AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Agreement (this "Agreement") is made as of December 22, 1998 by
and among Maker Communications, Inc., a Delaware corporation (the "Company"),
the investors listed on Exhibit A hereto (the "Investors") and the other parties
which are signatories hereto.
WHEREAS, the Company, the several holders of the Company's Class A
Preferred Stock, $0.01 par value per share (the "Class A Shares") and the
several holders of the Company's Class B Preferred Stock, $0.01 par value per
share (the "Class B Shares"), are parties to an Amended and Restated
Registration Rights Agreement dated as of October 16, 1997 (the "Prior
Agreement"), which may be amended by those persons holding or having the right
to acquire a majority of the Registrable Shares then outstanding;
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company and the Investors have entered into a Class C Preferred
Stock Purchase Agreement dated as of even date herewith (as in effect from time
to time, the "Purchase Agreement") in connection with the issuance and sale by
the Company to the Investors of certain shares of the Company's Class C
Preferred Stock, par value $0.01 per share (the "Class C Shares); and
WHEREAS, it is a condition to the obligations of the Investors
pursuant to the Purchase Agreement that this Agreement be executed by the
parties hereto in order to amend and restate the Prior Agreement, and the
parties are willing to execute this Agreement and be bound by the provisions
hereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto hereby amend and
restate the Prior Agreement in its entirety as follows:
1. Registration Rights.
1.1. Definitions.
(a) The terms "Form S-l," "Form X-0," "Xxxx X-0" and "Form S-8"
mean such respective forms under the Securities Act of 1933, as amended (the
"1933 Act") as in effect on the date hereof or any successor registration forms
to Form X-0, Xxxx X-0, Form S-4 and Form S-8, respectively, under the 1933 Act
subsequently adopted by the Securities and Exchange Commission (the "SEC").
(b) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.13 hereof.
(c) The terms "register", "registered", and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the 1933 Act, and the automatic
effectiveness or the declaration or ordering of effectiveness of such
registration statement or document.
(d) The term "Registrable Securities" means (i) all shares of
Common Stock issuable upon conversion of the Class B Shares or the Class C
Shares; (ii) the shares of the Company's Common Stock owned by an Investor;
(iii) any Common Stock issued as a dividend or other distribution with respect
to, in exchange for, or in replacement of any Investor's shares of Common Stock
(including the Common Stock referred to in (d)(i) above); (iv) any other shares
of Common Stock acquired after the date hereof by any Investor; provided,
however, that any shares previously sold to the public pursuant to a registered
public offering or pursuant to an exemption from the registration requirements
of the 1933 Act shall cease to be Registrable Securities.
1.2. Request for Registration.
(a) At any time after the earlier of (i) December 31, 1999 or
(ii) the date six (6) months after the closing date of the first registered
public offering of securities of the Company, if the Company shall receive a
written request from any Holder(s) of Registrable Securities then outstanding
and entitled to registration rights under this Section 1 (the "Initiating
Holders") that the Company effect the registration under the 1933 Act of
Registrable Securities, then the Company shall, within five (5) business days of
the receipt thereof, give written notice of such request to all Holders and
shall, subject to the limitations of this Section 1.2, use its best efforts to
effect such a registration as soon as practicable and in any event to file
within sixty (60) days of the receipt of such request a registration statement
under the 1933 Act covering all the Registrable Securities which the Holders
shall in writing request (within twenty (20) days of receipt of the notice given
by the Company pursuant to this Section 1.2(a)) to be included in such
registration and to use its best efforts to have such registration statement
become effective; provided, however, that the Company will not be required to
effect the registration of Registrable Securities unless either (i) at least an
aggregate of 1,000,000 shares of Registrable Securities (as adjusted to reflect
stock splits, stock combinations, stock dividends and recapitalizations) are
offered or (ii) Registrable Securities are offered at a proposed offering price
net of underwriting commissions of not less than $3,000,000.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as part of their request made pursuant to this
Section 1.2 and the Company shall include such information in the written notice
referred to in Section 1.2. In such event, the right of any Holder to include
its Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their
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securities through such underwriting shall (together with the Company as
provided in Section 1.4(d)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company and reasonably acceptable to a majority in interest of the Initiating
Holders; provided, however, that if the underwriter is not reasonably acceptable
to a majority in interest of the Initiating Holders, such Initiating Holders may
select an underwriter or underwriters which shall be reasonably acceptable to
the Company. Notwithstanding any other provision of this Section 1.2, if, in the
case of a registration requested pursuant to Section 1.2(a), the underwriter
advises the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise the Company and all Holders of Registrable Securities
which would otherwise be underwritten pursuant hereto, and all the securities
other than Registrable Securities sought to be included in the underwriting
shall first be excluded. To the extent that further limitation is required, the
number of Registrable Securities that may be included in the underwriting shall,
subject to the last sentence of this paragraph, be allocated pro rata among all
Holders thereof desiring to participate in such underwriting (according to the
number of Registrable Securities then held by each such Holder). No Registrable
Securities requested by any Holder to be included in a registration pursuant to
Section 1.2(a) shall be excluded from the underwriting unless all securities
other than Registrable Securities are first excluded. If the registration
pursuant to this Section 1.2(a) requires exclusion of securities requested to be
registered and is subsequent to the Company's first registered public offering
of securities, then the Company shall include in such registration, in
preference to other Registrable Securities, the Registrable Securities which
represent shares of Common Stock issued upon conversion of Class C Shares, up to
an amount not to exceed each such requesting Holder's initial aggregate purchase
price for the Class C Shares as set forth on Exhibit B hereto (the "Preferential
Amount"); and any amounts so registered shall reduce the Preferential Amount and
when the Preferential Amount equals zero, this last sentence of Section 1.2(b)
shall be of no further force or effect.
(c) The Company is obligated to effect only three (3)
registrations pursuant to Section 1.2(a); provided, however, that no
registration pursuant to Section 1.2(a) shall be deemed to be a registration for
any purpose of this sentence if (i) the number of Registrable Securities
included in the underwriting does not equal or exceed fifty percent (50%) of the
number of Registrable Securities proposed by the Holders to be distributed
through such underwriting and (ii) the Holders pay the expenses of such
registration in accordance with Section 1.6; and provided, further, that no
registration of Registrable Securities which shall not have become and remained
effective in accordance with Section 1.4 shall be deemed to be a registration
for any purpose of this sentence.
(d) Notwithstanding the foregoing provisions of this Section
1.2, in the event that the Company is requested to file any registration
statement pursuant to this Section 1.2, (i) the Company shall not be obligated
to effect the filing of such registration statement:
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(A) during the one hundred eighty (180) days following
the effective date of any other registration statement
pertaining to an underwritten public offering of securities for
the account of the Company or any Holder;
(B) during the six (6) months following the effective
date of any other registration statement which the Company has
filed pursuant to the request under Section 1.2(a);
(C) if, in the case of the initial public offering of
the Company's securities, the Company and the Initiating Holders
are unable to obtain the commitment of the underwriter selected
pursuant to Section 1.2(b) to underwrite the offering on a firm
commitment basis;
(D) if the Holders propose to dispose of shares of
Registrable Securities all of which may be immediately
registered on Form S-3 pursuant to Section 1.11 below; or
(E) for a period of up to sixty (60) days after the date
of a request for registration pursuant to this Section 1.2 if at
the time of such request (1) the Company is engaged, or has
fixed plans to engage, within sixty (60) days of the time of
such request, in a firm commitment underwritten public offering
of Common Stock in which the holders of Registrable Securities
include Registrable Securities pursuant to Section 1.3; or (2)
the Company is currently engaged in a self-tender or exchange
offer and the filing of a registration statement would cause a
violation of the Securities and Exchange Act of 1934, as amended
(the "1934 Act");
or (ii) if the Company shall furnish to the Holders requesting such registration
statement a certificate signed by the Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board of Directors, it would not
be in the best interests of the Company and its stockholders generally for such
registration statement to be filed, the Company shall have the right to defer
such filing for a period of not more than ninety (90) days after receipt of the
request of the relevant Initiating Holders; provided, however, that the Company
may not utilize the right set forth in this Section 1.2(d)(ii) more than once in
any twelve (12) month period.
(e) Each registration requested pursuant to Section 1.2(a) shall
be effected by the filing of a registration statement on Form S-1 (or if such
form is not available, any other form which includes substantially the same
information (other than information which is incorporated by reference) as would
be required to be included in a registration statement on such form as currently
constituted), unless the use of a different form is consented to by Initiating
Holders holding a majority of the Registrable Securities held by all Initiating
Holders or unless another form would be equally effective, as determined by the
Initiating Holders at their sole discretion.
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1.3. Company Registration. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
capital stock or other securities under the 1933 Act in connection with the
public offering of such securities solely for cash (other than a registration on
Form S-8 relating solely to the sale of securities to participants in a Company
stock plan or a registration on Form S-4 or any successor form), the Company
shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of any Holder given within twenty (20)
days after mailing of such notice by the Company, the Company shall, subject to
the provisions of Section 1.8, use its best efforts to cause a registration
statement covering all of the Registrable Securities that each such Holder has
requested to be registered to become effective under the 1933 Act. The Company
shall be under no obligation to complete any offering of its securities it
proposes to make and shall incur no liability to any Holder for its failure to
do so.
1.4. Obligations of the Company. Whenever required under this Section
1 to use its best efforts to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably possible, 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 one hundred eighty (180) days or until such Holders have
informed the Company in writing that the distribution of their securities has
been completed. In addition, the Company shall:
(a) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement, and use its best efforts to cause each such
amendment and supplement to become effective, as may be necessary to comply with
the provisions of the 1933 Act with respect to the disposition of all securities
covered by such registration statement.
(b) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by them.
(c) Use its best efforts to register or qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such states and jurisdictions as shall be reasonably requested by the
Holders, except that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business, subject itself to taxation
or file a general consent to service of process in any such state or
jurisdiction.
(d) 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 of such offering. Each Holder
participating in such underwriting shall also enter into
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and perform its obligations under such an underwriting agreement, including
furnishing any opinion of counsel or entering into a lock-up agreement
reasonably requested by the managing underwriter.
(e) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto covered
by such registration statement is required to be delivered under the 1933 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 and promptly file such amendments and supplements
which may be required pursuant to Section 1.4(b) on account of such event and
use its best efforts to cause each such amendment and supplement to become
effective.
(f) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 1, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 1, 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 or opinions, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given by company counsel
to the underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of Registrable
Securities and (ii) a letter dated such date, from the independent certified
public accountant of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
(g) Apply for listing and use its best efforts to list the
Registrable Securities being registered on any national securities exchange on
which a class of the Company's equity securities is listed or, if the Company
does not have a class of equity securities listed on a national securities
exchange, apply for qualification and use its best efforts to qualify the
Registrable Securities being registered for inclusion on the automated quotation
system of the National Association of Securities Dealers, Inc.
(h) Without in any way limiting the types of registrations to
which this Section 1 shall apply, in the event that the Company shall effect a
"shelf registration" under Rule 415 promulgated under the 1933 Act, the Company
shall take all necessary action, including, without limitation, the filing of
post-effective amendments, to permit the Investors to include their Registrable
Securities in such registration in accordance with the terms of this Section 1.
1.5. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 in
respect of the Registrable Securities of
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any selling Holder that such selling Holder shall furnish to the Company such
information regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be required to effect
the registration of its Registrable Securities and such other information as the
Company may reasonably request or may be reasonably required in connection with
any registration, qualification or compliance referred to in this Section 1 or
otherwise required under applicable state and federal securities laws.
1.6. Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions relating to Registrable Securities
incurred in connection with each registration, filing or qualification pursuant
to Section 1.2(a) and each registration, filing or qualification pursuant to
Section 1.11, including (without limitation) all registration, filing and
qualification fees, printing and accounting fees, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one
counsel for the selling Holders, shall be borne by the Company; provided,
however, that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 1.2(a) if the registration
request is subsequently withdrawn at any time at the request of the Holders of a
majority of the Registrable Securities to be registered (in which case all
participating Holders shall bear such expenses), unless the Holders of a
majority of the Registrable Securities agree to forfeit their right to one (1)
demand registration pursuant to Section 1.2(a); and provided, further, that if
at the time of any withdrawal described in the foregoing clause the Holders have
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to the Holders of a majority of the Registrable
Securities then outstanding at the time of their request that makes the proposed
offering unreasonable in the good faith judgment of a majority in interest of
the Holders of the Registrable Securities, then the Holders shall not be
required to pay any of such expenses and the right to one (1) demand
registration pursuant to Section 1.2(a) shall not be forfeited. Subject to
Section 1.12, all underwriting discounts and commissions relating to Registrable
Securities included in any registration effected pursuant to Section 1.2(a) or
1.11 will be borne and paid ratably by the Holders of such Registrable
Securities, and, if participating, the Company and any other stockholders of the
Company.
1.7. Expenses of Company Registration. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to any registration
pursuant to Section 1.3 for each Holder, including, without limitation, all
registration, filing and qualification fees, printing and accounting fees, fees
and disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel for the selling Holders. Underwriting discounts and
commissions relating to Registrable Securities included in any registration
effected pursuant to Section 1.3 will be borne and paid ratably by the Holders
of such Registrable Securities, the Company, and, if participating, any other
stockholders of the Company.
1.8. Underwriting Requirements. In connection with any offering
involving an underwriting of securities being issued by the Company, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless such
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Holders accept the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it, and then only in such quantity, if any, as
in the opinion of the underwriters, marketing factors allow. If the managing
underwriter for the offering shall advise the Company in writing that the total
amount of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the amount of securities to
be sold other than by the Company that marketing factors allow, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the managing underwriter
believes marketing factors allow (the securities so included to be reduced as
follows: (a) all securities which stockholders other than the Company and the
Holders seek to include in the offering shall be excluded from the offering to
the extent limitation on the number of shares included in the underwriting is
required, (b) if further limitation on the number of shares to be included in
the underwriting is required, then the number of shares held by Holders that may
be included in the underwriting shall, subject to clause (c) below, be reduced
so that the number of shares included in the underwriting are pro rata in
accordance with the number of shares of Registrable Securities held by each such
Holder and (c) if the registration requires exclusion of securities requested to
be registered and is subsequent to the Company's first registered public
offering of securities, then the Company shall include in such registration, in
preference to other Registrable Securities, the Registrable Securities which
represent shares of Common Stock issued upon conversion of Class C Shares, up to
an amount not to exceed each such requesting Holder's Preferential Amount) but
in no event shall the amount of securities of the selling Holders included in
the offering be reduced below twenty-five percent (25%) of the total amount of
securities included in such offering, unless such offering is the initial public
offering of the Company's securities in which case the selling Holders may be
excluded if the managing underwriter makes the determination described above and
no securities other than those of the Company are included. For purposes of the
preceding parenthetical concerning apportionment, for any selling stockholder
which is a Holder of Registrable Securities and which is a partnership or a
corporation, the partners, retired partners and stockholders of such Holder, or
the estates and family members of such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall collectively be
deemed to be a "selling Holder," and any pro rata reduction with respect to such
"selling Holder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling Holder," as defined in this sentence.
1.9. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) The Company will indemnify and hold harmless each Holder,
the officers, directors, partners, agents and employees of each Holder, any
underwriter (as defined in the 0000 Xxx) for such Holder and each person, if
any, who controls such Holder or underwriter within the meaning of the 1933 Act
or the 1934 Act, against any losses, claims, damages or liabilities (joint or
several) to which they may become subject under the 1933 Act, the 1934 Act or
any 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
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(each 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, in light of the circumstances in which they were made, not misleading,
or (iii) any violation or alleged violation by the Company of the 1933 Act, the
1934 Act, any state securities law or any rule or regulation promulgated under
the 1933 Act, the 1934 Act or any state securities law in connection with any
matter relating to such registration statement. The Company will reimburse each
such Holder, officer, director, partner, agent, employee, underwriter or
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. The indemnity agreement contained in this Section 1.9(a)
shall not apply to amounts paid in settlement of any loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable to a Holder in any such case for any such loss, claim, damage,
liability or action (1) 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
or on behalf of such Holder, underwriter or controlling person or (2) in the
case of a sale directly by a Holder of Registrable Securities (including a sale
of such Registrable Securities through any underwriter retained by such Holder
engaging in a distribution solely on behalf of such Holder), such untrue
statement or alleged untrue statement or omission or alleged omission was
contained in a preliminary prospectus and corrected in a final or amended
prospectus, and such Holder failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the sale of the Registrable
Securities to the person asserting any such loss, claim, damage or liability in
any case in which such delivery is required by the 0000 Xxx.
(b) Each Holder which includes any Registrable Securities in any
registration statement 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 1933 Act, any
underwriter for the Company, and any other Holder selling securities in such
registration statement or any person who controls such Holder or such
underwriter, against any losses, claims, damages, or liabilities (joint or
several) to which the Company or any of the foregoing persons may become
subject, under the 1933 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 or on behalf of 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 person indemnified pursuant to this Section 1.9(b) in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the liability of any Holder hereunder shall be limited
to the amount of net proceeds (after deduction of all underwriters' discounts
and commissions paid by such Holder in connection with the registration in
question) received by such Holder, in the offering giving rise
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to the Violation; and provided, further, that the indemnity agreement contained
in this Section 1.9(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld nor,
in the case of a sale directly by the Company of its securities (including a
sale of such securities through any underwriter retained by the Company to
engage in a distribution solely on behalf of the Company), shall the Holder be
liable to the Company in any case in which such untrue statement or alleged
untrue statement or omission or alleged omission was contained in a preliminary
prospectus and corrected in a final or amended prospectus, and the Company
failed to deliver a copy of the final or amended prospectus at or prior to the
confirmation of the sale of the securities to the person asserting any such
loss, claim, damage or liability in any case in which such delivery is required
by the 0000 Xxx. The obligations of the Holders hereunder are several, not
joint.
(c) Promptly after receipt by an indemnified party under this
Section 1.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall 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 and control the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall 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 differing interests, as reasonably determined by
either party, 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, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.9 to the extent of such prejudice, but the omission so 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 1.9.
(d) The obligations of the Company and the Holders under this
Section 1.9 shall survive the conversion, if any, of the Registrable Securities
and the completion of any offering of Registrable Securities in a registration
statement whether under this Section 1 or otherwise.
1.10. Reports Under the 1934 Act. With a view to making available to
the Holders the benefits of Rule 144 promulgated under the 1933 Act ("Rule 144")
and any other rule or regulation of the SEC that may at any time permit a Holder
to sell securities of the Company to the public without registration, and with a
view to making it possible for Holders to register the Registrable Securities
pursuant to a registration on Form S-3, the Company agrees to:
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(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144, at all times
after ninety (90) days after the effective date of the first registration
statement filed by the Company for the offering of its securities to the general
public;
(b) as soon as practicable, take such action, including the
voluntary registration of its Common Stock under Section 12 of the 1934 Act or
compliance with the reporting requirements of Section 15(d) of the 1934 Act, as
is necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities.
(c) use its best efforts, after the first registered public
offering, to file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (1) a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by the Company for the offering of the securities to the general
public), the 1933 Act and the 1934 Act (at any time after it has become subject
to such reporting requirements), or as to its qualification as a registrant
whose securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (2) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (3)
such other documents as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any such
securities without registration or pursuant to such form.
1.11. Form S-3 Registration.
(a) In case the Company shall receive from any Holder or
Holders a written request or requests that the Company effect a registration on
Form S-3 (or on any successor form to Form S-3 regardless of its designation)
and any related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to
all other Holders;
(ii) use all its best efforts to effect, as soon as
practicable, such registration, qualification or compliance 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' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such
request as are specified in a written request given within ten
(10)
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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 1.11 if: (1) Form S-3 (or any
successor form to Form S-3 regardless of its designation) is
not available for such offering by the Holders; (2) the
aggregate net offering price (after deduction of underwriting
discounts and commissions) of the Registrable Securities
specified in such request is not at least $500,000; (3) the
Company has already effected one (1) registration on Form S-3
or pursuant to Section 1.2 hereof within the previous six-month
period; or (4) the Company shall furnish to the Holders a
certificate signed by the president of the Company stating
that, in the good faith judgment of the Board of Directors, it
would not be in the best interests of the Company and its
stockholders for such Form S-3 registration to be effected at
such time, in which event the Company shall have the right to
defer the filing of the Form S-3 registration for a period of
not more than ninety (90) days after receipt of the request of
the Holder or Holders under this Section 1.11; provided,
however, that the Company shall not utilize this right more
than once in any twelve (12) month period; and
(iii) If the underwriter in connection with the
registration pursuant to this Section 1.11 advises the Company
or the Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the
securities other than Registrable Securities sought to be
included in the underwriting shall first be excluded. To the
extent that further limitation is required, the number of
Registrable Securities that may be included in the underwriting
shall, subject to the last sentence of this paragraph, be
allocated pro rata among all Holders thereof desiring to
participate in such underwriting (according to the number of
Registrable Securities then held by each such Holder). No
Registrable Securities requested by any Holder to be included
in a registration pursuant to this Section 1.11 shall be
excluded from the underwriting unless all securities other than
Registrable Securities are first excluded. If the registration
pursuant to this Section 1.11 requires exclusion of securities
requested to be registered and is subsequent to the Company's
first registered public offering of securities, then the
Company shall include in such registration, in preference to
other Registrable Securities, the Registrable Securities which
represent shares of Common Stock issued upon conversion of
Class C Shares, up to an amount not to exceed each such
requesting Holder's Preferential Amount; and any amounts so
registered, and registered pursuant to Section 1.2(b) hereof,
shall reduce the Preferential Amount and when the Preferential
Amount equals zero, this last sentence of Section 1.11(a)(iii)
shall be of no further force or effect.
(b) In the event that the Company consummates the initial
public offering of its securities, then as soon as reasonably possible following
a written request from a majority in interest of the Registrable Securities, and
in any event not before 366 days after the effective date
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of the registration statement filed in connection with such initial public
offering, the Company shall file a shelf registration statement on Form S-3 (or
on any successor form to Form S-3 regardless of its designation) which would
permit or facilitate the sale and distribution of the Holders' Registrable
Securities, and the Company shall use best efforts to keep such shelf
registration effective in accordance with applicable regulations.
1.12. Lock-up Agreements. If reasonably requested by the Company and
the managing underwriter, the Holders agree to enter into lock-up agreements
pursuant to which they will not, for a period of one hundred eighty (180) days
following the effective date of the first registration statement for a public
offering of the Company's securities, offer, sell or otherwise dispose of the
Registrable Securities, except the Registrable Securities sold pursuant to such
registration statement, without the prior consent of the Company and the
underwriter, provided that the officers, directors and all holders of more than
five percent (5%) of the shares of Common Stock (calculated for the purpose as
if all securities convertible into or exercisable for Common Stock, directly or
indirectly, are so converted or exercised) of the Company and all holders of
registration rights enter such lock-up agreements for the same period and on the
same terms. In order to enforce the Agreement, the Company may impose stop
transfer instruments with respect to the Registrable Securities of each Holder.
1.13. Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned by any Holder to a permitted transferee, and by such transferee to a
subsequent permitted transferee, but only if such rights are transferred (a) to
an affiliate, subsidiary, partner or stockholder of such Holder or transferee or
an account managed or advised by the manager or adviser of such Holder or
transferee or (b) in connection with the sale or other transfer of not less than
an aggregate of 250,000 Registrable Securities (as adjusted for stock splits,
combinations, stock dividends and recapitalizations) or some lesser number, if
such lesser number represents all the Registrable Securities then held by such
Holder. Any transferee to whom rights under this Agreement are transferred shall
(i) as a condition to such transfer, deliver to the Company a written instrument
by which such transferee agrees to be bound by the obligations imposed upon
Holders under this Agreement to the same extent as if such transferee were a
Holder under this Agreement and (ii) be deemed to be a Holder hereunder.
1.14. Limitation on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the Registrable Securities then
outstanding, enter into any agreement with any holder or prospective holder of
any securities of the Company relating to registration rights unless such
agreement includes (a) to the extent such agreement would allow such holder or
prospective holder to include such securities in any registration filed under
Section 1.2, 1.3 or 1.11 hereof, a provision that such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of its securities will not reduce the amount of the
Registrable Securities of the Holders which would otherwise be included and (b)
no provision which would allow such holder or prospective holder to make a
demand registration which could
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result in such registration statement being declared effective prior to the
earlier of the dates set forth in Section 1.2(a) and (c) a provision which
permits the Holders to include in such registration and in any underwriting
involved therewith, Registrable Securities pro rata with the sellers of
securities in such registration based on the number of equivalent shares of
Common Stock held by each person (where an equivalent share is either a share of
Common Stock held directly or the number of shares of Common Stock receivable
upon conversion or exercise of securities held directly). No Holder shall be
entitled to exercise any right provided in Sections 1.1 through 1.10 and 1.12
through 1.13 hereof if at any time the aggregate number of outstanding
Registrable Securities held by such Holder is less than the maximum number of
securities that would be permitted to be sold under Rule 144 within three (3)
consecutive months (or any other applicable time period under any amendment to
Rule 144 or any successor thereto).
2. Miscellaneous.
2.1. Legend. Each certificate representing Registrable Securities
shall state therein:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF AN AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF _______________, 1998 BY AND AMONG THE CORPORATION AND
THE INVESTORS NAMED THEREIN, A COPY OF WHICH IS ON FILE AT THE
OFFICES OF THE CORPORATION.
2.2. Notices. All notices, requests, consents and demands shall be in
writing and shall be personally delivered, mailed, postage prepaid, or
transmitted by facsimile or delivered by any nationally recognized overnight
delivery service to the Company at:
Maker Communications, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax No: (000) 000-0000
with a copy to: Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No: (000) 000-0000
to each Investor at its address set forth on Exhibit A hereto with a copy to
each of:
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Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax No: (000) 000-0000
and
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No: (000) 000-0000
or such other address as may be furnished in writing to the other parties
hereto. All such notices, requests, demands and other communication shall, when
personally delivered or mailed (registered or certified mail, return receipt
requested, postage prepaid) and addressed properly or delivered by any
nationally recognized overnight delivery service and addressed properly be
effective upon actual receipt. All such notices, requests, demands and other
communication, when transmitted by facsimile, shall be effective when
transmitted and electronically confirmed.
2.3. Entire Agreement. This Agreement and the other Transaction
Documents (as defined in the Purchase Agreement) constitute the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede any and all prior understandings and agreements, whether
written or oral, with respect to such subject matter, including the Prior
Agreement.
2.4. Amendments, Waivers and Consents. Any provision in this
Agreement to the contrary notwithstanding, modifications or amendments to this
Agreement may be made, and compliance with any covenant or provision herein set
forth may be omitted or waived, if the Company (a) shall obtain consent thereto
in writing from persons holding or having the right to acquire in the aggregate
a majority of the Registrable Securities then outstanding and (b) shall, in each
such case, deliver copies of such consent in writing to any Holders who did not
execute the same; provided, however, that no Holder shall, without its consent,
be adversely affected by any such modification, amendment or waiver in any
manner in which the other Holders are not likewise adversely affected; provided,
further, that no amendment may be made to the rights of the holders of the Class
B Shares or Class C Shares set forth in the last sentence of Section 1.2(b),
Section 1.8 or the last sentence of Section 1.11(a)(iii) hereof without consent
of the holders of a majority in interest of each of the then outstanding Class B
Shares and Class C Shares.
2.5. Binding Effect, Assignment. This Agreement shall be binding upon
and inure to the benefit of the personal representatives, successors and
permitted assigns of the respective parties hereto. The Company shall not have
the right to assign its obligations hereunder or any
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interest herein without obtaining the prior written consent of the Holders
holding a majority of the Registrable Securities then outstanding, provided in
accordance with Section 2.4.
2.6. General. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. In this Agreement the singular includes the
plural, the plural includes the singular, and the masculine gender includes the
neuter, masculine and feminine genders. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts.
2.7. Severability. If any provision of this Agreement shall be found
by any court of competent jurisdiction to be invalid or unenforceable, the
parties hereby waive such provision to the extent that it is found to be invalid
or unenforceable. Such provision shall, to the maximum extent allowable by law,
be modified by such court so that it becomes enforceable, and, as modified,
shall be enforced as any other provision hereof, all the other provisions hereof
continuing in full force and effect.
2.8. Counterparts. This Agreement may be executed in counterparts,
all of which together shall constitute one and the same instrument.
2.9. Specific Performance. The Company recognizes that the rights of
the Holders under this Agreement are unique, and, accordingly, the Holders
shall, in addition to such other remedies as may be available to them at law or
in equity, have the right to enforce their rights hereunder by actions for
injunctive relief and specific performance to the extent permitted by law. This
Agreement is not intended to limit or abridge any rights of the Holders which
may exist apart from this Agreement.
IN WITNESS WHEREOF, the Company and the Investors have executed this
Agreement as of the date and year first above written.
MAKER COMMUNICATIONS, INC.
By:
------------------------------
Name:
Title: Chief Executive Officer
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