EXHIBIT 10.7(e)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of December 16,
1998 (the "Closing Date") is by and among Netopia, Inc., a Delaware corporation
(the "Company"), Serus, LLC, a Utah limited liability company ("Serus") and the
other signatories hereto (the "Members").
RECITALS
WHEREAS, the Company has entered into an Asset Purchase
Agreement (the "Asset Purchase Agreement"), dated as of the date hereof, by and
among the Company, Serus Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of the Company, and Serus, pursuant to which the Company
is acquiring certain assets from Serus in return for a combination of cash and
shares of the Company's Common Stock, par value $.001 (the "Common Stock"), as
consideration therefor; and
WHEREAS, the Company deems it desirable for the Company to
grant certain registration rights to Serus in order to induce Serus to accept as
partial consideration the Common Stock pursuant to the terms of the Asset
Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions
As used in this Agreement:
(a) "Commission" means the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Holder" or "Holders" means Serus and the
Members, or any person or persons who shall, pursuant to Section 8 or Section 14
hereof, become parties hereto. For purposes of this Agreement, a Person will
be deemed to be a Holder of Registrable Shares whenever such Person has the then
existing right to acquire or receive such Registrable Shares (by exercise,
conversion or otherwise), whether or not such acquisition has actually been
effected.
(c) "Person" means a natural person, a partner-
ship, a corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporatedorganization or a govern-
mental entity or any department, agency or political subdivision thereof.
(d) "Registrable Shares" means at any time (i)
the Common Stock issued to Serus under the Asset Purchase Agreement or otherwise
acquired by a Holder, and (ii) any securities of the Company issued or issuable
with respect to any securities referred to in clause (i) above, upon any
stock split, stock dividend, recapitalization or similar event, excluding
shares that have been sold (A) to or through a broker, dealer or underwriter in
a public distribution or a public securities transaction, or (B) pursuant to
Rule 144 promulgated under the Securities Act (or any similar successor
provision thereto).
(e) "Registration Expenses" has the meaning
ascribed to it in Section 5 of this Agreement.
(f) "Securities Act" means the Securities Act of
1933, as amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect from time to
time.
(g) "Securities Exchange Act" means the Securities
Exchange Act of 1934, as amended, or any similar federal statute, and the rules
and regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
2. Piggyback Registrations
(a) Notice of Registration to Holders. If at any
time or from time to time the Company shall determine to register any of its
equity securities, either for its own account or the account of a security
holder or group of security holders, other than (i) a registration relating
solely to employee benefit plans on Form S-8 (or any substitute or successor
form), or (ii) a registration relating solely to a Commission Rule 145
transaction on Form S-4 (or any substitute or successor form), the Company will:
(i) promptly give to the Holders written
notice thereof, which notice shall be given not less than 30 days prior to the
date the registration statement is to be filed; and
(ii) include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made within 15 days after receipt of such written
notice from the Company, by any of the Holders.
(b) Priority on Primary Registrations. If a
registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
(i) creates a risk that the price per share in such registration will be
materially and adversely affected or (ii) exceeds the number which reasonably
can be sold in such offering, the Company will include in such registration (x)
first, the securities the Company proposes to sell, (y) second, the Registrable
Shares the Holders requested to be included in such registration plus shares
held by other parties entitled to similar rights to registration ("Other
Holders"), which in the opinion of the underwriters can be sold, pro rata,
among the Holders of such Registrable Shares and Other Holders, on the basis of
the number of Registrable Shares requested to be included in such registration
by each such Holder and Other Holder.
(c) Priority on Secondary Registrations. If a registration is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration (i) creates a risk that the price per share in such registration
will be materially and adversely affected or (ii) exceeds the number which can
reasonably be sold in such offering, the Company will include in such
registration (x) first, the securities requested to be included therein by the
holder or group of holders requesting such registration (the "Demand Holders"),
which in such opinion of such underwriters can be sold, pro rata, among the
Demand Holders, on the basis of the number of Demand Holders shares requested to
be included in such registration by each such Demand Holder, (y) second, the
securities requested to be included therein by the Holders of Registrable
Shares", which in such opinion of such underwriters can be sold, pro rata, among
the Holders of Registrable Shares, on the basis of the number of Registrable
Shares requested to be included in such registration by each such Holder, and
(z) third, the shares requested to be included by Other Holders who have
requested to be included in such registration.
(d) Withdrawal. Any selling Holder shall have the right to withdraw its
request for inclusion of its Registrable Shares in any registration pursuant to
this Section 2 by giving written notice to the Company of its request to
withdraw no later than five days before such registration statement becomes
effective.
(e) Registration Rights of Other Security Holders of the Company. The
Company may not grant registration rights to any holder of equity securities of
the Company which is inconsistent with the rights granted to the Holders of the
Registrable Shares in this Agreement or more favorable to such security holder
than those granted to Serus and the Members pursuant to this Agreement.
3. Holdback Agreements
(a) The Holders agree not to effect any public sale or distribution of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the 15 days prior to and
the 120-day period beginning on the effective date of any underwritten
registration (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree. The
Company agrees (i) not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and during the 120-day
beginning on the effective date of any underwritten registration (except as part
of such underwritten registration or pursuant to registrations on Form S-8 or
any substitute or successor form), unless the underwriters managing the
registered public offering otherwise agree, and (ii) use commercially reasonable
efforts to cause each holders of at least 5% (on a fully-diluted basis) of its
equity securities (other than equity securities acquired in a public trading
market), or any securities convertible into, or exchangeable or exercisable for,
such securities, purchased from the Company at any time (other than in a
registered public offering) to agree not to effect any public sale or
distribution of any such securities during such period (except as part of such
underwritten registration, of otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree.
4. Registration Procedures
Whenever the Holders are entitled to include their Registrable Shares in a
registered offering of the Company's shares, the Company will:
(a) furnish to each seller of Registrable Shares and the underwriters of
the securities being registered such number of copies of such registration
statement (including any documents incorporated by reference therein and all
exhibits thereto), each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such seller or underwriters may reasonably request
in order to facilitate the disposition of the Registrable Shares owned by such
seller or the sale of such securities by such underwriters;
(b) use commercially reasonable efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as any Holder reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such Holders
to consummate the disposition in such jurisdictions of the Registrable Shares
owned by the Holders; provided, however, that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (ii) consent to
general service of process in any such jurisdiction;
(c) cause all such Registrable Shares to be listed or authorized for
quotation on each securities exchange or automated quotation system on which
similar securities issued by the Company are then listed or quoted;
(d) provide a transfer agent and registrar for all such Registrable Shares
not later than the effective date of such registration statement;
(e) promptly notify each Holder of such Registrable Shares, after it shall
receive notice thereof, of the time when such registration statement has become
effective, or a supplement to any prospectus forming a part of such registration
statement has been filed;
(f) promptly notify each seller of such Registrable Shares of any request
by the Commission for the amending or supplementing of such registration
statement or prospectus or for additional information;
(g) prepare and promptly file with the Commission, and promptly notify each
Holder of such Registrable Shares of the filing of, such amendment or supplement
to such registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading;
(h) promptly advise each Holder of such Registrable Shares, immediately
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued;
(i) otherwise use commercially reasonable efforts to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement in accordance with the
intended method of disposition.
(j) Each Holder of Registrable Shares that sells such Registrable Shares
pursuant to a registration under this Agreement agrees, in connection with that
registration, as follows:
(i) Such Holder shall cooperate as with the Company, when reasonably
requested by the Company, in connection with the preparation of the registration
statement, and for so long as the Company is obligated to file and keep
effective the registration statement, shall provide to the Company, in writing,
for use in the registration statement, the information regarding such Holder and
its plan of distribution of the Registrable Shares reasonably required by the
Company to maintain the effectiveness of the Registration Statement.
(ii) During such time as such Holder may be engaged in a distribution of
the Registrable Shares, such seller shall comply with Rule 102 and Rule 104 of
Regulation M promulgated under the Securities Exchange Act and pursuant thereto
it shall, among other things, cease distribution of such Registrable Shares
pursuant to such registration statement upon receipt of written notice from the
Company that the prospectus covering the Registrable Shares contains any untrue
statement of a material fact or omits a material fact required to be stated
therein or necessary to make the statements therein not misleading.
5. Registration Expenses
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees of transfer agents and registrars, fees and expenses of compliance
with securities or blue sky laws (including, without limitation, reasonable fees
and disbursements of one counsel for the underwriters in connection with blue
sky qualification), fees of the National Association of Securities Dealers,
Inc., printing expenses, travel and other road show expenses, messenger and
delivery expenses, fees and disbursements of counsel for the Company and its
independent certified public accountants, underwriters (excluding discounts and
commissions attributable to the Registrable Shares included in such
registration) and other Persons retained by the Company (all such expenses being
herein called
"Registration Expenses") will be borne by the Company. In addition, the Company
will pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual or special audit or quarterly review, the expense of
any liability insurance obtained by the Company and the expenses and fees for
listing or authorizing for quotation the securities to be registered on each
securities exchange on which any shares of common stock are then listed or
quoted.
(b) In connection with each registration effected pursuant to this
Agreement, the Company will reimburse the Holders of Registrable Shares covered
by such registration for the reasonable fees and disbursements of one counsel
for the Holders, chosen by the Holders of a majority of such Registrable Shares.
6. Indemnification
(a) The Company agrees to indemnify, to the fullest extent permitted by
law, each Holder of Registrable Shares, its officers and directors and each
Person who controls each seller (within the meaning of the Securities Act or the
Securities Exchange Act) against all losses, claims, damages, liabilities and
expenses (including, without limitation, attorneys' fees, except as limited by
paragraph 6(c)) caused by any untrue or alleged untrue statement of a material
fact contained in any registration statement, prospectus or preliminary
prospectus, or any amendment thereof or supplement thereto, or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such Holder expressly for use therein. The Company shall enter into an
underwriting agreement in customary form containing such provisions for
indemnification and contribution as shall be reasonably requested by the
underwriters. The reimbursements required by this paragraph 6(a) will be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expenses incurred.
(b) In connection with any registration statement in which a Holder of
Registrable Shares is participating, each such Holder agrees to indemnify the
Company, its directors and executive officers and each Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities and expenses (including, without limitation, attorneys'
fees except as limited by paragraph 6(c)) resulting from any untrue statement of
a material fact contained in the registration statement, prospectus or
preliminary prospectus, or any amendment thereof or supplement thereto, or any
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information furnished in writing by
such Holder; provided that the obligation to indemnify will be in proportion to,
and such liability will be limited to, the amount received by such Holder from
the sale of Registrable Shares pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give such notice shall not
limit the rights of such Person, except to the extent such failure to give
notice shall materially prejudice the rights of the indemnifying party), and
(ii) unless in such indemnified party's reasonable judgment (with written advice
of counsel), a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment (with written advice of counsel)
of any indemnified party, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) Each party hereto agrees that if, for any reason, the indemnification
provisions contemplated by Section 6(a) or Section 6(b) are unavailable to, or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (or actions in respect thereof), in such
proportion as is appropriate, to reflect the relative fault of the indemnifying
party and the indemnified party, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation (even if the Holders or any underwriters or all of them were
treated as one entity for such purpose), or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 6(d), unless such allocation is called for after consideration of such
equitable considerations. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or expenses (or actions in
respect thereof) referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such indemnified party in connection
with investigating or, except as provided in Section 6(c), defending any such
action or claim. Notwithstanding the provisions of this Section 6(d), the
Holders shall not be required to contribute an amount greater than the dollar
amount of the proceeds received by such Holders with respect to the sale of any
Registrable Shares. 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. The Holders' obligations, in this Section 6(d), to
contribute, shall be several in proportion to the amount of Registrable Shares
registered by them, and not joint.
(e) The indemnification and contribution provided for under this Agreement
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party, and will survive, for such indemnified party
and such officers, directors or controlling Persons of such indemnified party,
the transfer of securities. The Company also agrees to make such provisions as
are reasonably requested by any indemnified party for contribution to such party
in the event the Company's indemnification is unavailable for any reason.
7. Compliance with Rule 144
(a) The Company shall (i) make and keep public information available, as
those terms are understood and defined in Rule 144 of the Securities Act, (ii)
file with the Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act, and (iii)
at the request of any Holder who proposes to sell securities in compliance with
Rule 144, forthwith furnish to such Holder a written statement of compliance
with the reporting requirements of the Commission, as set forth in Rule 144 as
such rule may be amended from time to time, and make available to the public and
such Holders such information as will enable the Holders to make sales pursuant
to Rule 144.
(b) The Holders may sell any Registrable Shares, if such sale or sales do
not violate the restrictions Rule 144 places on sales of "restricted securities"
(as defined under Rule 144).
(c) At the expiration of 12 months from the Closing Date, there will be no
contractual restrictions on any sale or sales, by any Holder, of any Registrable
Shares; provided, however, that the Company will take all reasonable affirmative
actions to ensure the Registrable Shares are no longer "restricted securities"
(as defined under Rule 144), including (i) making available adequate current
public information with respect to the Company, as issuer of the securities, as
required by Rule 144(c), and (ii) all other actions which the Company is
required to perform to ensure the Registrable Shares no longer qualify as
restricted securities.
(d) At the expiration of 24 months from the Closing Date, and upon demand
of any Holder, the Company shall effect a removal of the legend on each stock
certificate held by the Holder which identifies the security represented thereby
as a "restricted security" (as defined under Rule 144).
8. Transfers by Holders
Any Holder may transfer the registration rights it holds pursuant to this
Agreement to any other Person who after such transfer holds at least 35,000
shares, or if less than 35,000 shares, then all shares held by a Holder;
provided, however, that such transfer will be permitted only if the transferee
or transferees agree(s) to comply with, and otherwise be bound by, all the terms
and conditions this Agreement.
9. Participation in Underwritten Registrations
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements, and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
(b) No Person may participate in any registration hereunder if such
Person's Registrable Shares could then be sold in any three-month period without
registration in accordance with Rule 144, and in such case, such Person shall
not be bound by any of the terms or obligations of this Agreement.
10. Representations and Warranties of Serus and the Members
(a) Investment Representations and Warranties. As of the Closing Date,
Serus and the Members hereby jointly and severally represent and warrant to the
Company that:
(i) The Registrable Shares issued under the Asset Purchase Agreement are
being acquired for the Serus's own account for investment purposes only, and not
as a nominee or agent, and not with a view to the resale or distribution of all
or any part of such Registrable Shares. Serus does not have any contract,
undertaking, agreement or arrangement with any Person to sell, transfer or grant
a participating interest, in the Registrable Shares issued pursuant to the Asset
Purchase Agreement.
(ii) Serus has been furnished with, and has had access to, such information
as it considers necessary or appropriate for deciding whether to invest in the
Company, and Serus has had an opportunity to ask questions and receive answers
from the Company and its representatives regarding the terms and conditions of
issuance of the Registrable Shares pursuant to the Asset Purchase Agreement.
(iii) Serus and the Members can bear the economic risk of the investment in
the Registrable Shares issued under the Asset Purchase Agreement and have such
knowledge and experience in financial or business matters as to be capable of
evaluating the merits and risks of such investment in the Company.
(b) Restricted Securities. The Registrable Shares issued under the Asset
Purchase Agreement have not been registered under the Securities Act on the
ground that the sale provided for in the Asset Purchase Agreement is exempt from
the registration requirements of the Securities Act, and the Company's reliance
on such exemption is predicated, in part, on the representations and warranties
in Section 10(a) above. Serus and the Members hereby confirm that Serus and the
Members have been informed that the Registrable Shares issued under the Asset
Purchase Agreement such Shares are "restricted securities" (as defined in Rule
144) and may not be offered and sold unless such Shares are first registered
under the Securities Act or unless an exemption from registration under the
Securities Act is available. Accordingly, Serus and the Members hereby
acknowledge that the Registrable Shares issued under the Asset Purchase
Agreement may not be transferred except in compliance with applicable securities
laws and regulations.
(c) Restrictive Legends. Subject to Section 7(c), the stock certificates
for the Registrable Shares issued under the Asset Purchase Agreement on the
Closing Date shall be endorsed with any restrictive legend required by state law
and the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND
MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE
RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF AN EXEMPTION FROM
SUCH REGISTRATION OR QUALIFICATION IS AVAILABLE.
11. Adjustments Affecting Registrable Shares
The Company will not take any action, or permit any change to occur, with
respect to its securities, which would adversely affect the ability of the
Holders of the Registrable Shares to include such Holder's Registrable Shares in
a registration undertaken pursuant to this Agreement, or which would adversely
affect the marketability of such Registrable Shares in any such registration.
12. Remedies
Any Person having rights under any provision of this Agreement will be
entitled to enforce such rights specifically, to recover damages caused by
reason of any breach of any provision of this Agreement, and to exercise all
other rights granted by law.
13. Amendments and Waivers
Except as otherwise expressly provided herein, the provisions of this
Agreement may be amended or waived at any time only by the written agreement of
the Company and the Holders of 50% of the Registrable Shares, provided that any
such amendment or waiver shall apply equally to all Holders of Registrable
Shares, except to the extent a Holder of Registrable Shares, adversely affected
by unequal treatment, otherwise consents. Any waiver, permit, consent or
approval of any kind or character, on the part of any such Holders, of any
provision or condition of this Agreement, must be made in writing and shall be
effective only to the extent specifically set forth in writing.
14. Successors and Assigns
All covenants (other than those in Section 10, which are made only as of
the Closing Date) and agreements contained in this Agreement by or on behalf of
any of the parties hereto (including, without limitation, any Holder) will bind
and inure to the benefit of the respective successors and assigns of the parties
hereto (including, without limitation, any Holder) whether so expressed or not.
In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of the Holders of
Registrable Shares are also for the benefit of, and enforceable by, any
subsequent Holder of Registrable Shares who agrees to be bound by this
Agreement.
15. Final Agreement
This Agreement constitutes the final agreement of the parties concerning
the matters referred to herein, and supersedes all prior agreements and
understandings.
16. Severability
Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be prohibited by, or invalid under,
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this Agreement.
17. Descriptive Heading
The descriptive headings of this Agreement are inserted for convenience of
reference only and do not constitute a part of, and shall not be utilized in
interpreting, this Agreement.
18. Notices
Any notices required or permitted to be sent hereunder shall be delivered
personally, or mailed by certified mail, return receipt requested, or delivered
by overnight courier service to the addresses below, the addresses on the
signature page hereto or such other addresses as shall be given by notice
delivered hereunder, and shall be deemed to have been given upon delivery, if
delivered personally, three business days after mailing, if mailed, or one
business day after delivery to the courier, if delivered by overnight courier
service:
If to the Holders of Registrable Shares, to the addresses set forth on the
stock record books of the Company;
with a copy to:
Xxxxxxxxx Xxxxxxxxx Law Xxxxxx
000 Xxxxx Xxxxx Xxxx., Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
19. Governing law
The validity, meaning and effect of this agreement shall be determined in
accordance with the laws of the State of California applicable to contracts made
and to be performed in that state, without regard to principles of conflicts of
laws.
20. Counterparts
This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed an original, and such
counterparts together shall constitute one instrument. Each party shall receive
a duplicate original of the counterpart copy or copies executed by it and the
Company.
21. Attorneys Fees
In the event of any action or suit, based upon, or arising out of, any
actual or alleged breach by any party, of any representation, warranty or
agreement in this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and expenses of such action or suit from the
other party, in addition to any other relief ordered by the court.
[The Remainder of this Page is Blank.]
This Registration Agreement was executed on the date first set
forth above.
NETOPIA, INC.
By:/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: V.P. and CFO
SERUS LLC
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Managing Director
STUDEO, INC.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Director of Strategy
Address:
XXXXXX XXXXXXX
/s/ Xxxxxx XxXxxxx
Address:
XXXX XXXXXXXXX
/s/ Xxxx Xxxxxxxxx
Address:
XXXX XXXXXXXXX
/s/ Xxxx Xxxxxxxxx
Address:
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
Address:
XXXX XXXXXXXX
/s/ Xxxx Xxxxxxxx
Address:
