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EXHIBIT 4.03
PIGGYBACK REGISTRATION RIGHTS AGREEMENT
This Piggyback Registration Rights Agreement (this "Agreement") is made
and entered into as of _______________ by and among Transmeta Corporation, a
California corporation (the "Company"), and _______________ ("_________").
R E C I T A L S
A. In connection with certain _______________ being made available by
_______ to the Company pursuant to that certain _______________ Agreement
between the Company and _______, the Company has agreed to grant to _______ that
certain Warrant, of even date herewith (the "Warrant"), to purchase
_______________ shares of the Company's Common Stock ("Common Stock") and to
grant _______ certain piggyback registration rights with respect to such shares
of Common Stock.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1 Definitions.
(a) Registration. The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as amended
(the "Securities Act"), and the declaration or ordering of effectiveness of such
registration statement.
(b) Registrable Securities. The term "Registrable Securities"
means (i) all the shares of Common Stock issued or issuable upon the exercise of
the Warrant, in each case that are now owned or may hereafter be acquired by
Holder or any of Holder's permitted successors and assigns; (ii) any shares of
Common Stock issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, all such
shares of Common Stock described in clause (i) of this subsection (b); excluding
in all cases, however, any Registrable Securities sold by a person in a
transaction in which rights under this Agreement are not assigned in accordance
with this Agreement or any Registrable Securities sold to the public or sold
pursuant to Rule 144 promulgated under the Securities Act.
(c) Registrable Securities Then Outstanding. The number of
shares of "Registrable Securities then outstanding" will mean the number of
shares of Common Stock which are Registrable Securities and (i) are then issued
and outstanding or (ii) are then issuable pursuant to the exercise or conversion
of then outstanding and then exercisable options, warrants or convertible
securities, including without limitation the Warrant.
(d) Holder. The term "Holder" means any person (i) owning of
record (A) the Warrant or (B) Registrable Securities that have not been sold to
the public or pursuant to Rule 144 promulgated under the Securities Act and (ii)
if such person is not _______, then who is an assignee of record of such Warrant
or Registrable Securities to whom rights under this Agreement have been duly
assigned in accordance with this Agreement.
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(e) SEC. The term "SEC" or "Commission" means the U.S.
Securities and Exchange Commission.
2. Piggyback Registrations. The Company will notify all Holders in
writing at least thirty (30) days prior to filing any registration statement
under the Securities Act for purposes of effecting a public offering of
securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but
excluding registration statements relating to any employee benefit plan or a
corporate reorganization) and will afford each such Holder an opportunity to
include in such registration statement all or any part of the Registrable
Securities then held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by
such Holder will, within twenty (20) days after receipt of the above-described
notice from the Company, so notify the Company in writing, and in such notice
will inform the Company of the number of Registrable Securities such Holder
wishes to include in such registration statement. If a Holder decides not to
include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder will nevertheless continue to have
the right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
(a) Underwriting. If a registration statement under which the
Company gives notice under this Section 2 is for an underwritten offering, then
the Company will so advise the Holders. In such event, the right of any Holder
to be included in a registration pursuant to this Section 2 will be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their Registrable Securities through
such underwriting will enter into an underwriting agreement in customary form
with the managing underwriter or underwriter(s) selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the managing
underwriter determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude any and all shares (including Registrable Securities)
from the registration and the underwriting; provided, however, that the right of
the underwriters to exclude shares (including Registrable Securities) in any
proportion from the registration and underwriting as described above will be
restricted so that all shares that are not Registrable Securities and are held
of record by persons who are employees or directors of the Company (or any
subsidiary of the Company) will first be excluded from such registration and
underwriting before any Registrable Securities are so excluded. If any Holder
disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the underwriter,
delivered at least ten (10) business days prior to the effective date of the
registration statement. Any Registrable Securities excluded or withdrawn from
such underwriting will be excluded and withdrawn from the registration.
(b) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 2 (excluding underwriters' and brokers'
discounts and commissions), including, without limitation all federal and "blue
sky" registration and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company, will be borne by the Company.
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3. Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Agreement, the Company
will, as expeditiously as reasonably possible:
(a) Registration Statement. 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, upon
the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to
ninety (90) days.
(b) Amendments and Supplements. 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 Securities Act with respect to
the disposition of all securities covered by such registration statement.
(c) Prospectus. Furnish to the Holders such number of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them that are included in such registration.
(d) Blue Sky. 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 will be reasonably requested by the
Holders, provided that the Company will 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.
(e) Underwriting. In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering. Each Holder participating in such underwriting will also enter into
and perform its obligations under such an agreement.
(f) Notification. Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing.
(g) Opinion and Comfort Letter. Furnish, at the request of any
Holder requesting registration of Registrable Securities, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to a majority in
interest of the Holders requesting registration, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a
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"comfort" letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
4. Furnish Information. It will be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2 hereof that
the selling Holders will furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as will be required to timely effect the
registration of their Registrable Securities.
5. Delay of Registration. No Holder will have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
6. Indemnification. In the event any Registrable Securities are included
in a registration statement under Section 2 hereof:
(a) By the Company. To the extent permitted by law, the Company
will indemnify and hold harmless each Holder, the partners, officers and
directors of each Holder, any underwriter (as defined in the Securities Act) for
such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Securities Exchange Act of 1934,
as amended, (the "1934 Act"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the l934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"):
(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) the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements
therein not misleading, or
(iii) any violation or alleged violation by the Company of the
Securities Act, the 1934 Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the 1934 Act or
any federal or state securities law in connection with the offering
covered by such registration statement;
and the Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided however, that the
indemnity agreement contained in this Section 6 will 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 the Company (which consent will
not be unreasonably
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withheld), nor will the Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by such Holder, partner, officer, director, underwriter or
controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company, each of its directors, each
of its officers who have signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter and any other Holder selling securities under such registration
statement or any of such other Holder's partners, directors or officers or any
person who controls such Holder within the meaning of the Securities Act or the
1934 Act, against any losses, claims, damages or liabilities (joint or several)
to which the Company or any such director, officer, controlling person,
underwriter or other such Holder, partner or director, officer or controlling
person of such other Holder may become subject under the Securities Act, 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 Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter or other Holder, partner, officer, director or controlling person of
such other Holder in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 6 will 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 the Holder, which consent will not
be unreasonably withheld; and provided further, that the total amounts payable
in indemnity by a Holder under this Section 6 in respect of any Violation will
not exceed the net proceeds received by such Holder in the registered offering
out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under this
Section 6 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 6, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party will have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party will
have the right to retain its own 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 conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, will relieve such indemnifying party of any liability to the indemnified
party under this Section 6, but the omission to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 6.
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(d) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of the Company and Holders are subject to the condition
that, insofar as they relate to any Violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus), such indemnity agreement will not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) any Holder exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section 6 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 6 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this Section
6; then, and in each such case, the Company and such Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such Holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by and sold under the
registration statement bears to the public offering price of all securities
offered by and sold under such registration statement, and the Company and other
selling Holders are responsible for the remaining portion; provided, however,
that, in any such case, (A) no such Holder will be required to contribute any
amount in excess of the public offering price of all such Registrable Securities
offered and sold by such Holder pursuant to such registration statement; and (B)
no person or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
(f) Survival. The obligations of the Company and Holders under
this Section 6 will survive the completion of any offering of Registrable
Securities in a registration statement, and otherwise.
7. "Market Stand-Off" Agreement. _______ and each Holder hereby agrees
that it will not, to the extent requested by the Company or an underwriter of
securities of the Company, sell or otherwise transfer or dispose of any
Registrable Securities or other shares of stock of the Company, or subject to
options, warrants or other rights, then owned by such _______ or Holder (other
than to donees or partners of _______ or the Holder who agree to be similarly
bound) for up to one hundred eighty (180) days following the effective date of a
registration statement of the Company filed under the Securities Act; provided,
however, that all executive officers and directors of the Company then holding
Common Stock of the Company enter into similar agreements. In order to enforce
the foregoing covenant, the Company will have the right to place restrictive
legends on the certificates representing the shares subject to this Section and
to impose stop transfer instructions with respect to the Registrable Securities
and such other shares of stock
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of _______ and each Holder (and the shares or securities of every other person
subject to the foregoing restriction) until the end of such period.
8. Termination of the Company's Obligations. The Company will have no
obligations pursuant to Section 2 with respect to: (a) any request or requests
for registration made by any Holder on a date more than five (5) years after the
closing date of the Company's initial public offering of its Common Stock
pursuant to an effective registration statement filed under the Securities Act;
or (b) any Registrable Securities proposed to be sold by a Holder in a
registration pursuant to Section 2 hereof if, in the opinion of counsel to the
Company, all such Registrable Securities proposed to be sold by a Holder may be
sold in a three-month period without registration under the Securities Act
pursuant to Rule 144 under the Securities Act and such Holder holds less than
one percent (1%) of the outstanding stock of the Company.
9. Assignment. Notwithstanding anything herein to the contrary, the
rights of a Holder under this Agreement may be assigned only to a party who
acquires the Warrant or at least 10,000 shares of Registrable Securities;
provided, however that no party may be assigned any of the foregoing rights
unless the Company is given written notice by the assigning party at the time of
such assignment stating the name and address of the assignee and identifying the
securities of the Company as to which the rights in question are being assigned;
and provided further that any such assignee will receive such assigned rights
subject to all the terms and conditions of this Agreement, including without
limitation the provisions of this Section 9.
10. Miscellaneous.
(a) Termination of this Agreement. This Agreement may be
terminated voluntarily by written agreement of (1) the Company and (2) the
Holders of the Warrant and/or then outstanding shares of Common Stock issued
upon exercise of the Warrant representing at least sixty-six and two-thirds
percent (66.67%) of the voting power of all shares of Common Stock then issuable
upon exercise of the Warrant and such outstanding shares of Common Stock
together. Such termination will be binding upon all Holders, if any, of the
Warrant and/or Registrable Securities who do not sign such termination
agreement.
(b) Notices. Unless otherwise provided, any notice required or
permitted under this Agreement will be given in writing and will be deemed
effectively given upon personal delivery to the party to be notified, or three
(3) days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid, or by deposit with a nationally recognized
courier service such as FedEx, or by facsimile with confirmed receipt and
addressed to the party to be notified at the address indicated for the Company
and _______ on the signature page hereof, or at such other address as any party
may designate by giving at least ten (10) days advance written notice to all
other parties, pursuant to this Section 10(b).
(c) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings duties or obligations between the parties with
respect to the subject matter hereof.
(d) Amendment and Waiver. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance
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and either retroactively or prospectively) only with the written consent of (1)
the Company and (2) the Holders of the Warrant and/or then outstanding shares of
Common Stock issued upon exercise of the Warrant representing at least sixty-six
and two-thirds percent (66.67%) of the voting power of all shares of Common
Stock then issuable upon exercise of the Warrant and such outstanding shares of
Common Stock together; provided that no such amendment or waiver will increase
the obligation of Holder or any Holder hereunder without the specific written
consent of such Holder or Holder, as applicable. Any amendment or waiver
effected in accordance with this Section 10(d) will be binding upon Holder, each
Holder, each permitted successor or assignee of Holder or such Holder, and the
Company.
(e) Governing Law. This Agreement will be governed by and
construed under the internal laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely
within California, without reference to principles of conflict of laws or choice
of laws.
(f) Severability. If any provision of this Agreement is held to
be unenforceable under applicable law, such provision will be excluded from this
Agreement and the balance of the Agreement will be interpreted as if such
provision were so excluded and will be enforceable in accordance with its terms.
(g) Third Parties. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto
and their successors and assigns, any rights or remedies under or by reason of
this Agreement.
(h) Successors And Assigns. The terms and conditions of this
Agreement will inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
(i) Headings. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules will, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
(k) Costs And Attorneys' Fees. In the event that any action,
suit or other proceeding is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party will
recover all of such party's costs and reasonable attorneys' fees incurred in
each such action, suit or other proceeding, including any and all appeals or
petitions therefrom.
(l) No Finder's Fees. Each party represents that it neither is
nor will be obligated for any finder's or broker's fee or commission in
connection with this transaction. _______ will indemnify and hold harmless the
Company from any liability for any commission or compensation in the nature of a
finders' or broker's fee (and any asserted liability) for which _______ or any
of its officers, partners, employees, or representatives is responsible. The
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Company will indemnify and hold _______ harmless from any liability for any
commission or compensation in the nature of a finder's or broker's fee (and any
asserted liability) for which the Company or any of its officers, employees or
representatives is responsible.
(m) Adjustments for Stock Splits, Etc. Wherever in this
Agreement there is a reference to a specific number of shares of Common Stock or
other securities of the Company, then, upon the occurrence of any subdivision,
combination or stock dividend of such class or series of stock, the specific
number of shares so referenced in this Agreement will automatically be
proportionally adjusted to reflect the effect on the outstanding shares of such
class or series of stock by such subdivision, combination or stock dividend.
(n) Aggregation of Stock. All shares held or acquired by
affiliated entities or persons will be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
(o) Further Assurances. From and after the date of this
Agreement, upon the request of _______ or the Company, the Company and _______
will execute and deliver such instruments, documents or other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
Transmeta Corporation, _______
a California corporation
By: By:
-------------------------------- ---------------------------------
Name: Name:
------------------------------ -------------------------------
Title: Title:
----------------------------- ------------------------------
Address: Address:
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: President Attention: President
Facsimile: 000-000-0000 Facsimile: (___) ___-____
[SIGNATURE PAGE TO PIGGYBACK REGISTRATION RIGHTS AGREEMENT]
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