Exhibit 4.7
REGISTRATION RIGHTS AGREEMENT
January 28, 2000
To Each of the Several Persons
named in Annex I hereto:
Dear Sirs:
This will confirm that in consideration of the acquisition by you
(subject to the terms of the Merger Agreement referred to below) of up to an
aggregate 653,333 shares (the "Common Shares") of Common Stock, $.001 par value
(the "Common Stock"), of Globespan, Inc., a Delaware corporation (the "Company")
pursuant to the Agreement and Plan of Merger dated as of January 12, 2000 (the
"Merger Agreement") among the Company, FTI Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of the Company ("Sub"), and Ficon
Technology, Inc., a New Jersey corporation ("FTI"), providing for, among other
things, the merger (the "Merger") of Sub with and into FTI, and as an inducement
to you to consummate the transactions contemplated by the Merger Agreement, the
Company hereby covenants and agrees with each of you, and with each subsequent
holder of Restricted Stock (as such term is defined herein), as follows:
1. CERTAIN DEFINITIONS. As used herein, the following terms shall
have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the Common Stock, $.001 par value, of the
Company as constituted as of the date of this Agreement, subject to
adjustment pursuant to the provisions of Section 9 hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"REGISTRATION EXPENSES" shall mean the expenses so described in Section
7 hereof.
"RESTRICTED STOCK" shall mean the Common Shares and any securities
issued upon exchange, adjustment or transfer of any of such Common Shares
(subject to adjustment pursuant to the provisions of Section 9 hereof), the
certificates for which are required to bear the legend set forth in Section
2 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933 or any similar
federal statute, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean the expenses so described in Section 7
hereof.
2. RESTRICTIVE LEGEND. Each certificate representing Common Shares
and each certificate issued upon exchange or transfer of any Common Shares
(other than in a public sale or as otherwise permitted by the last paragraph of
Section 3 hereof) shall be stamped or otherwise imprinted with a legend
substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THAT ACT
OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of any
Restricted Stock (other than under the circumstances described in Section 4 or 5
hereof), the holder thereof shall give written notice to the Company of its
intention to effect such transfer. Each such notice shall describe the manner of
the proposed transfer and, if requested by the Company, shall be accompanied by
an opinion of counsel reasonably satisfactory to the Company to the effect that
the proposed transfer of the Restricted Stock may be effected without
registration under the Securities Act, whereupon the holder of such Restricted
Stock shall be entitled to transfer such Restricted Stock in accordance with the
terms of its notice. Each certificate for Restricted Stock transferred as above
provided shall bear the legend set forth in Section 2, unless (i) such transfer
is in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii) the opinion
of counsel referred to above is to the further effect that the transferee and
any subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without registration under
the Securities Act.
The foregoing restrictions on transferability of Restricted Stock shall
terminate as to any particular shares of Restricted Stock (i) when such shares
shall have been effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of disposition by
the seller or sellers thereof set forth in the registration
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statement concerning such shares or (ii) when such shares are sold or are
permitted to be sold by the seller or sellers thereof pursuant to the provisions
of Rule 144(k) of the Securities Act. Whenever a holder of Restricted Stock is
able to demonstrate to the Company (and its counsel) that the provisions of Rule
144(k) of the Securities Act are available to such holder without limitation,
such holder of Restricted Stock shall be entitled to receive from the Company,
without expense, a new certificate not bearing the restrictive legend set forth
in Section 2.
4. FORM S-3 REGISTRATION. Subject to the restrictions on transfer
contained in the Merger Agreement and the Escrow Agreement (as defined in the
Merger Agreement), if the Company shall receive from any holder or holders of
Restricted Stock a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to Restricted Stock owned by such holder or holders, the reasonably
anticipated aggregate price to the public of which would exceed $1 million, the
Company will:
i) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other holders of Restricted
Stock; and
ii) as soon as practicable, effect such registration (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under applicable blue sky or other
state securities laws and appropriate compliance with applicable regulations
issued under the Securities Act and any other government requirements or
regulations) as may be so requested and as would permit or facilitate the
sale and distribution of all or such portion of such holder's or holders'
Restricted Stock as are specified in such request, together with all or such
portion of the Restricted Stock of any holder or holders joining in such
request as are specified in a written request given within thirty (30) days
after receipt of such written notice from the Company, PROVIDED, HOWEVER,
that the Company shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 4 more than once in any
180-day period. Subject to the foregoing, the Company shall file a
registration statement covering the Restricted Stock so requested to be
registered as soon as practicable after re ceipt of the request or requests
of the holders of the Restricted Stock.
5. INCIDENTAL REGISTRATION. Subject to the restrictions on transfer
contained in the Merger Agreement and the Escrow Agreement (as defined in the
Merger Agreement), if the Company at any time (other than pursuant to Section 4
hereof) proposes to register any of its Common Stock under the Securities Act
for sale to the public solely for cash, whether for its own account or for the
account of other securityholders or both (except with respect to registration
statements on Form S-4 or S-8 or another form not available for registering the
Restricted Stock for sale to the public), it will give written notice at such
time to all holders of outstanding Restricted Stock of its intention to do so
and of the intended method of sale. Upon the written request of any such holder,
given within 20 days after receipt of any such notice by the Company, to
register any of its Restricted Stock (which request shall state the number of
shares of
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Restricted Stock proposed to be included and that such shares are to be included
in any underwriting only on the same terms and conditions as the shares of
Common Stock otherwise being sold through the underwriter in connection with
such registration), the Company will use its best efforts to cause the
Restricted Stock as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the holder of such Restricted Stock so registered in
accordance with the intended method of sale applicable to the other shares of
Common Stock being sold; PROVIDED that nothing herein shall prevent the Company
from abandoning or delaying such registration at any time. The number of shares
of Restricted Stock to be included in such an underwriting may be reduced PRO
RATA among the requesting holders of Restricted Stock based upon the number of
shares of Restricted Stock so requested to be registered if and to the extent
that the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company
therein PROVIDED, HOWEVER, that such number of shares of Restricted Stock shall
not be reduced if any shares are to be included in such underwriting for the
account of any person other than (i) the Company and (ii) holders of Common
Stock exercising "demand" registration rights granted to them by the Company.
If requested by the managing underwriter(s) of an underwritten offering
of Common Stock or by the initial purchaser(s) in any offering of Common Stock
being resold pursuant to Rule 144A under the Securities Act, the holders of
Restricted Stock shall agree (on the same terms applicable to officers and
directors of the Company) not to effect any public sale or distribution of any
Restricted Stock held by such holders for a period of up to 120 days following,
and 15 days prior to, the date of the final prospectus contained in the
registration statement filed or of the offering memorandum used in connection
with such offering.
6. REGISTRATION PROCEDURES AND EXPENSES. If and whenever the Company
is required by the provisions of Section 4 or 5 hereof to use its best efforts
to effect the registration of any of the Restricted Stock under the Securities
Act, the Company will use its best efforts to effect the registration as
expeditiously as possible and will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission a
registration statement (which, in the case of an underwritten public
offering pursuant to Section 4 hereof, shall be on Form S-3) with respect to
such securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission such
amendments and sup plements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the period
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specified in paragraph (a) above and as comply with the provisions of the
Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers'
intended method of disposition set forth in such registration statement for
such period;
(c) furnish to each seller and to each underwriter such number of
copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons may reasonably
request in order to facilitate the public sale or other disposition of the
Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify, to the extent
required by applicable law, the Restricted Stock covered by such
registration statement under the se curities or blue sky laws of such
jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter, shall reasonably
request (provided 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 paragraph (d), (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of
process in any jurisdiction);
(e) immediately notify each seller under such registration statement
and each underwriter, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to furnish,
at the request of any seller, on the date that Restricted Stock is delivered
to the underwriters for sale pursuant to such registration: (i) an opinion
dated such date of counsel representing the Company for the purposes of such
registration, addressed to the underwriters and to such seller, covering
substantially the same matters with respect to the registration statement
and prospectus included therein as are customarily covered in opinions of
issuer's counsel delivered to the underwriters in comparable underwritten
public offerings, and (ii) a letter dated such date from the independent
public accountants retained by the Company, addressed to the underwriters,
in form customarily furnished to underwriters in firm commitment
underwritten public offerings providing substantially that they are indepen
dent public accountants within the meaning of the Securities Act and that,
in the opinion of such accountants, the financial statements of the Company
included in the registration statement or the prospectus, or any amendment
or supplement thereof, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters
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(including information as to the period ending no more than five business
days prior to the date of such letter) with respect to the registration in
respect of which such letter is being given as such underwriters may
reasonably request; and
(g) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by
any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement and permit such seller, attorney,
accountant or agent to participate in the preparation of such registration
statement.
For purposes of paragraphs (a) and (b) above, the period of distribution of
Restricted Stock in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Restricted Stock
in any other registration shall be deemed to extend until the earlier of the
sale of all Restricted Stock covered thereby or six months after the effective
date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as shall be
reasonably necessary in order to assure compliance with federal and applicable
state securities laws.
In connection with each registration pursuant to Sections 4 or 5 hereof
covering an underwritten public offering, the Company agrees to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between major underwriters and
companies of the Company's size and investment stature, PROVIDED, HOWEVER, that
such agreement shall not contain any such provision applicable to the Company
which is inconsistent with the provisions hereof and PROVIDED, FURTHER, HOWEVER,
that the time and place of the closing under said agreement shall be as mutually
agreed upon among the Company, such managing underwriter and the selling holders
of Restricted Stock.
7. EXPENSES. All expenses incurred by the Company in complying with
Sections 4 and 5 hereof, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars and reasonable fees and reasonable expenses of one counsel for the
sellers of Restricted Stock, but excluding any Selling Expenses, are herein
called "Registration Expenses". All underwriting discounts, selling commissions
applicable to the sale of Restricted Stock and stock transfer taxes are herein
called "Selling Expenses".
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The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Section 4 or 5 hereof. All Selling
Expenses in connection with any registration statement filed pursuant to Section
4 or 5 hereof shall be borne by the participating sellers in proportion to the
number of shares sold by each, or by such persons other than the Company (except
to the extent the Company shall be a seller) as they may agree.
8. INDEMNIFICATION. In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Section 4 or 5 hereof, the
Company will indemnify and hold harmless each seller of such Restricted Stock
thereunder and each underwriter of Restricted Stock thereunder and each other
person, if any, who controls such seller or underwriter within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Section 4 or 5, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse each such seller, each such underwriter
and each such controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that the Company will not
be liable in any such case if and to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in reliance
upon and in conformity with information furnished by such seller, such
underwriter or such controlling person in writing specifically for use in such
registration statement or prospectus and PROVIDED FURTHER, HOWEVER, that if (i)
a preliminary prospectus contains an untrue statement, alleged untrue statement,
omission or alleged omission that is corrected in the final prospectus and (ii)
the seller, under writer(s) or any controlling person delivers the preliminary
prospectus containing such untrue statement, alleged untrue statement, omission
or alleged omission to the person alleging loss and fails to deliver the final
prospectus to such person at or prior to written confirmation of the sale to
such person, then the Company will not be liable with respect to any loss,
claim, damage or liability incurred by such person arising out of or based upon
such untrue statement, alleged untrue statement, omission or alleged omission.
In the event of a registration of any of the Restricted Stock under the
Securities Act pursuant to Section 4 or 5 hereof, each seller of such Restricted
Stock thereunder, severally and not jointly, will indemnify and hold harmless
the Company and each person, if any, who controls the Company within the meaning
of the Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses,
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claims, damages or liabilities, joint or several, to which the Company or such
officer or director or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Section 4 or 5, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to the Company by such seller
specifically for use in such registration statement or prospectus; PROVIDED,
FURTHER, HOWEVER, that the liability of each seller hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of shares sold by such
seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not to exceed the proceeds (net of
underwriting discounts and commissions) received by such seller from the sale of
Restricted Stock covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party under this Agreement and otherwise to the extent the loss
arises from such omission. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 8 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; PROVIDED,
HOWEVER, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party, or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal
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defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the
right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs of this
Section 8 is unavailable or insufficient to hold harmless an indemnified party
under such paragraphs in respect of any losses, claims, damages or liabilities
or actions in respect thereof referred to therein, then each indemnifying party
shall in lieu of indemnifying such indemnified party contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or actions in such proportion as appropriate to reflect the
relative fault of the Company, on the one hand, and the underwriters and the
sellers of such Restricted Stock, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or actions as well as any other relevant equitable considerations,
including the failure to give any notice under the third paragraph of this
Section 8. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the Company, on the one hand, or the
underwriters and the sellers of such Restricted Stock on the other, and to the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and each of you agree
that it would not be just and equitable if contributions pursuant to this
paragraph were determined by PRO RATA allocation (even if all of the sellers of
such Restricted Stock were treated as one entity for such purpose) or by any
other method of allocation which did not take account of the equitable
considerations referred to above in this paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or action in respect thereof, referred to above in this paragraph, shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph, the sellers of such
Restricted Stock shall not be required to contribute any amount in excess of the
amount, if any, by which the total price at which the Common Stock sold by each
of them was offered to the public exceeds the amount of
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any damages which they would have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission. No person guilty of
fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act), shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for in this Section 8
shall be on such other terms and conditions as are at the time customary and
reasonably required by such under writers. In that event the indemnification of
the sellers of Restricted Stock in such underwriting shall at the sellers'
request be modified to conform to such terms and conditions.
9. CHANGES IN COMMON STOCK. If, and as often as, there are any
changes in the Common Stock by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed.
10. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-laws of the Company, or
any provision of any indenture, agreement or other instrument to which it or
any of its properties or assets is bound, or conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to considerations of
public policy in the case of the indemnification provisions hereof.
11. RULE 144 REPORTING. The Company agrees with you as follows:
(a) The Company shall file with the Commission in a timely manner all
reports and other documents as the Commission may prescribe under Section
13(a) or 15(d) of the Exchange Act at any time during which the Company is
subject to such reporting requirements of the Exchange Act.
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(b) The Company shall furnish to each holder of Restricted Stock
forthwith upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time while it
is subject to such reporting requirements), and of the Securities Act and
the Exchange Act (at any time while it is subject to such reporting require
ments), (ii) a copy of the most recent annual or quarterly report of the
Company, and (iii) such other reports and documents so filed as a holder may
reasonably request to avail himself of any rule or regulation of the
Commission allowing a holder of Restricted Stock to sell any such securities
without registration.
12. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto, including, without limitation, the
rights to indemnification under Section 8 hereof, shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. Without limiting the generality of the
foregoing, the registration rights conferred herein on the holders of
Restricted Stock shall inure to the benefit of any and all subsequent
holders from time to time of the Restricted Stock (but only so long as such
Restricted Stock remains Restricted Stock).
(b) So long as Restricted Stock remains subject to this
Agreement, the Company will not enter into any merger, consolidation, sale
of substantially all of its assets or other transaction in which (i) it is
not the surviving entity and (ii) following the consummation of which the
Restricted Stock or other securities, if any, issued in exchange therefor
remain subject to the restrictions on transfer described in Section 3
hereof, unless the acquiror shall expressly assume by a supplemental
agreement, executed and delivered to the remaining holders of Restricted
Stock, in form satisfactory to holders of a majority of the Restricted Stock
then remaining, the due and punctual performance of every covenant of this
Agreement on the part of the Company to be performed and observed with
respect to the Restricted Stock after such transaction.
(c) All notices, requests, consents and other communications hereunder
shall be in writing and shall be mailed by first class registered mail,
postage prepaid, addressed as fol lows:
If to the Company, to:
GlobeSpan, Inc.
000 Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: President and Chief Executive Officer
with copies to:
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Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to any holder of Restricted Stock, at their address as set forth in
Annex I hereto;
with a copy to:
Saiber Xxxxxxxxxxx Satz & Xxxxxxxxx, LLC
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Restricted Stock) or to
the holder of Restricted Stock (in the case of the Company).
(d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW JERSEY.
(e) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof, and supersedes all other prior
agreements and understandings, whether oral or written, relating to the
subject matter hereof. This Agreement may not be modified or amended, and
the provisions hereof may not be waived, except in writing signed by each of
(i) the Company and (ii) persons then holding, in the aggregate, a majority
of the Restricted Stock then held by all holders as a whole.
(f) 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, and shall become effective as to
each holder of Restricted Stock upon such holder's execution of a
counterpart after execution of a counterpart by the Company.
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Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this Agreement, whereupon this Agreement
shall become binding upon the Company and you.
Very truly yours,
GLOBESPAN, INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Title: President and Chief Executive Officer
AGREED TO AND ACCEPTED
as of the date first above written.
/s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx
/s/ Xxxx Xxxx
--------------------------------
Xxxx Xxxx
/s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
13
ANNEX I
STOCKHOLDERS
Xxxxx Xxxxxx
Xxxx Xxxx
Xxxxx Xxxxx
Xxxx Xxxxxx
