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EXHIBIT 10.10
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REGISTRATION RIGHTS AGREEMENT
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February 26, 1996
(as amended on September 29, 1997)
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TABLE OF CONTENTS
PAGE
I. REGISTRATION RIGHTS......................................................... 2
Section 1.1 Definitions................................................... 2
Section 1.2 Company Registration.......................................... 3
Section 1.3 Obligations of the Company.................................... 3
Section 1.4 Furnish Information........................................... 3
Section 1.5 Expenses of Company Registration.............................. 3
Section 1.6 Underwriting Requirements - Company Registration.............. 4
Section 1.7 Delay of Registration......................................... 5
Section 1.8 Indemnification............................................... 5
Section 1.9 "Market Stand-Off" Agreement.................................. 7
Section 1.10 Compliance with Rule 144...................................... 8
Section 1.11 Termination of Registration Rights............................ 8
II. COVENANTS OF HOLDERS........................................................ 9
Section 2.1 Covenants of Holders.......................................... 9
III. MISCELLANEOUS............................................................... 9
Section 3.1 Successors and Assigns........................................ 9
Section 3.2 Governing Law................................................. 9
Section 3.3 Counterparts.................................................. 9
Section 3.4 Titles and Subtitles.......................................... 9
Section 3.5 Notices....................................................... 9
Section 3.6 Expenses...................................................... 10
Section 3.7 Amendments and Waivers........................................ 11
Section 3.8 Severability.................................................. 11
Section 3.9 Aggregation of Stock.......................................... 11
Section 3.10 Entire Agreement.............................................. 11
Section 3.11 Facsimile Signatures.......................................... 11
Schedule A Schedule of Investors
Schedule B Schedule of Management Holders
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REGISTRATION RIGHTS AGREEMENT
[This agreement has been revised to reflect amendments made effective September
29, 1997]
This Registration Rights Agreement (the "Agreement") is made as of this
26th day of February, 1996, by and among Broadcom Corporation, a California
corporation (the "Company"), the investors listed on Schedule A hereto, each of
which is herein referred to as an "Investor" and collectively as the
"Investors", and the individuals listed on Schedule B hereto, each of which is
herein referred to as a "Management Holder" and collectively as the "Management
Holders."
RECITALS
WHEREAS, the (i) the Company and one of the Investors are parties to the
Purchase Agreement (the "Series A Purchase Agreement") dated July 1, 1994
whereby such Investor purchased from the Company shares of the Company's Series
A Preferred Stock, (ii) the Company and certain of the Investors are parties to
the Purchase Agreement (the "Series B Purchase Agreement") dated July 1, 1994
whereby such Investors purchased from the Company shares of the Company's Series
B Preferred Stock and Common Stock, (iii) the Company and one of the Investors
are parties to the Purchase Agreement (the "Series C Purchase Agreement") dated
March 22, 1995 whereby such Investor purchased from the Company shares of the
Company's Series C Preferred Stock, and (iv) the Company and certain of the
Investors are parties to the Purchase Agreement (the "Series D Purchase
Agreement") dated February 26, 1996 (the Series A Purchase Agreement, Series B
Purchase Agreement, Series C Purchase Agreement and Series D Purchase Agreement
each are referred to herein individually as a "Purchase Agreement" and
collectively as the "Purchase Agreements");
WHEREAS, each such Purchase Agreement, except for the Series D Purchase
Agreement, sets forth certain provisions with respect to the Investors' rights
to include shares of the Company's capital stock held by them in the Company's
registered public offerings of its capital stock; and
WHEREAS, in anticipation of the Company's initial public offering of
Common Stock, the Investors and Management Holders wish to consolidate and
clarify their right to participate in the Company's registered public offerings
of its capital stock in a single agreement which will supersede any registration
rights previously granted.
NOW, THEREFORE, the parties hereby agree as follows:
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I.
REGISTRATION RIGHTS
Section 1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Affiliate" means a person or entity that directly,
or indirectly through one or more intermediaries, controls or is controlled by,
or is under common control with, a specified person or entity.
(c) The term "Common Stock" means the Company's Common Stock
authorized for issuance under its Restated Articles of Incorporation.
(d) The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof.
(e) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(f) The term "register", "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(g) The term "Registrable Securities" means (i) shares of Common
Stock issued to the Investors pursuant to the Purchase Agreements; (ii) shares
of Common Stock issued to the Management Holders, including shares issuable upon
the exercise of stock options issued to the Management Holders; (iii) shares of
Common Stock issuable or issued to the Investors or Management Holders upon
conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock or Series E Preferred Stock; and (iv)
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
the shares referenced in (i), (ii) and (iii) above, excluding in all cases,
however, any Registrable Securities sold by a person in which such person's
rights under this Section I are not assigned.
(h) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
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(i) The term "SEC" shall mean the Securities and Exchange
Commission.
Section 1.2 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 shareholders other than the Holders) any of its
stock or other securities under the 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, a registration
on any form which 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 or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within 20 days after delivery of such notice by the Company in
accordance with Section 3.5, the Company shall, subject to the provisions of
Section 1.6, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
Section 1.3 Obligations of the Company. Whenever effecting the
registration of any Registrable Securities under this Section 1, the Company
shall, as expeditiously as reasonably possible:
(a) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(b) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(c) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
Section 1.4 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 any selling 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 the Company may reasonably request in writing and as shall be
required to effect the registration of such Holder's Registrable Securities.
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Section 1.5 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 registrations pursuant
to Section 1.2 for each Holder, including (without limitation) all registration,
filing, and qualification fees, printers and accounting fees relating or
apportionable thereto and the fees and disbursements for one counsel to the
Holders, such fees and disbursements not to exceed $27,500, but excluding
underwriting discounts and commissions relating to Registrable Securities.
Section 1.6 Underwriting Requirements - Company Registration. In
connection with any offering involving an underwriting of shares of the
Company's capital stock pursuant to Section 1.2, the Company shall not be
required under Section 1.2 to include any of the Holders' securities in such
underwriting unless they accept 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 the
underwriters determine in their sole discretion will not, jeopardize the success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by Holders to be included in such offering
exceeds the amount of securities sold other than by the Company that the
underwriters determine in their sole discretion is compatible with the success
of the offering, then the Company shall be required to include in the offering
only that number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering (the securities so included to be apportioned 50% to the
Management Holders and 50% to the Investors; provided that (i) the securities to
be included by the selling Management Holders shall be apportioned pro rata
among the selling Management Holders according to the total amount of securities
entitled to be included therein owned by each selling Management Holder, (ii)
the securities to be included by the selling Investors shall be apportioned pro
rata among the selling Investors according to the total number of securities
entitled to be included therein owned by each selling Investor, (iii) to the
extent the selling Management Holders do not request that Registrable Securities
in an amount equal at least to 50% of the total number of such securities
permitted by the underwriters be included in such underwriting, the selling
Investors may include additional Registrable Securities equal to the balance of
the Management Holders' portion, such additional Registrable Securities to be
apportioned pro rata among the Investors in the manner described above and (iv)
to the extent the selling Investors do not request that Registrable Securities
in an amount equal at least to 50% of the total number of such securities
permitted by the underwriters be included in such underwriting, the selling
Management Holders may include additional Registrable Securities equal to the
balance of the Investors' portion, such additional Registrable Securities to be
apportioned pro rata among the Management Holders in the manner described above)
but in no event shall the amount of securities of the selling Holders included
in the offering be reduced below 25% of the total amount of securities requested
by the Holders to be included in the 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 underwriters make the determination described
above. For
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purposes of the preceding parenthetical concerning apportionment, for any
selling Holder which is a partnership or corporation, the partners, retired
partners and shareholders 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 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.
Section 1.7 Delay of Registration. No Holder shall 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 filed with and declared
effective by the SEC.
Section 1.8 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 Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
or the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, or the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, 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 subsection 1.8(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), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by such Holder, underwriter or controlling person. Notwithstanding
the foregoing, the Company shall not be required to indemnify any Holder
pursuant to this Section 1.8(a) against any loss, claim, damage, liability, or
action arising from any untrue or misleading statement or omission contained in
any
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preliminary prospectus, if such deficiency is corrected in the final prospectus
and the Company made timely delivery of the final prospectus to all purchasers
of shares of the Company's capital stock pursuant to the public offering of such
shares.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, or the 1934 Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay, any
legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 1.8(b), in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection 1.8(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); provided, that, in no
event shall any indemnity under this subsection 1.8(b) exceed the gross proceeds
from the offering received by such Holder. Notwithstanding the foregoing, no
Holder shall be required to indemnify the Company, its directors, its officers
or any controlling person pursuant to this Section 1.8(b) against any loss,
claim, damage, or liability arising from any untrue or misleading statement or
omission contained in any preliminary prospectus if such deficiency is corrected
in the final prospectus and the Company made timely delivery of the final
prospectus to all purchasers of shares of the Company's capital stock pursuant
to the public offering of such shares.
(c) Promptly after receipt by an indemnified party under this
Section 1.8 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 1.8, 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 with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party if the
indemnified party, acting reasonably, determines that representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by
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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
1.8, 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 1.8.
(d) If the indemnification provided for in this Section 1.8 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. 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 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, which shall be customary for registration of the type then proposed,
shall control.
(f) The obligations of the Company and Holders under this Section
1.8 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
Section 1.9 "Market Stand-Off" Agreement. Each Holder hereby agrees
that, during the period of duration specified by the Company and an underwriter
of Common Stock or other securities of the Company, following the date of the
first sale to the public pursuant to a registration statement of the Company
filed under the Act, it shall not, to the extent requested by the Company and
such underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it at any time during such period
except Common Stock included in such registration; provided, however, that:
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(a) with respect to the first such registration statement of the
Company which covers Common Stock (or other securities) to be sold on its behalf
to the public in an underwritten offering such market stand-off time period
shall not exceed 180 days;
(b) with respect to any subsequent registration statement such
market standoff time period shall not exceed 90 days;
(c) all officers and directors of the Company and all other
persons with registration rights enter into similar agreements;
(d) each Holder's agreement to refrain from the acts and
transactions described in this Section 1.9 shall not prohibit such Holders from
transferring Registrable Securities (i) as a bona fide gift; (ii) as a private
sale; or (iii) as a contribution to one or more trusts provided that in each
such transfer the recipients of such Registrable Securities agree to be bound by
this Agreement (the foregoing notwithstanding, each Holder may transfer up to
10% of the Registrable Securities held by such Holder to a charitable
institution without requiring that such charitable institution agree to be bound
by this Agreement); and
(e) the underwriter will agree to give reasonable consideration
in good faith to a request by a Holder to be released from the terms of this
Section 1.9 and any related underwriter's letter based upon hardship of the
Holder or of a member of such Holder's immediate family.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period. If requested to do so by
the Company, each Holder shall execute an underwriter's letter the terms of
which are consistent with the foregoing prior to the registration of the
Company's initial public offering.
Notwithstanding the foregoing, the obligations described in this Section
1.9 shall not apply to a registration relating solely to employee benefit plans
on Form S-l or Form S-8 or similar forms which may be promulgated in the future,
or a registration relating solely to a Commission Rule 145 transaction on Form
S-14 or Form S-15 or similar forms which may be promulgated in the future.
Section 1.10 Compliance with Rule 144.
(a) In the event that the Company shall commence to file reports
under Section 13 or 15(d) of the 1934 Act, thereafter, at the request of any
Holder who proposes to sell Registrable Securities in compliance with the filing
requirements of the SEC as set forth in
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Rule 144, the Company shall forthwith furnish to such Holder a written statement
of compliance with the filing requirements of the SEC as set forth in Rule 144.
(b) Nothing in this Section 1.10 shall prevent the Company from
discontinuing filing such reports if permissible under the Securities Act and
Rule 144, provided that it shall give reasonable notice of its intent to
discontinue to each Holder who has previously requested a statement of
compliance.
Section 1.11 Termination of Registration Rights. No Holder shall be
entitled to exercise any right provided for in this Section 1 after five years
following the consummation of the sale of securities pursuant to a registration
statement filed by the Company under the Act in connection with the initial firm
commitment underwritten offering of its securities to the general public. The
foregoing notwithstanding, no Holder shall be entitled to exercise any right
provided for in this Section 1 following the consummation of the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with the initial firm commitment underwritten offering of its
securities to the general public if the Registrable Securities held by such
Holder may be sold pursuant to Rule 144.
II.
COVENANTS OF HOLDERS
Section 2.1 Covenants of Holders. The Holders, and their duly appointed
representatives, shall obtain and provide to the Company, promptly upon request,
any and all information reasonably required by the Company to comply with state
and federal securities laws and other requirements, including but not limited
to, beneficial ownership information and all shall cooperate with any state or
federal licensing agency in any investigation by such agencies.
III.
MISCELLANEOUS
Section 3.1 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferee of any shares of Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
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Section 3.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
Section 3.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 3.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
Section 3.5 Notices. All notices, requests, demands and other
communications which a party is required to or may desire to give any other
party in connection with this Agreement shall be in writing, and shall be
personally delivered, delivered by facsimile transmission, or delivered by
United States registered or certified mail, postage prepaid with return receipt
requested, addressed as follows:
If to the Company: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Broadcom Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holders: At the addresses on the signature
pages of this Agreement
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Irell & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
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And a copy to: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
O'Melveny & ▇▇▇▇▇
1999 Avenue of the Stars
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to: Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
If notice is given by personal delivery in accordance with the provisions of
this Section 3.5, said notice shall conclusively be deemed given at the time of
delivery. If notice is given by confirmed facsimile transmission in accordance
with the provisions of this Section 3.5, said notice shall conclusively be
deemed given at the time of the transmission. If notice is given by mail in
accordance with the provisions of this section, said notice shall conclusively
be deemed given 48 hours after deposit thereof in the United States mail. The
addressees or addresses set forth above may be changed from time to time by a
notice sent to the other parties.
Section 3.6 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 attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
Section 3.7 Amendments and Waivers. 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 the holders of
a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company.
Section 3.8 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
Section 3.9 Aggregation of Stock. All shares of Registrable Securities
held or acquired by a Holder's Affiliate shall be aggregated together for the
purpose of determining the availability of such Holder's rights under this
Agreement.
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Section 3.10 Entire Agreement. This Agreement (including the exhibits
and schedules hereto, if any) constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
This Agreement supersedes any registration rights granted to the Holders
including, without limitation, any registration rights granted under any of the
Purchase Agreements. Each party to this Agreement acknowledges and represents
that no representations, warranties, covenants, conditions, inducements,
promises or agreements, oral or otherwise, other than as set forth herein, have
been made by any party hereto, or anyone acting on behalf of any party.
Section 3.11 Facsimile Signatures. This Agreement may be executed
manually or by facsimile signatures, all of which signatures shall have the same
force and effect. Any party executing this Agreement by facsimile shall as soon
as practicable thereafter deliver to counsel for the other parties a manually
signed copy of this Agreement.
[Signature Page Follows]
12.
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[Signature Page for Registration Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
THE COMPANY: BROADCOM CORPORATION
a California corporation
By:
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By:
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MANAGEMENT HOLDERS:
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INVESTORS: INTEL CORPORATION
By:
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SCIENTIFIC-ATLANTA, INC.
By:
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▇▇▇▇▇▇ ENTERPRISES ▇▇▇▇▇ ▇▇▇▇▇▇
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By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
Trustees of the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Trust, Dated 1-2-1996
18
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By:
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SCHEDULE A TO REGISTRATION RIGHTS AGREEMENT
Investors
NextLevel Systems, Inc.
Intel Corporation
Scientific-Atlanta, Inc.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ Trust Dated 1-2-1996
20
SCHEDULE B TO REGISTRATION RIGHTS AGREEMENT
Management Holders
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