xxxxxx Xxxxxxxxxx
pursuant to Power of Attorney
HSBC FINANCIAL SERVICES (CAYMAN) LIMITED,
solely as Trustee for the Xxxx-Sci Venture Fund
By:
---------------------
Name:
-------------------
Title:
------------------
[Signature Page to Registration Rights Agreement]
PEARL FINANCE LIMITED
By:
---------------------
Xxxxxx Xxxxxxxxxx
pursuant to Power of Attorney
SANDFORD CHILDREN'S TRUST
By:
---------------------
Xxxxxx Xxxxxxxxxx
pursuant to Power of Attorney
RALEIGH NOMINEES LIMITED
By:
---------------------
Xxxxxx Xxxxxxxxxx
pursuant to Power of Attorney
------------------------
Xxxxx Xxxxx
------------------------
Xxx Xxxxxxx
------------------------
Xxxxx Xxxxxx
------------------------
Xxx Xxxx
[Signature Page to Registration Rights Agreement]
EXHIBIT A
---------
Xxxxx Xxxxx
Clarendon Nominees Limited
Clarendon Trust Co Limited
Commerz Beteiligungs GMBH
Xxxxxxx Properties Limited
Mees Pierson (Cayman) Limited,
as Trustee for Sofaer Funds/Sci Global Hedge Fund
HSBC Financial Services (Cayman) Limited
solely as Trustee for the Xxxx-Sci Venture Fund
Pearl Finance Limited
Sandford Children's Trust
Raleigh Nominees Limited
EXHIBIT B
---------
Xxxxx Xxxxx
Xxx Xxxxxxx
Xxxxx Xxxxxx
Xxx Xxxx
