Exhibit 5.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
October 2, 2002 by and among TippingPoint Technologies, Inc. (the "Company"),
and certain purchasers of the Company's capital stock listed on the signature
pages below (the "Holders")
WHEREAS, the Company and the Holders entered into a Stock Purchase
Agreement (the "Purchase Agreement") as of October 2, 2002, providing, among
other things, for the purchase by the Purchasers of shares of the Company's
Common Stock, $0.01 par value. Terms defined in the Purchase Agreement and not
otherwise defined herein are used herein with the same meanings as defined in
the Purchase Agreement; and
WHEREAS, in connection with the issuance and sale of the Shares and in
consideration for the Company's sale of Shares pursuant to the Purchase
Agreement relating to such Shares, the Company agreed to grant certain rights to
the Holders as set forth in this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The terms "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of 1933 (the
"Securities Act"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registrable Securities" means the Shares and any
Common Stock of the Company 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,
such Shares, excluding in all cases, however, (i) any Registrable Securities
sold by a person in a transaction in which such person's rights under this
Agreement are not assigned, (ii) any Registrable Securities sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction, or (iii) any Registrable Securities that are eligible for resale
under Rule 144(k) promulgated by the Securities and Exchange Commission (the
"SEC") under the Securities Act;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding that are, and the number of shares of Common Stock issuable pursuant
to then exercisable or convertible securities that are, Registrable Securities;
and
(d) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee permitted under Section
1.12 hereof.
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1.2 Request for Registration.
(a) If the Company shall receive, at any time after January 1,
2003, a written request from the Holders of twenty-five percent (25%) of the
Registrable Securities then outstanding that the Company file a registration
statement under the Securities Act covering the registration of at least
twenty-five percent (25%) of the Registrable Securities (or any lesser
percentage if the aggregate proposed offering price to the public (before
deduction of underwriting discounts and commissions) would be at least
$5,000,000), then the Company shall, within ten (10) days after the receipt of
such request, give written notice of such request to all Holders and shall,
subject to the limitations set forth below, use commercially reasonable efforts
to effect as soon as practicable the registration under the Securities Act of
all Registrable Securities that the Holders request to be registered in a
written request to be given within fifteen (15) days of receipt of such notice
by the Company.
(b) The Company is obligated to effect only two (2)
registrations pursuant to Section 1.2 (a).
(c) The Company shall use its commercially reasonable efforts
to qualify, and to continue to be qualified until there are no longer any
Registrable Securities, for registration on Form S-3, or on any comparable or
successor form or forms (a "Short Form"). In addition to the rights contained in
Section 1.2(a), the Holders of at least thirteen percent (13%) of the
Registrable Securities then outstanding (provided, in any event, that the
aggregate estimated offering price of the shares included in such registration
must be at least $1,000,000) shall have the right at any time and from time to
time after January 1, 2003 to request registrations on a Short Form and, upon
such request, the Company shall, subject to the limitations set forth below, use
commercially reasonable efforts to effect as soon as practicable the
registration on a Short Form of all Registrable Securities that the Holders
request to be registered; provided, that the Company shall not be obligated to
effect more than two registrations on a Short Form during any twelve month
period. Such requests shall be in writing and shall state the number of shares
of Registrable Securities proposed to be disposed of and the intended method of
distribution of such shares by such Holders.
(d) If the Company is eligible to file registration statements
on a Short Form at the time it receives a request for a registration pursuant to
Section 1.2 (a), the Company may notify the Holders that the Company intends to
file such registration on a Short Form. Upon the request of the Holders of a
majority of the Registrable Securities by written notice given to the Company
within fifteen (15) days after the date of sending of the Company's notice, the
Company will use its commercially reasonable efforts to cause such registration
on a Short Form to be declared a "shelf" registration statement relating to
delayed or continuous offerings of the Registrable Securities pursuant to Rule
415 (or similar rule that may be adopted by the SEC) under the Securities Act.
(e) Notwithstanding the foregoing, if the Company shall
furnish to the Holders requesting a registration pursuant to this Section 1.2
within thirty (30) days of receiving such request: (i) a certificate signed by
the President of the Company stating that in the good faith judgment of the
Board of Directors of the Company it would be seriously detrimental to the
Company and its stockholders for such registration statement to be filed and it
is therefore
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essential to defer the filing of such registration statement, or (ii) a
certificate signed by the President of the Company stating that the Company
intends within ninety (90) days after the date of such certificate to file a
registration statement for a public offering of securities of the Company to the
general public, the Company shall not be obligated to effect the registration
requested pursuant to this Section 1.2; provided, however, that the Company
shall promptly notify the Holders requesting a registration pursuant to this
Section 1.2 of any decision by the Company to abandon or indefinitely delay such
public offering. The Company shall have the right to defer such filing for up to
two (2) periods of not more than ninety (90) days each after receipt of the
request of the Holders requesting a registration; provided, however, that the
Company may not use this right more than once (for a total of up to one hundred
eighty (180) days) in any twelve (12)-month period. In the event that the
Company makes a request pursuant to this Section 1.2(e) that a registration be
deferred, the Holder(s) requesting such deferral may withdraw such request and
will retain its or their rights pursuant to Section 1.2(a) or 1.2(c), as
applicable.
(f) The Company shall not grant to any persons any rights to
request the Company to register any of its equity securities, or any securities
convertible or exchangeable into or exercisable for such securities, without the
prior written consent of the Holders of a majority of the Registrable
Securities, unless such rights are expressly designated as subordinate and
junior to (including, without limitation, rights with respect to underwriter
cutbacks or similar limitations) those granted under Sections 1.2 and 1.3 of
this Agreement.
(g) The Holders of a majority of the Registrable Securities
included in any registration under this Section 1.2 shall have the right to
select investment banker(s) and manager(s) to administer the offering, subject
to the Company's approval, which shall not be unreasonably withheld; provided
that, unless the Company otherwise consents, the lead investment banker shall be
from one of the ten firms which in the immediately preceding calendar year
managed the ten highest volumes of equity security offerings or a firm that has
previously managed or administered (alone or with others) a public equity
security offering for the Company.
1.3 Company Registration. If (but without any obligation to do
so), at any time the Company proposes to register any of its stock or other
securities under the Securities Act in connection with the public offering of
such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan, or a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly (no less than thirty (30) days prior to the anticipated filing
date) give each Holder written notice of such registration. Upon the written
request of a Holder given within fifteen (15) days after mailing of written
notice by the Company, the Company shall, subject to the provisions of Section
1.7, use commercially reasonable efforts to cause to be registered under the
Securities Act all of the Registrable Securities that such Holder has requested
to be registered.
1.4 Obligations of the Company. Whenever the Company registers
under the Securities Act any Registrable Securities in accordance with this
Section 1, the Company shall, as expeditiously as reasonably possible:
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(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective (provided that
before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to the counsel selected by the
holders of a majority of the shares of Registrable Securities covered by such
registration statement (the "Selling Stockholders' Counsel") copies of all such
documents proposed to be filed, which documents shall be subject to the review
and comments of such counsel), and, upon the request of a Holder, keep such
registration statement effective until the earlier of ninety (90) days after the
effective date and the day the distribution described in the registration
statement has been completed.
(b) 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) Furnish to each Holder and the underwriter or
underwriters, if any, and to Selling Stockholders' Counsel and counsel to the
underwriters, without charge, such numbers of conformed copies of the
registration statement and any pre- or post-effective amendment thereto, upon
request, and 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 it may reasonably be requested in order to facilitate the
disposition of Registrable Securities owned by a Holder.
(d) Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by a Holder, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions, excluding any consent to service of process required by such
securities or blue sky laws.
(e) 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. Any Holder, if
participating in such underwriting, shall also enter into and perform its
obligations under such an agreement.
(f) Notify Holders if 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 and, as promptly as
possible thereafter, prepare and file with the SEC and furnish a supplement or
amendment to such prospectus so that, as thereafter delivered to the Holders
selling Registrable Securities, such prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
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(g) Use commercially reasonable efforts to obtain a "cold
comfort" letter from the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by "cold comfort"
letters as the Holders, collectively, or the underwriter reasonably request;
(h) Make generally available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of at least
12 months beginning with the first day of the Company's first full calendar
quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder.
(i) In the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, the Company shall use commercially reasonable efforts to obtain
the withdrawal of such order.
(j) Cause all such Registrable Securities registered hereunder
to be listed on each securities exchange, Nasdaq National Market, Nasdaq
SmallCap Market or over-the-counter market on which similar securities issued by
the Company are then listed.
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 with
respect to the Registrable Securities of a Holder that such 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 such Holder's Registrable Securities.
1.6 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 the registrations
pursuant to Section 1 for Holders, including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto, and the reasonable fees and disbursements of
one counsel for the Holders collectively (not to exceed $25,000 in the
aggregate), but excluding underwriting discounts and commissions relating to
Registrable Securities.
1.7 Underwriting Requirements.
(a) The right of any Holder to include its Registrable
Securities in a registration under Section 1.2 shall 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 shall (together with the Company as provided in Section 1.4(e))
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting pursuant to Section 1.2(g).
Notwithstanding any other provisions of Section 1.2, if the underwriter advises
the Holders in writing that marketing factors require a limitation of the number
of shares to be underwritten, then the Company shall so advise all Holders of
Registrable Securities which would otherwise have been underwritten pursuant to
Section 1.2, and the
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number of shares of Registrable Securities that may be included in the
registration shall be apportioned first pro rata among the selling Holders
according to the total amount of Registrable Securities held by such Holders at
the time of registration, then to the Company and then pro rata among any other
selling stockholders according to the total amount of securities otherwise
entitled to be included therein owned by each such selling stockholder, or in
such other proportions as shall mutually be agreed to by such selling
stockholders.
(b) In connection with any offering involving an underwriting
of shares 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 Holder accepts the terms of the underwriting as agreed upon between
the Company and the underwriters selected by it (or by other persons entitled to
select the underwriters), and then only in such quantity as will not, in the
opinion of the underwriters, jeopardize the success of the offering by the
Company. If the underwriters advise the Company that marketing factors require a
limitation of the number of shares to be underwritten, then the number of shares
that may be included in the underwriting shall be allocated first to the
Company, which shall have priority as to registration, placement, allocation and
otherwise in such event, and then pro rata among the selling Holders and other
selling stockholders with the right to have their shares included in such
registration, according to the total amount of Registrable Securities or shares
held by such Holders or selling stockholders, as the case may be, at the time of
such registration, and then among all other selling stockholders. For purposes
of apportionment, Holders and any selling stockholder that is a partnership or
corporation, the partners, retired partners and stockholders of such Holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling stockholder," and any pro rata reduction with respect to such
"selling stockholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling stockholder," as defined in this sentence.
1.8 Delay of Registration. Holders shall not 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 Section 1.
1.9 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Securities
Act) for such Holder and each person, if any, who controls a Holder or
underwriter within the meaning of the Securities Act or the Securities Exchange
Act of 1934, 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 1934 Act or other federal, state or provincial 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
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violation or alleged violation by the Company of the Securities Act, the 1934
Act, any state securities law or any rule or regulation promulgated under the
Securities Act, the 1934 Act or any state or provincial securities law; and the
Company will pay to a Holder, underwriter or controlling person, as incurred,
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this Section 1.9(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, conditioned or
delayed.
(b) To the extent permitted by law, each Holder, severally and not
jointly, will indemnify and hold harmless the Company, each of its directors,
each of its officers who has signed the registration statement, each person, if
any, who controls the Company within the meaning of the Securities Act, any
underwriter, any other stockholder selling securities in such registration
statement and any controlling person of any such underwriter or other
stockholder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Securities Act, the 1934 Act or other federal, state or provincial 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 that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto; and such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be 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 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 such
Holder, which consent shall not be unreasonably withheld, conditioned or
delayed; and further provided, that, in no event shall any indemnity under this
Section 1.9(b) exceed the net proceeds from the offering received by such
Holder.
(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 the defense thereof if (a) the indemnifying party
acknowledges its obligation to indemnify the indemnified party for any losses,
damages or liabilities resulting from such claim and provide reasonable evidence
to the indemnified party of its financial ability to satisfy such obligation;
(b) the claim does not seek to impose any liability or obligation on the
indemnified party other than for money damages; and (c) the claim does not
relate to the indemnified party's relationship with its customers or employees.
If such conditions are satisfied and the indemnifying party elects to assume and
control the defense of a claim, then (i) the indemnified party will not be
liable for any settlement of such claim effected without the consent of the
indemnified party, which consent will not be unreasonably withheld, conditioned
or delayed; and (ii) the indemnifying party may settle such claim without the
consent of the indemnified party;
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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, in the opinion of such counsel, be inappropriate due
to actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding; and provided
further, that no indemnifying party will 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. 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, 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) If the indemnification provided for in this Section 1.9 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; provided, that, in no event shall any contribution by a Holder
under this Section 1.9(d) exceed the net proceeds from the offering received by
a Holder, except in the case of willful fraud by a Holder. The relative fault of
the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information was supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control. Notwithstanding the foregoing, no Holder shall be required to
participate in a registration pursuant to Section 1.3 that would require it to
execute an underwriting agreement in connection with a registration that imposes
indemnification or contribution obligations on such Holder more onerous than
those imposed hereunder; provided, however, that the Company shall not be deemed
to breach the provisions of Section 1.3 if a Holder is not permitted to
participate in a registration on account of such Holder's refusal to execute an
underwriting agreement on the basis of this Section 1.9(e).
(f) The obligations of the Company and Holders under this Section 1.9
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1 and otherwise.
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1.10 Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit Holders to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after the effective date of the
first registration statement filed by the Company for the offering of its
securities to the general public;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act; and
(c) furnish to each Holder, so long as such Holder owns any
Registrable Securities, forthwith upon written request (i) a written statement
by the Company that it has complied 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), the Securities Act and the 1934
Act (at any time after it has become subject to such reporting requirements), or
that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time after it so qualifies), (ii) 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 (iii) such other information as may be reasonably
requested in availing a Holder of any rule or regulation of the SEC that permits
the selling of any such securities without registration or pursuant to such
form.
1.11 Termination of Registration Rights. Holders shall not be entitled to
exercise any right provided for in this Section 1 when such Holder can sell all
of such Holder's Registrable Securities in a consecutive ninety (90) day period
pursuant to Rule 144 promulgated under the Securities Act.
1.12 Assignment of Rights. The right to cause the Company to register
Registrable Securities pursuant to this Section 1 may be assigned (but only with
all related obligations) by a Holder to a transferee of at least 50,000 shares
of Registrable Securities, provided the Company is, within a reasonable time
after such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; provided, further, that such assignment
shall be effective only if (i) the transferee agrees to be bound by the terms
hereof and (ii) immediately following such transfer the further disposition of
such securities by the transferee or assignee is restricted under the Securities
Act.
2. Miscellaneous Provisions.
2.1 Waivers and Amendments. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and each Holder. Any amendment or waiver
effected in accordance with this Section 2.1 shall be binding upon Holders and
the Company.
2.2 Notices. All notices and other communications required or permitted
hereunder shall be in writing and, except as otherwise noted herein, shall be
addressed as follows:
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(a) if to the Company, to:
TippingPoint Technologies, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to any Holder, at the address shown on such Holders
signature page hereto, marked for attention as there
indicated, to:
or to such other address as the party to whom notice is to be given may have
furnished to the other in writing in accordance with the provisions of this
Section 2.2. Any such notice or communication shall be deemed to have been
received: (i) in the case of telecopy or personal delivery, on the date of such
delivery; (ii) in the case of nationally-recognized overnight courier, on the
next business day after the date sent; and (iii) if by registered or certified
mail, on the third business day following the date postmarked.
2.3 Descriptive Headings. The descriptive headings herein have been
inserted for convenience only and shall not be deemed to limit or otherwise
affect the construction of any provisions hereof.
2.4 Governing Law. The construction, validity and interpretation of this
Agreement will be governed by and construed in accordance with the domestic laws
of the State of Delaware, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
2.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument, but only one of which
need be produced.
2.6 Expenses. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
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2.7 Successors and Assigns. Except as otherwise expressly provided in this
Agreement, this Agreement shall benefit and bind the successors, assigns, heirs,
executors and administrators of the parties to this Agreement.
2.8 Entire Agreement. This Agreement, together with the Purchase
Agreement, constitutes the full and entire understanding and agreement between
the parties with regard to the subject matter of this Agreement.
2.9 Separability; Severability. Unless expressly provided in this
Agreement, the rights of each Holder under this Agreement are several rights,
not rights jointly held with any other Holders. Any invalidity, illegality or
limitation on the enforceability of this Agreement with respect to any Holder
shall not affect the validity, legality or enforceability of this Agreement with
respect to the other Holders. If any provision of this Agreement is judicially
determined to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not be affected or impaired.
2.10 Stock Splits. All references to numbers of shares in this Agreement
shall be appropriately adjusted to reflect any stock dividend, split,
combination or other recapitalization of shares by the Company occurring after
the date of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first set forth above.
TIPPINGPOINT TECHNOLOGIES, INC.
By:______________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President, General Counsel and Secretary
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
The undersigned hereby executes this counterpart signature page of the
Registration Rights Agreement, dated as of October 2, 2002, by and among
TippingPoint Technologies, Inc. and certain Holders, including the undersigned.
____________________________________
Name of Holder (Please print)
By:_________________________________
(Signature)
By:_________________________________
(Second signature, if necessary)
Print Name:_________________________
Title:______________________________
Address:____________________________
____________________________________
____________________________________
Phone:______________________________
Fax:________________________________
