Exhibit 10.4
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LOGICVISION, INC.
SIXTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
Dated January 28, 2000
TABLE OF CONTENTS
Page
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1. Termination of Prior Agreement.................................... 1
2. Certain Definitions............................................... 1
3. Required Registration............................................. 3
4. Corporation Registration.......................................... 5
5. Obligations of the Corporation.................................... 6
6. Definition of Expenses............................................ 7
7. Expenses of Registration.......................................... 7
8. Underwriting Requirements......................................... 7
9. Delay of Registration............................................. 8
10. Indemnification................................................... 8
11. Reports Under Exchange Act........................................ 10
12. Assignment of Registration Rights................................. 10
13. Limitations on Subsequent Registration Rights..................... 10
14. Form S-3 Registration............................................. 10
15. Limitation on Obligation to Register.............................. 11
16. "Market Stand-Off" Agreement...................................... 11
17. Successors........................................................ 12
18. Entire Agreement.................................................. 12
19. Notices........................................................... 12
20. Confidentiality and Nondisclosure................................. 13
21. Changes........................................................... 14
22. Counterparts...................................................... 15
23. Headings.......................................................... 15
24. Governing Law..................................................... 15
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SIXTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of January 28,
2000, by and among LogicVision, Inc., a California corporation (the
"Corporation"), and Holders as set forth on Exhibit A hereto and as defined in
Section 2 below.
In consideration of the mutual covenants set forth in this Agreement and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Corporation and the undersigned parties hereby agree
as follows:
1. Termination of Prior Agreement. The Prior Agreement (as defined below)
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is hereby amended and restated and is terminated and shall be of no further
force or effect.
2. Certain Definitions. In addition to the definitions set forth above,
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as used in this Agreement, the following terms shall have the following
respective meanings:
"Adjustment Event" shall mean any stock dividend, stock split,
recapitalization or combination of shares.
"Commission" shall mean the U.S. Securities and Exchange Commission or any
-other U.S. federal agency at the time administering the Securities Act.
"Common Stock" shall mean the common stock of the Corporation.
"Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
"Extinguishing Warrants" shall mean (i) the Extinguishing Warrants (as
defined in the Series G Purchase Agreement), (ii) the shares of Common Stock or
other capital stock of the Corporation issuable upon exercise of the
Extinguishing Warrants and (iii) any shares of capital stock of the Corporation
issued in respect of any of the foregoing.
"Holders" shall mean the holders of Series C, D, E, F, G, H and I
Securities and holders of Warrants, Extinguishing Warrants and Series H Warrants
who are parties to this Agreement, and their assignees permitted in accordance
with Section 12 hereof.
"Initiating Holder" shall have the meaning given in Section 3.2 hereof.
"Prior Agreement" shall mean the Fifth Amended and Restated Registration
Rights Agreement dated as of May 7, 1999 among the Corporation and the holders
of Series C, D, E, F, G and H Securities and the holders of Warrants and
Extinguishing Warrants.
"Registrable Securities" shall mean shares of Common Stock issuable upon
conversion of Series C, D, E, F, G, H or I Securities (including those Series H
Securities issuable upon exercise of the Series H Warrants) and upon exercise of
the Warrants and Extinguishing Warrants and any shares of capital stock issued
in respect of Registrable Securities held by the Holders; provided that with
respect to any registration statement described in Section 3 hereof
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that includes equity securities other than Common Stock, "Registrable
Securities" shall also include Series C, D, E, F, G, H or I Securities and the
Warrants, Extinguishing Warrants and Series H Warrants.
"Registration Expenses" and "Selling Expenses" shall mean the expenses
described in Section 6 hereof.
"Securities Act" shall mean the U.S. Securities Act of 1933, as amended.
"Series C Securities" shall mean (i) the Series C-1 Convertible Preferred
Stock, Series C-2 Convertible Preferred Stock and Series C-3 Convertible
Preferred Stock (collectively, the "Series C Preferred Stock") of the
Corporation, (ii) the shares of Common Stock or other capital stock of the
Corporation issuable upon conversion of the Series C Preferred Stock and (iii)
any shares of capital stock of the Corporation issued in respect of any of the
foregoing.
"Series D Securities" shall mean (i) the Series D Convertible Preferred
Stock of the Corporation (the "Series D Preferred Stock"), (ii) the shares of
Common Stock or other capital stock of the Corporation issuable upon conversion
of the Series D Preferred Stock and (iii) any shares of capital stock of the
Corporation issued in respect of any of the foregoing.
"Series E Securities" shall mean (i) the Series E Convertible Preferred
Stock of the Corporation (the "Series E Preferred Stock"), (ii) the shares of
Common Stock or other capital stock of the Corporation issuable upon conversion
of the Series E Preferred Stock and (iii) any shares of capital stock of the
Corporation issued in respect of any of the foregoing.
"Series F Securities" shall mean (i) the Series F Convertible Preferred
Stock of the Corporation (the "Series F Preferred Stock"), including shares of
Series F Convertible Preferred Stock issued pursuant to exercise of the warrants
sold under the Series F Preferred Stock Purchase Agreement dated as of May 14,
1997, as amended for subsequent closings, (ii) the shares of Common Stock or
other capital stock of the Corporation issuable upon conversion of the Series F
Preferred Stock and (iii) any shares of capital stock of the Corporation issued
in respect of any of the foregoing.
"Series G Purchase Agreement" shall mean the Securities Purchase Agreement
dated as of January 13, 1999 by and among the Corporation and the purchasers of
Units thereunder (the "Series G Investors") with each such Unit consisting of
one share of the Corporation's Series G Preferred Stock, a warrant to purchase
.25 of a share of Common Stock, and an extinguishing warrant to purchase .45 of
a share of Common Stock.
"Series G Securities" shall mean (i) the Series G Convertible Preferred
Stock of the Corporation (the "Series G Preferred Stock"), (ii) the shares of
Common Stock or other capital stock of the Corporation issuable upon conversion
of the Series G Preferred Stock and (iii) any shares of capital stock of the
Corporation issued in respect of any of the foregoing.
"Series H Purchase Agreement" shall mean the Securities Purchase Agreement
dated as of May 7, 1999, by and among the Corporation and the purchasers of
Series H Convertible Preferred Stock hereunder (the "Series H Investors" and
together with the Series G and Series I Investors, the "Investors").
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"Series H Securities" shall mean (i) the Series H-1 Preferred Stock and
Series H2 Preferred Stock issued pursuant to exercise of the warrants sold under
the Series H Purchase Agreement of the Corporation (the "Series H Preferred
Stock"), (ii) the shares of Common Stock or other capital stock of the
Corporation issuable upon conversion of the Series H-1 Preferred Stock and
Series,H-2 Preferred Stock and (iii) any shares of Capital Stock of the
Corporation issued in respect of any of the foregoing.
"Series H Warrants" shall mean (i) Warrants to purchase Series H-2
Preferred Stock (as defined in the Series H Purchase Agreement), (ii) the shares
of Series H-2 Preferred Stock issuable upon exercise thereof, (iii) the shares
of Common Stock issuable upon conversion thereof and (iv) any shares of capital
stock of the Corporation issued in respect of any of the foregoing.
"Series I Purchase Agreement" shall mean the Securities Purchase Agreement
dated as of the date hereof by and among the Corporation and the purchasers of
Series I Convertible Preferred Stock hereunder (the "Series I Investors").
"Series I Securities" shall mean (i) the Series I Convertible Preferred
Stock of the Corporation, (ii) the shares of Common Stock or other capital stock
of the Corporation issuable upon conversion of the Series I Preferred Stock and
(iii) any shares of capital stock of __ the Corporation issued in respect of any
of the foregoing.
"Transfer" shall mean any disposition of any capital stock of the
Corporation or any interest therein which would constitute a sale thereof within
the meaning of the Securities Act.
"Warrants" shall mean (i) the Warrants (as defined in the Series G Purchase
Agreement), (ii) the shares of Common Stock or other capital stock of the
Corporation issuable upon exercise of the Warrants and (iii) any shares of
capital stock of the Corporation issued in respect of any of the foregoing.
3. Required Registration.
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3.1 At any time after the earlier of (a) January 1, 2002 or (b) six
(6) months after the effective date of the Corporation's initial registration
statement under the Securities Act if the Corporation receives a written request
from the holders of more than thirty-three percent (33%) of the Registrable
Securities then outstanding, that the Corporation file a registration statement
under the Securities Act covering the registration of Registrable Securities,
with an anticipated aggregate offering price of at least ten million dollars
($10,000,000), then the Corporation shall promptly give written notice of such
request (together with a list of the jurisdictions in which the Corporation
intends to attempt to qualify such securities under the applicable state
securities laws) to all holders of Registrable Securities. As soon as
practicable (but in no event later than ninety (90) days after the receipt by
the Corporation of such request), and subject to the limitations of Subsection
3.2 hereof, the Corporation shall file a registration statement in accordance
with Section 5 hereof, with respect to the registration under the Securities Act
of all Registrable Securities which the holders of Registrable Securities may
specify in such request in writing within thirty (30) days after receipt of such
notice from the Corporation.
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3.2 If the Holders initiating the registration request (the
"Initiating Holders") intend to distribute the Registrable Securities covered by
their request by means of an underwriting, they shall so advise the Corporation
as a part of their request, and the Corporation shall include such information
in the written notice referred to in Subsection 3.1 hereof. In such event, the
right of any holder of Registrable Securities to include securities in such
registration shall be conditioned upon the inclusion of such securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders). The Corporation shall (together with all Holders proposing
to distribute their securities in such offering) enter into an underwriting
agreement in customary form with the managing underwriter selected for such
underwriting by a majority in interest of the Initiating Holders, but subject to
the Corporation's reasonable approval.
3.3 If other holders of Registrable Securities request inclusion in
such registration, the Initiating Holders shall offer to such holders of
Registrable Securities the opportunity to include Registrable Securities held by
them in the underwriting, and may condition such offer on the acceptance by such
other holders of Registrable Securities of the further provisions of this
Section 3. All holders of Registrable Securities proposing to distribute their
securities through such underwriting shall enter into an underwriting agreement
in customary form with the representative of the underwriter(s) selected for
such underwriting by the Initiating Holders and reasonably acceptable to the
Corporation.
3.4 Notwithstanding any other provision of this Section 3, if the
managing underwriter of any such offering advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, the securities of the Corporation other than Registrable
Securities shall be excluded from such registration and underwriting to the
extent so required by such limitation. If, in the opinion of the managing
underwriter of any such offering, a limitation of the number of shares to be
underwritten is still required, the Initiating Holders shall so advise all
holders of Registrable Securities, and the number of Registrable Securities to
be included in the underwriting will be allocated among all such holders of
Registrable Securities on a pro rata basis among such Holders, in proportion of
the number of shares of Registrable Securities then owned by each; provided,
however, in the event that less than fifty percent (50%) of the Registrable
Securities requested to be registered are permitted by the managing underwriter
be included in such registration statement, then a majority in interest of the
Initiating Holders may withdraw their request to register Registrable Securities
and their request shall not count as a registration for the purposes of
Subsection 3.5 hereof. No Registrable Securities excluded from the underwriting
by reason of the underwriter's marketing limitation shall be included in such
registration. If any holder of securities to be included in such registration
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Corporation, the underwriter and the
Initiating Holders. The securities so withdrawn shall also be withdrawn from
registration. If the underwriter has not limited the number of Registrable
Securities or other securities to be underwritten, the Corporation may include
its securities for its own account in such registration if the underwriter so
agrees, and if the number of Registrable Securities and other securities which
would otherwise have been included in such registration and underwriting will
not thereby be limited.
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3.5 The Corporation is obligated to effect an aggregate of two (2)
such registrations at the request of the Holders, in each instance pursuant to
this Section 3.
3.6 Notwithstanding the foregoing, if the Corporation shall furnish
to the Initiating Holders a certificate signed by the President of the
Corporation stating that in the good faith judgment of the Board of Directors of
the Corporation, it would be detrimental to the Corporation and its shareholders
for such registration statement to be filed, the Corporation shall have the
right to defer such filing for a period of not more than one hundred twenty
(120) days after receipt of the request from the Initiating Holders; provided,
however, that the Corporation may not utilize this right more than once in any
twelve (12) month period.
4. Corporation Registration.
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4.1 If the Corporation proposes to register any of its capital stock
or other securities under the Securities Act in connection with the public
offering of such securities (other than a registration on Form X-0, Xxxx X-0 or
any form which does not include substantially the same information as would be
required to be included in a registration statement covering the public sale of
Common Stock), the Corporation shall, each such time, promptly give each holder
of Registrable Securities written notice of such registration, together with a
list of the jurisdictions in which the Corporation intends to attempt to qualify
such securities under applicable state securities laws. Upon the written request
of each holder of Registrable Securities given within thirty (30) days after
mailing of such written notice from the Corporation in accordance with this
Section 4, the Corporation shall, subject to the provisions of Section 4.2 and
Section 8 hereof, use its best efforts to include in such registration all of
the Registrable Securities that each such holder has requested to be registered.
4.2 Notwithstanding the foregoing, in the event the proposed
registration is in whole or in part an underwritten public offering, if the
managing underwriter determines and advises in writing that the inclusion of
such shares of requesting holders of Registrable Securities, together with all
shares of the Corporation's capital stock to be offered by the Corporation,
would interfere with the successful marketing of such securities, then the
number of shares of Registrable Securities otherwise to be included in the
registration statement by Holders shall be reduced pro rata among such Holders,
in the proportion of the number of shares of Registrable Securities then owned
by each. The parties agree that in a registration for an initial public offering
the managing underwriter may reduce to zero (0) the number of shares to be
included by Holders, but in all other registrations pursuant to this Section 4,
the number of shares to be included by Holders shall not be reduced to below
thirty percent (30%), or such lesser number of shares as are requested to be
included by the Holders.
4.3 No outstanding securities that are not Registrable Securities
shall be included in any registration statement unless all Registrable
Securities of requesting Holders are included.
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5. Obligations of the Corporation. Whenever required under this Agreement
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to effect the registration of any Registrable Securities, the Corporation shall,
as expeditiously as reasonably possible:
5.1 Prepare and file with the Commission a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective. Upon the request of the holders
of a majority of the Registrable Securities then outstanding registered
thereunder, the Corporation shall keep such registration statement effective for
up to one hundred eighty (180) days.
5.2 Prepare and file with the Commission such amendments and
supplements to the registration statement, and to the prospectus used in
connection with the registration statement, as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by the registration statement.
5.3 Furnish to the holders of such Registrable Securities such
numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as they may reasonably request, in order to facilitate the disposition of their
Registrable Securities covered by the registration statement.
5.4 Use its best efforts to register and qualify the Registrable
Securities covered by such registration statement under the securities laws of
such states as shall be reasonably requested by the holders of such securities;
provided, however, that the Corporation shall not be required to qualify to do
business or to file a general consent to service of process in any such state;
and provided, further, that (anything in this Agreement to the contrary
notwithstanding with respect to the bearing of expenses) if any state in which
the Registrable Securities shall be qualified shall require that all or any
portion of the Registration Expenses (as defined in Section 6) be borne by
selling shareholders, then to the extent required by that state, such
Registration Expenses shall be payable by the selling shareholders pro rata.
5.5 In the event of a public offering, on the closing date thereof if
such Registrable Securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such Registrable Securities becomes
effective, the Company shall furnish (i) an opinion dated such date, of counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the holders of
Registrable Securities requesting registration of Registrable Securities and
(ii) a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the holders requesting
registration of such Registrable Securities.
5.6 In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering.
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5.7 Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act or 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 a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
5.8 Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Corporation are then listed.
5.9 Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
5.10 Notwithstanding the above, no holder of Registrable Securities
shall be entitled to include such Registrable Securities in any registration
pursuant to this Agreement unless such selling holder shall furnish to the
Corporation such information regarding such holder, the securities held by such
holder, and the intended method of disposition of such Registrable Securities
held by such holder, as shall be required to effect the registration of such
.securities held by such holder.
6. Definition of Expenses.
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(a) "Registration Expenses" shall mean all expenses, incurred
by the Corporation in complying with Sections 3, 4 and 14 hereof, including,
without limitation registration and filing fees, printing expenses, accounting
fees and disbursements of counsel for the Corporation, blue sky fees and
expenses, and the expense of any special audits incident to or required by any
such registration (but excluding the compensation of regular employees of the
Corporation which would be paid in any event by the Corporation) and the fees
and disbursements of one special counsel for the participating Holders
designated by the majority in interest thereof.
(b) "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale, and all fees and disbursements
of separate counsel for any holder other than as set forth in Section 6.1(a).
7. Expenses of Registration. All Registration Expenses incurred in
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connection with any registration, qualification or compliance pursuant to this
Agreement shall be borne by the Corporation, except as provided in Subsection
5.4 hereof to the extent required by applicable state securities laws. All
Selling Expenses shall be borne by the holders of the securities so registered
pro rata on the basis of the number of shares so registered.
8. Underwriting Requirements. The right of any holder to registration
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pursuant to Section 4 hereof shall be conditioned upon the holder's
participation in the underwriting and the inclusion of the holder's Registrable
Securities in the underwriting to the extent provided herein. All holders
proposing to distribute their Registrable Securities through the underwriting
shall (together with the Corporation and the other holders distributing their
Registrable Securities
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through such underwriting) enter into an underwriting agreement in customary
form with the underwriter(s). Notwithstanding any other provision of Section 4
hereof and this Section 8, if the managing underwriter determines that marketing
factors require a limitation of the number of shares to be underwritten, then
the managing underwriter may (subject to the allocation priority and cutback
limitations set forth in Subsection 4.2 hereof) exclude some or all Registrable
Securities from such registration and underwriting. The Corporation shall so
advise all holders requesting registration of any such limitations imposed by
the managing underwriter.
9. Delay of Registration. No Holder shall have any right to seek or to
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obtain a court order restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
10. Indemnification. In the event any Registrable Securities are included
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in a registration statement under this Agreement:
10.1 To the extent permitted by law, the Corporation will indemnify
and hold harmless each holder of Registrable Securities and the partners,
officers and directors of each such holder, any underwriter (as defined in the
Securities Act) for such holder and each -person, if any, who controls such
holder or underwriter within the meaning of the Act or the Exchange Act, against
any losses, claims, damages, or liabilities joint or several) to which they may
become subject under the Securities Act, the Exchange Act or other federal or
state statute, regulation, or rule, 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"):
(a) any untrue statement or alleged untrue statement of a material fact
contained in the registration statement including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements thereto; (b)
the omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading; or
(c) any violation or alleged violation by the Corporation of the Securities Act,
the Exchange Act, or any other federal or state statute, regulation or rule. The
Corporation will reimburse each such holder, officer, director, underwriter or
controlling person for any legal or other expenses reasonably incurred in
connection with investigating or defending any such loss, claim, damage,
liability, or action. The indemnity agreement contained in this Subsection 10.1
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if the settlement is effected without the consent of the
Corporation (which consent shall not be unreasonably withheld), nor shall the
Corporation be liable to a holder of Registrable Securities, underwriter or
controlling person for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon a Violation which occurs in
reasonable reliance upon written information furnished to the Corporation
expressly for use in connection with such registration by such holder,
underwriter or controlling person.
10.2 To the extent permitted by law, each selling holder will
indemnify and hold harmless the Corporation, each of its directors, each of its
officers who have signed the registration statement, each person, if any, who
controls the Corporation within the meaning of the Securities Act, each
underwriter (as defined in the Securities Act) for the Corporation or such
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other holders, any person who controls such underwriter (as defined in the
Securities Act or the Exchange Act), and any other holder selling securities in
such registration statement or its directors, officers or any person who
controls such holder, against any losses, claims, damages, or liabilities joint
or several) to which the Corporation or any such director, officer, controlling
person, or underwriter or controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state statute, regulation
or rule, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any Violation, in each case only
to the extent that such Violation occurs in reasonable reliance upon written
information furnished to- the Corporation by such holder expressly for use in
connection with such registration. Each such holder will reimburse any legal or
other expenses reasonably incurred by the Corporation or any such director,
officer, controlling person, underwriter or controlling person, other holder,
officer, director, or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, or action. The indemnity
agreement contained in this Subsection 10.2 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if the
settlement is effected without the consent of the holder of Registrable
Securities, which consent shall not be unreasonably withheld; provided, further,
however, that in no event shall any indemnity under this subsection 10.2 exceed
the gross proceeds from the offering received by such holder.
10.3 Promptly after receipt by an indemnified party under this
Section 10 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 10, so notify
the indemnifying party in writing. 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 legal counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of the indemnified party by the counsel for the indemnifying
party would be inappropriate due to actual or potential differing interests
between the indemnified party and any other party represented by such counsel in
such proceeding. The failure to notify an indemnifying party within a reasonable
time of the commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve the indemnifying party of any liability to the
indemnified party under this Section 10, but the omission to notify the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 10.
10.4 If the indemnification provided for in this Section 10 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
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indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
10.5 The obligations of the Corporation and holders of Registrable
Securities under this Section 10 shall survive the completion of any offering of
Registrable Securities in a registration statement pursuant to this Agreement
and otherwise.
11. Reports Under Exchange Act. With a view to making available to the
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Holders the benefits of Rule 144 promulgated under the Securities Act ("Rule
144") and any other rule or regulation that may permit a Holder to sell
securities of the Corporation to the public without registration, the
Corporation agrees to:
11.1 Make and keep public information available, as those terms are
understood and defined in Rule 144, at all times subsequent to ninety (90) days
after the effective date of (i) the initial registration statement filed by the
Corporation for the offering of its securities to the general public, or (ii)
any registration statement filed under the Exchange Act.
11.2 File with the Commission in a timely manner all reports and
other documents required of the Corporation under the Securities Act and the
Exchange Act.
11.3 Upon request, furnish promptly to any Holder: (a) a written
statement by the Corporation that it has complied with the reporting
requirements of Rule 144 (at any time subsequent to ninety (90) days after the
effective date of the first registration statement filed by the Corporation),
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements); (b) a copy of the most recent annual or
quarterly report of the Corporation and such other reports and documents so
filed by the Corporation; and (c) such other information as may be reasonably
requested in availing any Holder of any rule or regulation which permits the
selling of any such securities without registration.
12. Assignment of Registration Rights. The right to cause the Corporation
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to register Registrable Securities, pursuant to this Agreement may be assigned
by a Holder to a transferee or assignee of such securities upon the transfer or
assignment of securities to such transferee or assignee, provided (i) that the
transferee or assignee agrees in writing to be bound by Section 16 of this
Agreement and (ii) that the Corporation is, within a reasonable time after such
transfer or assignment, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if, immediately following such transfer, the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act.
13. Limitations on Subsequent Registration Rights. The Corporation shall
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not enter into any agreement with any holder or prospective holder of any
securities of the Corporation pursuant to which such holder or prospective
holder may require the Corporation to initiate any registration of any
securities of the Corporation unless such agreement is approved by Holders who
represent a majority of the voting power of the Registrable Securities then
outstanding.
14. Form S-3 Registration. In case the Corporation shall receive from any
Holder a written request that the Corporation effect a registration on Form S-3
(or any successor short-
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form registration statement adopted by the Commission for the resale of
securities) or any related qualification or compliance with respect to all or a
part of the Registrable Securities, the Corporation will:
14.1 Promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other holders of Registrable
Securities.
14.2 As soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such holder's
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any other holder joining in such
request, as are specified in a written request given within thirty (30) days
after mailing of such written notice by the Corporation.
14.3 The Corporation shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 14: (a) if
the Corporation is not qualified as a registrant entitled to use Form S-3 (or
any similar successor form of registration statement); (b) if the holders of
Registrable Securities; together with the holders of any other securities of the
Corporation entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) aggregating less than
two percent (2%) of the Registrable Securities then outstanding; (c) if the
Corporation shall furnish to the holders of Registrable Securities a certificate
signed by the President of the Corporation stating that in the good faith
judgment of the Board of Directors of the Corporation, it would be seriously
detrimental to the Corporation and its shareholders for such Form S-3 or similar
registration to be effected at such time, in which event the Corporation shall
have the right to defer the filing of the registration statement for a period of
not more than one hundred twenty (120) days after receipt of the request of the
holder of Registrable Securities under this Section 14; provided, however, that
the Corporation shall not utilize this right more than once in any twelve (12)
month period; or (d) if the Corporation has, within the twelve (12) month period
preceding the date of such request, already effected two (2) registrations on
Form S-3 for any holders of Registrable Securities pursuant to this Section 14.
14.4 Registrations effected pursuant to this Section 14 shall not be
counted as demands for registration or registrations effected pursuant to
Section 3.5 hereof.
15. Limitation on Obligation to Register. The Corporation shall have
no obligation under this Agreement to register, or to include in a registration,
any Registrable Securities held or entitled to be held upon conversion of any
holder who may immediately sell all of such holder's Registrable Securities
under Rule 144(k) promulgated under the Securities Act (or any successor
provision) during any 90-day period, except (i) in connection with the
Corporation's initial public offering and (ii) in connection with any subsequent
public offering in connection with which such holder agrees in writing at the
request of the underwriters not to sell such Registrable Securities for a period
of at least 90-days after such offering.
16. "Market Stand-Off ` Agreement. Each holder of Registrable
Securities hereby agrees that during the 180-day period following the effective
date of a registration statement of the Corporation filed under the Securities
Act (each a "Registration Statement"), it shall not, to the
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extent requested by the Corporation or the lead underwriter with respect to such
Registration Statement (the "Lead Underwriter"), sell, contract to sell, make
any short sale of, pledge or otherwise transfer or dispose of (other than to
transferees who agree to be similarly bound) any Common Stock of the Corporation
held by it at any time during such period except Common Stock included in such
registration; provided, however, that:
(a) such agreement shall be applicable only to the initial public
offering of the Corporation which covers Common Stock; and
(b) all officers and directors of the Corporation enter into similar
agreements.
In order to enforce the foregoing covenant, each holder of Registrable
Securities further agrees to sign such documents as may be reasonably requested
by the Lead Underwriter and the Corporation may impose stop-transfer
instructions with respect to the Registrable Securities of each holder of
Registrable Securities (and the shares or securities of every owner person
subject to the foregoing restriction) until the end of such period. The
Corporation and the holders of Registrable Securities acknowledge that each Lead
Underwriter of a public offering of the Company's stock, during the period of
such offering and for the 180-day period thereafter, is an intended third party
beneficiary of this Section 16.
During the period from identification as a Lead Underwriter in connection
with a Registration Statement until, the earlier of (i) expiration of the lock-
up period specified in this Section 16 in connection with such Registration
Statement, or (ii) the abandonment of such Registration Statement by the
Corporation and such Lead Underwriter, the provisions of this Section 16 may not
be amended without the consent of such Lead Underwriter.
17. Successors. Subject to Section 12 hereof, this Agreement shall bind
-----------
and inure to the benefit of the Corporation and each Holder, and their
successors and assigns.
18. Entire Agreement. This Agreement constitutes the entire agreement
-----------------
among the parties with respect to the subject matter hereof and supersedes all
prior arrangements or understandings.
19. Notices. All `notices, requests, consents and other communications
--------
required or provided for herein to any party shall be deemed to be sufficient if
contained in a written instrument, and shall be deemed to be given when: (a)
delivered in person; (b) sent by first-class registered or certified mail with
postage prepaid; (c) delivered by overnight courier service; or (d) sent by
facsimile transmission with delivery confirmed and followed by delivery pursuant
to (c) hereof, which notice is addressed to the party at the address set forth
below, or such other address as may hereafter be designated in writing by the
party.
(i) If to the Corporation:
LogicVision, Inc.
000 Xxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx Xxxxxxx
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Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No: (000) 000-0000
Telephone No: (000) 000-0000
(ii) If to the Holders: `
The respective addresses set forth on the signature
pages hereto.
(iii) If to Intel:
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: Treasurer
Facsimile No: (000) 000-0000
With copies to:
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
Facsimile No: (000) 000-0000
20. Confidentiality and Nondisclosure
---------------------------------
20.1 Disclosure of Terms. The terms and conditions of this Agreement,
-------------------
the Series G Purchase Agreement, the Series H Purchase Agreement, the Amended
and Restated Shareholders' Agreement dated the date hereof, the Amended Restated
Right of First Offer Agreement dated the date hereof, the Warrants, the
Extinguishing Warrants and the Series H Warrants (collectively, the "Financing
Terms"), including their existence, shall be considered confidential information
and shall not be disclosed by any party hereto to any third party except in
accordance with the provisions set forth below.
20.2 Press Releases, Etc. Except as provided in the Series G Purchase
-------------------
Agreement, no announcement regarding any Investor in a press release,
conference, advertisement, announcement, professional or trade publication, mass
marketing materials or otherwise to the general public may be made without such
Investor's prior written consent.
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20.3 Permitted Disclosures. Notwithstanding the foregoing, (i) any
---------------------
party may disclose any of the Financing Terms to its current or bona fide
prospective investors, employees, investment bankers, lenders, accountants and
attorneys, in each case only where such persons or entities are under
appropriate nondisclosure obligations; (ii) any party may disclose (other than
in a press release or other public announcement described in Section 9.6(b) of
the Series G Purchase Agreement) solely the fact that the Investors are
investors in the Corporation to any third parties without the requirement for
the consent of any other party or nondisclosure obligations; and (iii) each of
Intel and Teradyne may disclose its investment in the Corporation and the
financing terms from the Series G Preferred Stock financing and Series H
Preferred Stock financing, respectively, to third parties or to the public at
its sole discretion and, if it does so, the other parties hereto shall have the
right to disclose to third parties any such information disclosed in a press
release or other public announcement by Intel or Teradyne, as the case may -be.
20.4 Legally Compelled Disclosure. In the event that any party is
----------------------------
requested or becomes legally compelled (including without limitation, pursuant
to securities laws and regulations) to disclose the existence of this Agreement,
the Series G Purchase Agreement, the Series H Purchase Agreement, the Amended
and Restated Shareholders' Agreement dated the date hereof, the Amended Restated
Right of First Offer Agreement dated the date hereof, the Warrants, the
Extinguishing Warrants, the Series H Warrants or any of the Financing Terms
hereof in contravention of the provisions of this Section 20, such party (the
"Disclosing Party") shall provide the other parties (the "Non-Disclosing
Parties") with prompt written notice of that fact so that the appropriate party
may seek (with the cooperation and reasonable efforts of the other parties) a
protective order, confidential treatment or other appropriate remedy. In such
event, the Disclosing Party shall furnish only that portion of the information
which is legally required and shall exercise reasonable efforts to obtain
reliable assurance that confidential treatment will be accorded such information
to the extent reasonably requested by any Non-Disclosing Party.
20.5 Other Information. The provisions of this Section 20 shall be in
-----------------
addition to, and not in substitution for, the provisions of any separate
nondisclosure agreement executed by any of the parties hereto with respect to
the transactions contemplated hereby. Additional disclosures and exchange of
confidential information between the Corporation and Intel (including without
limitation, any exchanges of information with any Intel board observer) shall be
governed by the terms of the Corporate Non-Disclosure Agreement No. 119947,
dated July 1, 1998, executed by the Corporation and Intel, and any Confidential
Information Transmittal Records (CITR) provided in connection therewith.
Furthermore, additional disclosures and exchange of confidential information
between the Corporation and Teradyne (including without limitation, any
exchanges of information with any Teradyne board member) shall be governed by
the terms of the Non-Disclosure Agreement executed by the Corporation and
Teradyne.
20.6 All notices required under this section shall be made pursuant
to Section 19 of this Agreement.
21. Changes. Except as otherwise expressly set forth herein, the terms of
-------
this Agreement may not be modified or amended, or any of the provisions hereof
waived, temporarily or permanently, except pursuant to the written consent of
the Corporation and of the Holders who
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represent at least two-thirds (2/3) of the Registrable Securities then
outstanding; provided, however, (i) the provisions of Section 20 shall not be
modified, amended or waived without the prior written consent of Intel with
respect to financing terms from the Series G financing or the prior written
consent of Teradyne with respect to financing terms of the Series H financing,
as the case may be, and (ii) any amendment to this Agreement shall treat all
similarly situated Holders equally.
22. Counterparts. This Agreement may be executed in any number of
------------
counterparts, and each such counterpart shall be deemed to be an original
instrument. All such counterparts together shall constitute one agreement.
23. Headings. The headings of the various sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
24. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California.
[Remainder of page intentionally blank]
I
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IN WITNESS WHEREOF, the parties have executed this Fifth Amended and
Restated Registration Rights Agreement as of the date set forth above.
CORPORATION:
LOGICVISION, INC.
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx, President
SIGNATURE PAGE TO LOGICVISION, INC. SIXTH AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
