REGISTRATION RIGHTS AGREEMENT
This Agreement, dated as of August 3, 1998 is entered into by and between
Avid Technology, Inc., a Delaware corporation (the "COMPANY"), and Microsoft
Corporation, a Washington corporation (the "PURCHASER").
RECITALS
Whereas, the Company and the Purchaser have entered into a Stock and Asset
Purchase Agreement dated as of June 15, 1998 (the "PURCHASE AGREEMENT");
Whereas, the Purchaser has agreed that no shares of capital stock of the
Company received in connection with the Purchase Agreement (and the warrant
issued thereunder) shall be transferred by the Purchaser until after the third
anniversary of the Closing Date (as defined in the Purchase Agreement); and
Whereas, the Company and the Purchaser desire to provide for certain
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act of 1933;
Now, Therefore, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" means the common stock, $.01 par value per share,
of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"OTHER HOLDERS" shall have the meaning set forth in Section 2(c).
"PROSPECTUS" means the prospectus included in any Registration
Statement, as amended or supplemented by an amendment or prospectus supplement,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation or any registration statement
covering only securities offered by another stockholder or stockholders of the
Company).
"REGISTRATION EXPENSES" means the expenses described in Section 5.
"REGISTRABLE SHARES" means the Shares and any other shares of Common
Stock issued in respect of the Shares (because of stock splits, stock dividends,
reclassifications, recapitalizations or other similar events); PROVIDED,
HOWEVER, that shares of Common Stock which are Registrable Shares shall cease to
be Registrable Shares upon (i) becoming eligible for sale under Rule 144(k)
under the Securities Act, (ii) any sale pursuant to a Registration Statement or
Rule 144 under the Securities Act or (iii) any sale in any manner to a person or
entity which, by virtue of Section 12 of this Agreement, is not entitled to the
rights provided by this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder, as they may be from time to time in
effect.
"SHARES" means the shares of Common Stock acquired by the Purchaser
under the Purchase Agreement, including shares of Common Stock issued upon
exercise of the Warrant (as defined in the Purchase Agreement).
"STOCKHOLDER" means the Purchaser and any person or entity to whom
the rights granted under this Agreement are transferred by the Purchaser
pursuant to Section 12 hereof.
2. REQUIRED REGISTRATIONS
(1) At any time after August 3, 2001, the Stockholder may request, in writing,
that the Company effect the registration under the Securities Act of Registrable
Shares owned by the Stockholder.
(2) Upon receipt of any request for registration pursuant to this Section 2
received after August 3, 2001, the Company shall use its reasonable best efforts
to effect the registration, on Form S-3 under the Securities Act (or, if such
form is not available, such other form as shall be appropriate for such sale),
of all Registrable Shares which the Company has been requested to so register.
(3) If the Stockholder intends to distribute the Registrable Shares covered by
its request by means of an underwriting, it shall so advise the Company as a
part of its request made pursuant to Section 2(a). If other holders of
securities of the Company who are entitled by contract with the Company to have
securities included in such a registration (the "OTHER HOLDERS") request that
their securities be included in such registration and underwriting, the Company
may include the securities of such Other Holders in such registration and
underwriting on the terms set forth herein. The Company shall (together with the
Stockholder and all Other Holders proposing to distribute their securities
through such underwriting) enter into an underwriting agreement in customary
form (including, without limitation, customary indemnification and contribution
provisions) with the managing underwriter. Notwithstanding any other provision
of this Section 2(c), if the managing underwriter advises the Company that the
inclusion of all shares requested to be registered would adversely affect the
offering, the securities of the Company held by Other Holders shall first be
excluded from such registration and underwriting to the extent deemed advisable
by the managing underwriter and, if all such shares have been excluded and
further limitation of the number of shares is required, Registrable Shares shall
then be excluded from such underwriting and registration to the extent deemed
advisable by the managing underwriter. If the Stockholder or any Other Holder
who has requested inclusion in such registration as provided above disapproves
of the terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company, and the securities so withdrawn shall also be
withdrawn from registration. If the managing underwriter has not limited the
number of Registrable Shares or other securities to be underwritten, the Company
may include securities for its own account in such registration if the managing
underwriter so agrees and if the number of Registrable Shares and other
securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.
(4) The Stockholder shall have the right to select the managing underwriter(s)
for any underwritten offering requested pursuant to Section 2(a), subject to the
approval of the Company, which approval will not be unreasonably withheld.
(5) The Company shall not be required to effect more than four registrations
pursuant to Section 2. In addition, the Company shall not be required to effect
any registration within six months after the effective date of any other
Registration Statement. For purposes of this Section 2(e), a Registration
Statement shall not be counted until such time as such Registration Statement
has been declared effective by the Commission (unless the Stockholder withdraws
its request for such registration and elects not to pay the Registration
Expenses therefor pursuant to Section 5).
(6) If at the time of any request to register Registrable Shares by the
Stockholder pursuant to this Section 2, the Company is engaged or has plans to
engage in a registered public offering or is engaged or plans to engage in any
other activity which, in the good faith determination of the Company's Board of
Directors, would be adversely affected by the requested registration, then the
Company may at its option direct that such request be delayed for a period not
in excess of 90 days from the date of such request, such right to delay a
request to be exercised by the Company not more than once, or for an aggregate
delay of more than 90 days, in any 12-month period.
3. INCIDENTAL REGISTRATION
(1) Whenever the Company proposes to file a Registration Statement (other than a
Registration Statement filed pursuant to Section 2) at any time and from time to
time, it will, prior to such filing, give written notice to the Stockholder of
its intention to do so. Upon the written request of the Stockholder given within
20 days after the Company provides such notice (which request shall state the
intended method of disposition of such Registrable Shares), the Company shall
use reasonable efforts to cause all Registrable Shares which the Company has
been requested by the Stockholder to register to be registered under the
Securities Act to the extent necessary to permit their sale or other disposition
in accordance with the intended methods of distribution specified in the request
of the Stockholder; provided that the Company shall have the right to postpone
or withdraw any registration effected pursuant to this Section 3 without
obligation to the Stockholder.
(2) If the registration for which the Company gives notice pursuant to Section
3(a) is a registered public offering involving an underwriting, the Company
shall so advise the Stockholder as a part of the written notice given pursuant
to Section 3(a). In such event, the right of the Stockholder to include its
Registrable Shares in such registration pursuant to Section 3 shall be
conditioned upon such Stockholder's participation in such underwriting on the
terms set forth herein. If the Stockholder proposes to distribute Registrable
Shares through such underwriting, it shall (together with the Company and any
Other Holders distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for the underwriting by the Company. Notwithstanding any
other provision of this Section 3, if the managing underwriter determines that
the inclusion of all shares requested to be registered would adversely affect
the offering, the Company may limit the number of Registrable Shares to be
included in the registration and underwriting. The Company shall so advise the
Stockholder and the number of shares that are entitled to be included in the
registration and underwriting shall be allocated in the following manner. The
securities of the Company held by stockholders other than Other Holders shall
first be excluded from such registration and underwriting to the extent deemed
advisable by the managing underwriter and, if all such shares have been excluded
and further limitation of the number of shares is required, the number of shares
that may be included in such registration and underwriting shall then be
allocated among the Stockholder and Other Holders requesting registration in
proportion, as nearly as practicable, to the respective number of shares of
Common Stock (on an as-converted basis) which they held at the time the Company
gave the notice specified in Section 3(a). If the Stockholder or any such Other
Holder would thus be entitled to include more securities than such holder
requested to be registered, the excess shall be allocated among the Stockholder
and such Other Holders pro rata in the manner described in the preceding
sentence. If the Stockholder or any Other Holder disapproves of the terms of any
such underwriting, such person may elect to withdraw therefrom by written notice
to the Company, and any Registrable Shares or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
4. REGISTRATION PROCEDURES
(1) If and whenever the Company is required by the provisions of Section 2 or
Section 3 of this Agreement to use its best efforts to effect the registration
of any Registrable Shares under the Securities Act, the Company shall:
(1) file with the Commission a Registration Statement with respect to such
Registrable Shares and use its reasonable best efforts to cause that
Registration Statement to become and remain effective for 180 days from the
effective date or such lesser period until all such Registrable Shares are sold;
(1) as expeditiously as possible furnish to the Stockholder such reasonable
numbers of copies of the Prospectus, including any preliminary Prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as the Stockholder may reasonably request in order to facilitate the public sale
or other disposition of the Registrable Shares;
(2) as expeditiously as possible use its reasonable best efforts to register
or qualify the Registrable Shares covered by the Registration Statement under
the securities or Blue Sky laws of such states as the Stockholder shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the Stockholder to consummate the public sale
or other disposition in such states of the Registrable Shares included in the
Registration Statement; PROVIDED, HOWEVER, that the Company shall not be
required in connection with this paragraph (iii) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction;
(3) as expeditiously as possible, cause all such Registrable Shares to be
listed on each securities exchange or automated quotation system on which
similar securities issued by the Company are then listed;
(4) promptly provide a transfer agent and registrar for all such Registrable
Shares not later than the effective date of such registration statement;
(5) promptly make available for inspection by the Stockholder, any managing
underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant or other agent retained by any such
underwriter or selected by the Stockholder, all financial and other records,
pertinent corporate documents and properties of the Company and cause the
Company's officers, directors, employees and independent accountants to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement;
(6) as expeditiously as possible, notify the Stockholder, promptly after the
Company 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; and
(7) as expeditiously as possible following the effectiveness of such
Registration Statement, notify the Stockholder of any request by the Commission
for the amending or supplementing of such Registration Statement or Prospectus.
(2) If the Company has delivered a Prospectus to the Stockholder and after
having done so the Prospectus is amended to comply with the requirements of the
Securities Act, the Company shall promptly notify the Stockholder and, if
requested, the Stockholder shall immediately cease making offers of Registrable
Shares and return all Prospectuses to the Company. The Company shall promptly
provide the Stockholder with revised Prospectuses and, following receipt of the
revised Prospectuses, the Stockholder shall be free to resume making offers of
the Registrable Shares.
(3) In the event that, in the judgment of the Company based on advice of
counsel, it is advisable to suspend use of a Prospectus included in a
Registration Statement due to pending material developments or other events that
have not yet been publicly disclosed or due to the need to file with the
Commission financial statements required to comply with the Securities Act, the
Company shall notify the Stockholder to such effect, and, upon receipt of such
notice, the Stockholder shall immediately discontinue any sales of Registrable
Shares pursuant to such Registration Statement until the Stockholder has
received copies of a supplemented or amended Prospectus or until the Stockholder
is advised in writing by the Company that the then current Prospectus may be
used and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
Notwithstanding anything to the contrary herein, the Company shall not exercise
its rights under this Section 4(c) to suspend sales of Registrable Shares for a
period in excess of 90 days in any 365-day period.
5. ALLOCATION OF EXPENSES. The Company will pay all Registration Expenses for
all registrations under this Agreement; PROVIDED, HOWEVER, that if a
registration under Section 2 is withdrawn at the request of the Stockholder
(other than as a result of information concerning the business or financial
condition of the Company which is made known to the Stockholder after the date
on which such registration was requested) and if the Stockholder elects not to
have such registration counted as a registration requested under Section 2, the
Stockholder shall pay the Registration Expenses of such registration. For
purposes of this Section, the term "REGISTRATION EXPENSES" shall mean all
expenses incurred by the Company in complying with this Agreement, including,
without limitation, all registration and filing fees, exchange listing fees,
printing expenses, fees and expenses of counsel for the Company, state Blue Sky
fees and expenses, and the expense of any special audits incident to or required
by any such registration, but excluding underwriting discounts and selling
commissions and any fees and expenses of counsel to the Stockholder.
6. INDEMNIFICATION AND CONTRIBUTION
(1) In the event of any registration of any of the Registrable Shares under the
Securities Act pursuant to this Agreement, the Company will indemnify and hold
harmless the Stockholder, each underwriter of Registrable Shares, and each other
person, if any, who controls the Stockholder or such underwriter within the
meaning of the Securities Act or the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which the Stockholder or such
underwriter or controlling person may become subject under the Securities Act,
the Exchange Act, state securities or Blue Sky laws 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
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or any
amendment or supplement to such Registration Statement, or arise out of or are
based upon the omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and the Company will reimburse the Stockholder and such underwriter or
controlling person for any legal or any other expenses reasonably incurred by
the Stockholder or such underwriter or controlling person 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 to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made (i) in such Registration Statement,
preliminary prospectus or prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of the Stockholder or such underwriter or controlling
person specifically for use in the preparation thereof, or (ii) in any
prospectus or preliminary prospectus, or any supplement thereto, other than the
most current version thereof, if the Stockholder has breached its obligations
under Section 4(b).
(2) In the event of any registration of any of the Registrable Shares under the
Securities Act pursuant to this Agreement, the Stockholder will indemnify and
hold harmless the Company, each of its directors and officers and each
underwriter (if any) and each person, if any, who controls the Company or any
such underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Company, such directors and officers, underwriter or controlling person may
become subject under the Securities Act, Exchange Act, state securities or Blue
Sky laws 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 a material fact contained in any
Registration Statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information relating to the Stockholder
furnished in writing to the Company by or on behalf of the Stockholder
specifically for use in connection with the preparation of such Registration
Statement, prospectus, amendment or supplement; PROVIDED, HOWEVER, that the
obligations of the Stockholder hereunder shall be limited to an amount equal to
the net proceeds to the Stockholder from the Registrable Shares sold in
connection with such registration.
(3) Each party entitled to indemnification under this Section (the "INDEMNIFIED
PARTY") shall give notice to the party required to provide indemnification (the
"INDEMNIFYING PARTY") promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any litigation
resulting therefrom; PROVIDED, that counsel for the Indemnifying Party, who
shall conduct the defense of such claim or litigation, shall be approved by the
Indemnified Party (whose approval shall not be unreasonably withheld); and,
PROVIDED, FURTHER, that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section except to the extent that the Indemnifying Party is adversely
affected by such failure. The Indemnified Party may participate in such defense
at such party's expense; PROVIDED, HOWEVER, that the Indemnifying Party shall
pay such expense if representation of such Indemnified Party by the counsel
retained by the Indemnifying Party would be inappropriate due to actual or
potential differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding; PROVIDED FURTHER that in no
event shall the Indemnifying Party be required to pay the expenses of more than
one law firm per jurisdiction as counsel for the Indemnified Party. The
Indemnifying Party also shall be responsible for the expenses of such defense if
the Indemnifying Party does not elect to assume such defense. No Indemnifying
Party, in the defense of any such claim or litigation shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect of such claim or litigation, and no Indemnified Party
shall consent to entry of any judgment or settle such claim or litigation
without the prior written consent of the Indemnifying Party, which consent shall
not be unreasonably withheld.
(4) In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in this Section 6 is due in accordance
with its terms but for any reason is held to be unavailable to an Indemnified
Party in respect to any losses, claims, damages and liabilities referred to
herein, then the 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 or liabilities to which such
party may be subject in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Stockholder on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Stockholder shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact related to information supplied by the Company
or the Stockholder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Stockholder agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 6(d), in no case shall the Stockholder be liable or responsible
for any amount in excess of the net proceeds received by the Stockholder from
the offering of Registrable Shares; PROVIDED, HOWEVER, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party under this Section, notify the party from whom
contribution may be sought, but the omission so to notify the party from whom
contribution may be sought shall not relieve such party from any other
obligation it or they may have thereunder or otherwise under this Section. No
party shall be liable for contribution with respect to any action, suit,
proceeding or claim settled without its prior written consent, which consent
shall not be unreasonably withheld.
7. OTHER MATTERS WITH RESPECT TO UNDERWRITTEN OFFERINGS. In the event that
Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2, the Company agrees to (a) enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and
customary covenants and agreements to be performed by the Company, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering; (b) use reasonable efforts to
cause its independent public accounting firm to issue customary "cold comfort
letters" to the underwriters with respect to the Registration Statement; and (c)
if requested by the Stockholder, consider in good faith making its senior
executives available to assist the underwriters with respect to so-called "road
shows" in connection with marketing efforts for and the distribution and sale of
the Registrable Shares.
8. INFORMATION BY HOLDER. Each holder of Registrable Shares included in any
registration shall furnish to the Company such information regarding such holder
and the distribution proposed by such holder as the Company may reasonably
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
9. CONFIDENTIALITY OF NOTICES. Upon receiving any written notice from the
Company regarding the Company's plans to file a Registration Statement, the
Stockholder shall treat such notice confidentially and shall not disclose such
information to any person other than as necessary to exercise its rights under
this Agreement.
10. RULE 144 REQUIREMENTS. During the term of this Agreement, the Company
shall:
(1) use its best efforts to 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
(2) furnish to the Stockholder upon request (i) a written statement by the
Company as to its compliance with the reporting requirements of the Securities
Act and the Exchange Act, (ii) a copy of the most recent annual or quarterly
report of the Company, and (iii) such other reports and documents of the Company
as such holder may reasonably request to avail itself of any similar rule or
regulation of the Commission allowing it to sell any such securities without
registration.
11. TERMINATION. All of the Company's obligations to register Registrable Shares
under Sections 2 and 3 of this Agreement shall terminate six years after the
date hereof.
12. TRANSFERS OF RIGHTS. This Agreement, and the rights and obligations of
the Purchaser hereunder, may not be assigned by the Purchaser without the
express written consent of the Company.
13. GENERAL
(1) SEVERABILITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(2) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts applicable to
contracts entered into and performed entirely within Massachusetts.
(3) NOTICES. All notices, requests, consents and other communications under this
Agreement shall be in writing and shall be deemed delivered (i) two business
days after being sent by registered or certified mail, return receipt requested,
postage prepaid or (ii) one business day after being sent via a reputable
nationwide overnight courier service guaranteeing next business day delivery, in
each case to the intended recipient as set forth below:
If to the Company, at Avid Technology, Inc., Metropolitan Technology Park,
Xxx Xxxx Xxxx, Xxxxxxxxx, XX 00000, Attention: President, or at such other
address or addresses as may have been furnished in writing by the Company to the
Purchaser, with a copy to Xxxx X. Xxxxxx, Esq., Xxxx and Xxxx, 00 Xxxxx Xxxxxx,
Xxxxxx, XX 00000; and
If to the Purchaser, at Microsoft Corporation, Xxx Xxxxxxxxx Xxx, Xxxxxxx,
XX 00000-0000, Attention: President, or at such other address or addresses as
may have been furnished in writing by the Purchaser to the Company, with a copy
to Xxxx X. Xxxxxx, Esq., Xxxxxxx Xxxxx & Xxxxx LLP, 5000 Columbia Seafirst
Center, 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
(4) COMPLETE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings relating to such subject
matter.
(5) AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended or
terminated and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the holders of at
least a majority of the Registrable Shares; PROVIDED, that this Agreement may be
amended with the consent of the holders of less than all Registrable Shares only
in a manner which affects all such holders in the same fashion. Any such
amendment, termination or waiver effected in accordance with this Section 13(e)
shall be binding on all parties hereto, even if they do not execute such
consent. No waivers of or exceptions to any term, condition or provision of this
Agreement, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such term, condition or provision.
(6) PRONOUNS. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa.
(7) COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of which together shall constitute one and the same document. This Agreement may
be executed by facsimile signatures.
(8) SECTION HEADINGS. The section headings
are for the convenience of the parties and in no way alter, modify, amend, limit
or restrict the contractual obligations of the parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Executed as of the date first written above.
AVID TECHNOLOGY, INC.
By: /S/XXXXXXX X. XXXXXXXX
-------------------------
Name: XXXXXXX X. XXXXXXXX
Title: SENIOR VICE PRESIDENT OF FINANCE,
CFO, AND TREASURER
MICROSOFT CORPORATION
By: /S/XXXXXX X. XXXXXXXX
-------------------------
Name: XXXXXX X. XXXXXXXX
Title: ASSISTANT SECRETARY
