EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of the
13th day of November, 1998, (the "Closing Date") by and between Avant!
Corporation, a Delaware corporation (the "Company"), and each of the persons
listed on Schedule A hereto (collectively, the "Shareholders").
RECITALS
WHEREAS, the Company, Artemis Merger Corporation, a California
corporation and subsidiary of the Company and interHDL, Inc., a California
corporation ("interHDL") are parties to the Agreement and Plan of
Reorganization, dated the Closing Date (together with all exhibits,
schedules, supplements and any amendments thereto, the "Merger Agreement"),
pursuant to which interHDL shall become a wholly owned subsidiary of the
Company (the "Merger");
WHEREAS, pursuant to the Merger, the Shareholders shall exchange the
shares of capital stock of interHDL held by such Shareholders for cash and
shares of common stock of the Company (the "Common Stock");
WHEREAS, the execution and delivery of this Agreement is a condition to
the Closing of the Merger; and
WHEREAS, all terms not otherwise defined herein shall have the same
meanings ascribed to them in the Merger Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "1934 Act" shall mean the Securities Exchange Act
of 1934, as amended.
(c) The term "Holder" means a Shareholder or any transferee of
a Shareholder to whom registration rights granted under this Agreement are
assigned pursuant to Section 1.6 of this Agreement.
(d) The terms "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in
compliance with the Act, and the declaration or ordering of effectiveness of
such registration statement or document.
(e) The term "Registrable Securities" means the Common Stock
of the Company issued to the Shareholders in the Merger, and any Common Stock
of the Company issued as a dividend or other distribution with respect to
such Common Stock.
(f) The term "Rule 144" shall mean Rule 144 promulgated under
the Act, as amended, or any similar successor rule thereto that may be
promulgated by the SEC.
(g) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 REGISTRATION.
(a) The Company shall use all commercially reasonable efforts
to effect as soon as practicable at its own expense (excluding any brokers
fees or commissions) a registration statement on Form S-3 and any related
qualification or compliance with respect to all of the Registrable Securities
so as to permit or facilitate the sale and distribution of all of the
Registrable Securities as are specified by such Shareholder in writing upon
execution hereof. The Company agrees to request the immediate acceleration
of the effectiveness of the registration statement as soon as practicable but
no less than within three (3) business days of any notification by the SEC of
its decision not to review the registration statement or its determination
that it has completed its review of the registration statement and has no
further comments for the Company.
(b) The Company agrees it will not include any additional
securities of the Company other than the Registerable Securities and will not
permit any other person or entity to include any additional securities in the
registration statement to be filed pursuant to this Section 1.
1.3 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the
Company shall:
(a) Within five (5) business days of the Closing Date,
prepare and file with the SEC a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration
statement to become effective, and, subject to the provisions below, use its
best efforts to keep such registration statement effective for one (1) year
from the Closing Date or, if earlier, until the distribution contemplated in
the registration statement has been completed. If at any time after a
registration statement becomes effective, the Company advises the
Shareholders in writing that the registration statement shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any prospectus comprising a part of such registration
statement shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in
2
light of the circumstances under which they were made, not misleading or the
occurrence or existence of any pending corporate development that, in the
reasonable discretion of the Company, makes it appropriate to suspend the
availability of the registration statement and the related prospectus, the
Company shall give notice to the Shareholders that the availability of the
registration statement is suspended and the Shareholders shall suspend any
further sale of Registrable Securities pursuant to the registration statement
until the Shareholders have been informed in writing that the registration
statement is available. The Company shall be entitled to exercise its right
to suspend the availability of the registration statement for a period
exceeding not more than thirty (30) days in any six (6) month period, not to
exceed in the aggregate sixty (60) days in any twelve (12) month period.
However, the Company may not suspend the registration statement unless the
Company contemporaneously closes its trading window for Company insiders.
When selling Registrable Securities, a Shareholder shall follow the
procedures set forth in Section 1.9 and may presume that no suspension is in
effect if a trade is made in the manner described in that section.
(b) Subject to subsection 1.3(a), prepare and file with the
SEC such amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement.
(c) Furnish to the Shareholders requesting registration such
numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as they
may reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities
or Blue Sky laws of such jurisdictions as shall be reasonably requested by
the Shareholders; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such states or
jurisdictions, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Act.
(e) Amend its listing application with the Nasdaq Stock
Market to include the Registerable Securities as soon as practicable after
the Closing Date.
(f) Notify each Shareholder, promptly after the Company shall
have received notice thereof, of the date and time the registration statement
and each post-effective amendment thereto has become effective or a
supplement to any prospectus forming a part of such registration statement
has been filed.
1.4 INFORMATION FROM SHAREHOLDERS. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to
this Section 1 with respect to the Registrable Securities of a Shareholder
that such Shareholder shall furnish to the Company the information requested
on Appendix 1.4 hereto, which shall include such information regarding
himself or herself, the Registrable Securities held by him or her, and the
intended method of
3
disposition of such securities, and such other information as shall be
reasonably requested by the Company and required to effect the registration
of the Registrable Securities.
1.5 EXPENSES OF REGISTRATION. All expenses of the Shareholders,
except underwriting discounts (if any) or commissions, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company shall be
borne by the Company; provided, however, that the Company shall not be
required to pay any legal and accounting fees incurred by any Shareholders.
1.6 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned by a Shareholder to a transferee of Registrable Securities only if:
(a) the Company is, prior to such transfer, furnished with written notice of
the name and address of such transferee and the Registerable Securities with
respect to which such registration rights are being assigned and a copy of a
duly executed written instrument in form reasonably satisfactory to the
Company by which such transferee assumes all of the obligations and
liabilities of its transferor hereunder and agrees itself to be bound hereby;
(b) immediately following such transfer the disposition of such Registerable
Securities by the transferee is restricted under the Act; and (c) such
assignment includes all of the Registerable Securities originally issued to
the transferee; PROVIDED, HOWEVER, that such share limitation shall not apply
to transfers by a Shareholder to shareholders, partners, members of the
shareholder (including spouses and ancestors, lineal descendants, and
siblings (or trusts for the benefit of any of the foregoing) of such
shareholders, partners, or members who acquire Registerable Securities by
right, will or intestate succession) if all such transferees or assignees
agree in writing to appoint a single representative as their attorney-in-fact
for the purpose of receiving any notices and exercising their rights under
this Agreement.
1.7 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) Each Shareholder will, if Registrable Securities held by
such Shareholder are included in the securities as to which such registration
is being effected, indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration statement,
each person, if any, who controls the Company within the meaning of the Act,
any other Shareholder selling securities in such registration statement and
any controlling person of any such Shareholder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Act or the 1934 Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereto) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii)
any omission or alleged omission to state therein a material fact required to
be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the Company of the
Act, the 1934 Act, any rule or regulation promulgated under the Act or the
1934 Act or other federal or State law, in each case to the extent that such
Violation is
4
contained in any written information furnished by Shareholder for inclusion
in such registration; and Shareholder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 1.7(a), in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection 1.7(a)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of Shareholder, which consent shall not be unreasonably withheld;
PROVIDED, THAT, in no event shall any indemnity under this subsection 1.7(a)
exceed the net proceeds from the offering received by Shareholder.
(b) The Company will indemnify and hold harmless each
Shareholder whose Registrable Securities were included in the securities as
to which a registration was effected, as well as each such Shareholder's
officers, directors, partners, legal counsel and persons controlling such
Shareholder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may be subject, under the Act
or the 1934 Act or other federal or state law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of
or are based upon any of the following statements, omissions or violations
(collectively, a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) any omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by such Shareholder of the Act, the 1934 Act or any rule or
regulation promulgated under the Act or the 1934 Act or other federal or
state law, in each case to the extent that such Violation is based on any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any written information furnished by the
Company in an instrument duly executed by such Shareholder.
(c) Promptly after receipt by an indemnified party under this
Section 1.7 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 1.7,
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in at
the indemnifying party's expense, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly noticed, to
assume the defense thereof with counsel mutually satisfactory to the parties
at the indemnifying party's expense; provided, however, that an indemnified
party (together with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
conflicts of interests between such indemnified party and any other party
represented by such counsel in such proceeding. No indemnifying party, in
defense of any such claim or litigation, shall, except with the consent of
each indemnified party, consent to entry of any judgement or enter into any
settlement which does not include as an unconditional term thereof the giving
by
5
the claimant or plaintiff to the indemnified party of a release from all
liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 1.7
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 therein, 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 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.
Notwithstanding the provisions of this paragraph (d), no Shareholder shall be
required to contribute any amount in excess of the amount of net proceeds
received by such Shareholder from the sale of such Shareholder's Registerable
Securities. Moreover, no person or entity guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the Act shall be
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of each Shareholder under this Section
1.7 shall survive the completion of any offering of Registrable Securities in
a registration statement under this Agreement.
(f) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in an underwriting
agreement (if any) entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
1.8 TERMINATION OF REGISTRATION RIGHTS. The registration rights
provided in this Section 1 shall terminate with respect to a particular
Shareholder if the Registrable Securities owned by such Shareholder have been
held for the necessary holding period under Rule 144 and all shares of
Registrable Securities held by such Shareholder may be sold pursuant to Rule
144 in any three (3) month period. Upon the termination of registration
rights pursuant to this Section 1.8, the Company shall have the right to
withdraw the registration statement, or any portion thereof, covering the
Registrable Securities held by such particular Shareholder.
1.9 NOTICE BY SELLING SHAREHOLDERS. Each Shareholder who intends
to sell any or all of his shares of Registrable Securities pursuant to the
provisions of this Section 1 shall give advance written notice to Xxxxx
Xxxxxxx, the Company's General Counsel, of such intention and shall be free
to sell any or all of his shares of Registrable Securities if such
6
Shareholder has not received notice to the contrary within three (3) business
days of the receipt by Xx. Xxxxxxx of such written notice.
2. MISCELLANEOUS.
2.1 GENERAL. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
2.2 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California without giving effect to
the conflicts of laws principles thereof.
2.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.4 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.
2.5 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon facsimile (with confirmed receipt), or personal
delivery to the party to be notified at the address indicated for such party
on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
2.6 EXPENSES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements
in addition to any other relief to which such party may be entitled.
2.7 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 holding a majority of the Registrable Securities.
2.8 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be
excluded 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.
2.9 ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject hereof.
7
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
AVANT! CORPORATION:
By:
-------------------------------------
Xxxxxx X. Xxx,
President and Chief Executive Officer
Address: 00000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
SHAREHOLDERS:
By:
-------------------------------------
Address:
--------------------------------
--------------------------------
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
SCHEDULE A
APPENDIX 1.4
SHAREHOLDER INFORMATION:
All information furnished below by the undersigned for use in the
Registration Statement on Form S-3 is, and on the date such shares registered
thereunder, will be true, correct, and complete in all material respects, and
does not, and on the date on which the undersigned sells such shares, will
not, contain any untrue statement of a material fact or omit to state any
material fact necessary to make such information not misleading. By
completing and returning this information statement, the undersigned hereby
consents to the use of his or her name, address, and share ownership
information in the Form S-3 of Avant! Corporation.
A. DATE.
Fill in Date:
------------------------------
B. NAME. Print:
Print and sign name or names
exactly as name or names appear on ------------------------------
share certificate. If certificate is held
in more than one name, all must sign.
------------------------------
Sign:
------------------------------
------------------------------
C. ADDRESS.
Fill in your address:
------------------------------
------------------------------
------------------------------
D. Stock Owned.
Of Record Beneficially
Fill in number of shares of
Common Stock owned of record
and beneficially.
------------------- -------------------
E. AGGREGATE NUMBER OF SHARES OF COMMON STOCK TO BE SOLD:
Shares
------------
F. STATUS.
The undersigned is an individual ( ), partnership ( ), corporation ( ),
or other, as more fully described below ( ). The undersigned is not acting
in a fiduciary capacity or as a nominee in selling shares in the public
offering, except as indicated below.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
