Exhibit 4.1
Form of the Registration Rights Agreement
VITESSE SEMICONDUCTOR CORPORATION
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made effective as
of May ___, 1999 (the "Effective Date"), by and among Vitesse Semiconductor
Corporation, a Delaware corporation (the "Parent"), XaQti Corporation, a
California corporation (the "Company") and the shareholders and warrant holders
of the Company listed on Exhibit A hereto (collectively, the "Shareholders").
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RECITALS
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A. The Company, Parent, Power Acquisition Corp., a Delaware corporation
("Sub") and certain others, are parties to the Agreement and Plan of
Reorganization dated May 21, 1999 (together with the exhibits and schedules
thereto, the "Merger Agreement"), pursuant to which Sub shall be merged with and
into the Company, the separate corporate existence of Sub shall cease and the
Company shall continue as the surviving corporation and as a wholly-owned
subsidiary of Parent.
B. Pursuant to the Merger Agreement, among other things, the Shareholders
shall have the right to receive the shares of common stock of Parent (the
"Shares") as set forth opposite each Shareholders name on Exhibit A in exchange
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for outstanding shares of Company capital stock or upon the exercise or
conversion of warrants therefor.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, all parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Black-Out Period" means any period during which executive officers and
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directors of Parent are generally prohibited from engaging in trades in Parent's
securities pursuant to Parent's Insider Trading Policy.
"Commission" means the Securities and Exchange Commission or any other
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Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
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any similar Federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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"Holder" means any of the Shareholders, for so long as such person holds
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any Registrable Securities, or any person holding Registrable Securities to whom
the rights under this Agreement have been transferred in accordance with Section
11 hereof.
"Insider Trading Policy" means the policy adopted by Parent's Board of
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Directors, as such may be amended from time to time, relating to transactions in
Parent's securities by Parent's executive officers and directors.
"Permitted Window" means the period during which a Holder entitled to sell
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Registrable Securities pursuant to a registration statement under Section 5(a)
of this Agreement shall be permitted to sell Registrable Securities pursuant to
such a registration. Except as otherwise set forth in this Agreement, a
Permitted Window shall (i) commence upon the tenth business day following
receipt by Parent of a written notice from a Holder to Parent that such Holder
intends to sell Shares pursuant to such registration statement, or such earlier
date as Parent may agree to, and shall (ii) terminate upon the commencement of a
Black-Out Period.
"Registrable Securities" means the Shares and any Common Stock of Parent
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issued or issuable in respect thereof upon any conversion, stock split, stock
dividend, recapitalization, merger or other reorganization; provided, however,
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that securities shall only be treated as Registrable Securities if and so long
as they have not been registered or sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction; and
provided, further that the Company shall have no obligation hereunder to
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register any warrants exercisable for or convertible into Shares.
"Register," "registered" and "registration" refer to a registration
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effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" means all expenses, except Selling Expenses,
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incurred by Parent in complying with Section 5 hereof, including without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for Parent, blue sky fees and
expenses, the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of Parent
which shall be paid in any event by Parent).
"Restricted Securities" means the securities of Parent required to bear a
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legend as described in Section 3 hereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
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similar Federal rule or statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means all underwriting discounts, selling commissions
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and stock transfer taxes applicable to the securities registered by the Holders
and all fees and disbursements of counsel for any Holder.
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2. Restrictions on Transferability. The Restricted Securities and
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any other securities issued in respect of such securities upon any stock split,
stock dividend, recapitalization, merger or other reorganization, shall not be
sold, assigned, transferred or pledged except upon the conditions specified in
this Agreement, which conditions are intended to ensure compliance with the
provisions of the Securities Act. Each Holder or transferee will cause any
proposed purchaser, assignee, transferee, or pledgee of any such securities held
by the Holder or transferee to agree to take and hold such securities subject to
the restrictions and upon the conditions specified in this Agreement, including
without limitation the restrictions set forth in Section 4.
3. Restrictive Legend. Each certificate representing the Shares or
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any other securities issued in respect of such securities upon any stock split,
stock dividend, recapitalization, merger or other reorganization shall be
stamped or otherwise imprinted with the following legends:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT
BE TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SAID
ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN THE OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER, SUCH TRANSFER MAY BE
MADE WITHOUT REGISTRATION UNDER SAID ACT
Each Holder consents to Parent making a notation on its records and giving
instructions to any transfer agent of its capital stock in order to implement
the restrictions on transfer established in this Agreement and the Purchase
Agreement.
4. Notice of Proposed Transfers. The holder of each certificate
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representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Without in any way limiting the
immediately preceding sentence or the provisions of Section 2, no sale,
assignment, transfer or pledge (other than (i) a sale made pursuant to a
registration statement filed under the Securities Act and declared effective by
the Commission or (ii) a sale made in accordance with the applicable provisions
of Rule 144) of Restricted Securities shall be made by any holder thereof to any
person unless such person shall first agree in writing to be bound by the
restrictions of this Agreement, including without limitation this Section 4.
Prior to any proposed sale, assignment, transfer or pledge of any Restricted
Securities, unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, the holder thereof shall give
written notice to Parent of such holder's intention to effect such transfer,
sale, assignment or pledge. Each such notice shall describe the manner and
circumstances of the proposed transfer, sale, assignment or pledge in sufficient
detail, and, if requested by Parent, the holder shall also provide, at such
holder's expense, a written opinion of legal counsel (who shall be, and whose
legal opinion shall be, reasonably satisfactory to Parent) addressed to Parent,
to the effect that the proposed transfer of the Restricted Securities may be
effected without registration under the Securities Act and under applicable
state securities laws and regulations. Upon delivery to Parent of such notice
and, if required, such opinion, the holder of such Restricted Securities shall
be entitled to transfer such Restricted Securities in accordance with the terms
of such notice.
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Parent agrees that it shall not request such an opinion of counsel with respect
to (i) a transfer not involving a change in beneficial ownership, (ii) a
transaction involving the transfer without consideration of Restricted
Securities by an individual holder during such holder's lifetime by way of gift
or on death by will or intestacy. Each certificate evidencing the Restricted
Securities transferred as above provided shall bear, except if such transfer is
made pursuant to Rule 144, the appropriate restrictive legend set forth in
Section 3 above, except that such certificate shall not bear such restrictive
legend if, in the opinion of counsel for such holder and counsel for Parent,
such legend is not required in order to establish or ensure compliance with any
provision of the Securities Act.
5. Registration on Form S-3.
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(a) Registration. Parent shall use its commercial best efforts to
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cause a registration statement on Form S-3 (or any successor form, collectively,
a "Form S-3") covering all Registrable Securities to be filed and declared
effective no later than the second day after the day that Parent publicly
announces financial results covering at least thirty (30) days of combined
operations of Parent and Company. Parent shall use its commercially reasonable
efforts to keep such registration statement effective until the first
anniversary of the date of this Agreement, or such earlier date upon which no
Holder holds any Registrable Securities. Upon receipt of a notice from any
Holder that such Holder intends to sell Registrable Securities during a
Permitted Window, Parent shall, prior to the commencement of the Permitted
Window, inform the other Holders of the commencement of the Permitted Window.
Parent shall notify each of the Holders of the termination of a Permitted Window
no later than the time Parent notifies its executive officers and directors of
the corresponding Black-Out Period; provided, however, that Parent need not
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notify the Holders of regularly scheduled Black-Out Periods relating to the
closing of Parent's fiscal quarters, which periods commence on the fifteenth day
prior to the end of the last month of each fiscal quarter and terminate twenty-
four hours after Parent publicly announces its results for such quarters.
(b) Limitations on Registration and Sale of Registrable Securities.
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Notwithstanding anything in this Agreement to the contrary, Parent's obligations
and the Holders' rights under this Section 5 are subject to the limitations and
qualifications set forth below, which may be waived in writing by Parent.
(i) Parent shall have no obligation to keep effective a
registration statement hereunder following such time as each Holder is eligible
to sell all of its Registrable Securities in a three month period under the
applicable provisions of Rule 144.
(ii) The Holders will sell Registrable Securities pursuant to a
registration effected hereunder only during a Permitted Window.
(iii) If Parent furnishes to the Holders a certificate signed by
the President or Chief Financial Officer of Parent stating that, in the good
faith judgment of the Board of Directors of Parent, it would be seriously
detrimental to Parent for a Form S-3 registration to be effected, or a Permitted
Window to be in effect, due to (A) the existence of a material development or
potential material development involving Parent which Parent would be obligated
to disclose in the prospectus
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contained in the Form S-3 registration statement, which disclosure would in the
good faith judgment of the Board of Directors be premature or otherwise
inadvisable, (B) the existence of other facts or circumstances as a result of
which the prospectus contained or to be contained in the Form S-3 registration
statement includes or would include an untrue statement of a material fact or
omits or would omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made or then existing or (C) Parent's bona
fide intention to effect the filing of a registration statement with the
Commission within sixty (60) days of the receipt of a notice from a Holder that
it intends to sell Registrable Securities during a Permitted Window, Parent may
defer the filing of the Form S-3 registration statement or delay the
commencement of a Permitted Window or may effect an early termination of a
Permitted Window that has commenced, as the case may be. Parent may elect to so
defer, delay or terminate under clause (A) above only to the extent that the
event described in clause (A) also gives rise to a Black-Out Period applicable
to all of Parent's executive officers and directors under Parent's Insider
Trading Policy. If Parent elects to so defer, delay or terminate under clause
(B) above, Parent shall use its commercially reasonable efforts to amend the
registration statement or take such other action as may be necessary to
eliminate the situation described in clause (B) as soon as practicable. Any
Holder receiving any notice from Parent with respect to the matters covered by
this Section 5(b)(iii) shall keep the fact and content of such notice, and the
event or circumstances giving rise to such notice, confidential.
(iv) The obligations of Parent hereunder are conditioned upon
its being eligible to register its securities on Form S-3 or at the time any
such registration is otherwise required hereunder;
(v) At any time that Parent is obligated under this Agreement
to permit the Holders to sell Registrable Securities pursuant to a registration
statement on Form S-3, Parent may, instead of maintaining an effective
registration statement on Form S-3 for the benefit of the Holders, include such
Registrable Securities in a registration effected for the benefit of Parent
and/or other selling stockholders. In the event that such registration is in
connection with an underwritten offering, the Holders participating in such
registration shall enter into an underwriting agreement in customary form with
the managing underwriter selected by Parent, notwithstanding the provisions of
Section 5(c).
(vi) Notwithstanding anything to the contrary in this Agreement,
Parent shall have no obligation to effect a registration hereunder, and no
Permitted Window will exist, with respect to Registrable Securities that are
subject to the escrow provisions of the Merger Agreement (including any
agreement which is an exhibit thereto) during the time that such Registrable
Securities are subject to such provisions and no Holder shall sell any such
Registrable Securities pursuant to a registration hereunder, or pursuant to Rule
144, during any such period.
(c) Underwriting. At the election of the Holders representing a
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majority of the Registrable Securities that are proposed to be sold during a
Permitted Window (the "Deciding Holders"), all sales of Registrable Securities
under this Section 5 during such Permitted Window shall be made through an
underwriting managed by an underwriter selected by Parent and acceptable to
Deciding Holders (the "Managing Underwriter"). Parent shall, together with all
Holders proposing to distribute their Registrable Securities though such
underwriting, enter into an underwriting agreement in customary form with the
Managing Underwriter. If any Holder of Registrable Securities disapproves
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of the terms of the underwriting, such person may elect to withdraw therefrom by
written notice to Parent. Any Holder so withdrawing shall not sell any
Registrable Securities pursuant to a registration effected under this Agreement
until after the completion of such underwritten distribution. Nothing in this
section shall require the holders to select and sell any of the Shares through a
Managing Underwriter.
(d) Registration Procedures. In connection with any registration
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required under this Agreement, Parent shall take the actions set forth below.
(i) Prior to filing any registration statement, prospectus,
amendment or supplement with the Commission in connection with any registration
hereunder, Parent shall furnish to one counsel selected by the Holders of a
majority of the Registrable Securities copies of such documents.
(ii) Parent shall notify each Holder of any stop order issued or
threatened by the Commission and will take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered.
(iii) Parent shall comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by a registration
statement filed pursuant to this Agreement with respect to the disposition of
all Registrable Securities covered by such registration statement in accordance
with the intended methods of disposition by the Holders as set forth in such
registration statement.
(iv) Parent shall furnish to each Holder and each underwriter,
if any, of Registrable Securities covered by a registration statement filed
pursuant to this Agreement such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits
thereto), and the prospectus included in such registration statement (including
each preliminary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as a selling Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Holder. Such delivery of documents shall be made by Parent within
two (2) trading days of receipt of a request therefor from a Holder.
(v) Parent shall use its best efforts to register or qualify
the Registrable Securities under the securities or "blue sky" laws of each State
of the United States of America as any of the Holders or underwriters, if any,
of the Registrable Securities covered by a registration statement filed
hereunder reasonably requests, and shall do any and all other acts and things
which may be reasonably necessary or advisable to enable each selling Holder and
each underwriter, if any, to consummate the disposition in such States of the
Registrable Securities owned by such selling Holders; provided that Parent shall
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not be required to (A) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this subsection (v),
(B) subject itself to taxation in any such jurisdiction or (C) consent to
general service of process in any such jurisdiction.
6 of EX 4.1
(vi) Parent shall immediately notify each Holder entitled to
sell Registrable Securities during a Permitted Window of the happening of any
event which comes to Parent's attention if, as a result of such event, the
prospectus included in the registration statement filed under this Agreement
contains any untrue statement of a material fact or omits to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and Parent shall promptly prepare
and furnish to each Holder and file with the Commission a supplement or
amendment to such prospectus so that such prospectus will no longer contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(vii) Parent shall take all such other reasonable and customary
actions as each Holder or the underwriters, if any, may reasonably request in
order to expedite or facilitate the disposition of the Registrable Securities in
accordance with the terms of this Agreement.
(viii) Parent shall make available for inspection by the Holders,
any underwriter participating in any disposition pursuant to a registration
statement filed under this Agreement, and any attorney, accountant or other
agent retained by such Holders or underwriters, all financial and other records,
pertinent corporate documents and properties of Parent and its subsidiaries, as
such person may reasonably request for the purpose of confirming that such
registration statement does not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, provided
that Parent obtains reasonably satisfactory assurances that such information
will be used solely for such purpose and will be held in confidence (except to
the extent that it is included in the registration statement). Parent shall
cause the officers, directors and employees of Parent and each of its
subsidiaries to supply such information and respond to such inquiries as any
Holder or underwriter may reasonably request or make for the purpose of
confirming that such registration statement does not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, provided that Parent obtains reasonably satisfactory
assurances that such information will be used solely for such purpose and will
be held in confidence (except to the extent that it is included in the
registration statement).
6. Other Registration Rights. The Holders acknowledge that certain other
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stockholders of Parent may now or hereafter have registration rights, and that
such other stockholders may be entitled to sell their securities at the same
time, or pursuant to the same registration and underwriting, as the Holders
hereunder.
7. Expenses of Registration. All Registration Expenses incurred in
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connection with Parent's obligations hereunder shall be borne by Parent. All
Selling Expenses relating to securities proposed to be registered hereunder and
all other registration expenses shall be borne by the Holders of such securities
pro rata on the basis of the number of shares proposed to be sold by each of
them during the applicable Permitted Window.
8. Indemnification.
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(a) Parent will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration
has been effected pursuant to this Agreement, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, or based on any 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 and Parent will reimburse each such Holder, each of its officers,
directors and partners, and each person controlling such Holder, for any legal
and any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
provided that Parent will not be liable in any such case to the extent that any
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such claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to Parent by
an instrument duly executed by such Holder or controlling person, and stated to
be specifically for use therein; and provided, further, that the foregoing
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indemnity Agreement is subject to the condition that, insofar as it relates to
any such untrue statement, alleged untrue statement, omission or alleged
omission made in a preliminary prospectus, such indemnity agreement shall not
inure to the benefit of any person, if a copy of the final prospectus or an
amended or supplemented prospectus, as applicable, was not furnished to the
person asserting the loss, liability, claim or damage at or prior to the time
such action is required by the Securities Act, and if the final prospectus or
the amended or supplemented prospectus, as applicable, would have cured the
defect giving rise to the loss, liability, claim or damage. In no event,
however, shall Parent have any indemnification obligation to the extent that the
expenses, claims, losses, damages or liabilities as to which indemnification is
sought are in connection with an offer or sale made by a person other than
Parent in violation of the terms of this Agreement (a "Violation").
(b) Each Holder will, severally and not jointly and severally, if
Registrable Securities held by such Holder are included in the securities as to
which a registration hereunder is effected, indemnify Parent, each of its
directors and officers, each person who controls Parent within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on (i) a
Violation by such Holder or (ii) any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
Parent, such Holders, such directors, officers or control persons for any legal
or any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, but, in the case of
clause (ii) above, only to the extent that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with information furnished to Parent by such Holder.
Notwithstanding
8 of EX 4.1
the foregoing, the liability of each Holder under this subsection 8.7(b) shall
be limited in an amount equal to the initial public offering price of the shares
sold by such Holder, unless such liability arises out of or is based on a
Violation or willful misconduct by such Holder.
(c) Each party entitled to indemnification under this Section 8 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that (i) counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, (ii) that the failure of any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of its obligations
under Section 8 of this Agreement unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action,
and then only to the extent that such Indemnifying Party is materially
prejudiced, and (iii) that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or there are separate
and different defenses. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party (whose
consent shall not be unreasonably withheld), consent to entry of any judgment or
enter into any settlement which (i) 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 to such claim or litigation or (ii)
includes admission of fault by the Indemnified Party. Notwithstanding the
foregoing, the liability of each Holder under this subsection 8.7(c) shall be
limited in an amount equal to the initial public offering price of the shares
sold by such Holder, unless such liability arises out of or is based on a
Violation or willful misconduct by such Holder.
9. Information by Holder. The Holder or Holders of Registrable
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Securities included in any registration hereunder shall furnish to Parent such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as Parent may
request in writing and as shall be required in connection with any registration
referred to in this Agreement.
10. Rule 144 Reporting. With a view to making available the benefits
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of certain rules and regulations of the Commission which may permit the sale of
the Restricted Securities to the public without registration Parent agrees to
use all reasonable efforts, at any time after the first anniversary of the
Effective Date, to:
(1) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act; and
(2) File with the Commission in a timely manner all reports and other
documents required of Parent under the Securities Act and the Exchange Act.
9 of EX 4.1
11. Transfer of Registration Rights. The rights to cause Parent to
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register securities granted to Holders under Section 5 may be assigned to a
transferee or assignee reasonably acceptable to Parent in connection with any
transfer or assignment of Registrable Securities by the Holder, provided that
(i) such transfer is otherwise effected in accordance with applicable securities
laws and the terms of this Agreement, (ii) such assignee or transferee acquires
at least 10,000 shares of Registrable Securities (as adjusted for stock splits,
stock dividends, stock combinations and the like), (iii) written notice is
promptly given to Parent and (iv) such transferee agrees in writing to be bound
by the provisions of this Agreement. Notwithstanding the foregoing, the rights
to cause Parent to register securities may be assigned without compliance with
item (ii) above to a family member or trust for the benefit of a Holder who is
an individual, or a trust for the benefit of a family member of such a Holder.
In addition, a distribution of Shares issued in the Merger without additional
consideration to underlying beneficial owners in proportion to the beneficial
ownership interests (such as the general and limited partners, shareholders and
trust beneficiaries of a Holder) shall not be deemed to be an "assignment" or
"transfer" for purposes of the Section 11 and such underlying beneficial owners
shall be entitled to the same rights and subject to the same restrictions under
this Agreement as the initial Holder from which the Registrable Securities were
received without any additional action on the part of any party to this
Agreement other than reasonable notice to Parent of such distribution.
12. Amendment. Except as otherwise provided above, any provision of this
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Agreement may be amended or the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Parent and Holders of a
majority of the Registrable Securities remaining at the time such amendment or
waiver is made.
13. Governing Law. This Agreement shall be governed in all respects by
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the laws of the State of California, without regard to conflict of laws
provisions.
14. Entire Agreement. This Agreement constitutes the full and entire
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understanding and Agreement among the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, all other agreements
regarding the registration rights of the Company's shareholders shall hereby
expire. The provisions hereof shall inure to the benefit of, and be binding
upon the successors, assigns, heirs, executors and administrators of the parties
hereto.
15. Notices, etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by facsimile
transmission, by hand or by messenger, addressed:
(a) if to a Holder, at such Holder's address as set forth below such
Holder's signature on this Agreement, or at such other address as such Holder
shall have furnished to Parent.
(b) if to Parent, to:
Vitesse Semiconductor Corporation
741 Calle Plano
Camarillo, California 93012
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Fax: (805) 388-7565
Attn: Yatin Mody
or at such other address as Parent shall have furnished to the
Holders, with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, CA 94304-1050
Attn: Francis S. Currie, Esq.
Fax: (650) 493-6811
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally or by facsimile transmission, or, if sent by mail, at the
earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
16. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
"PARENT"
Vitesse Semiconductor Corporation
a Delaware corporation
By:_____________________________________
Title:__________________________________
"THE HOLDERS"
________________________________________
By:_____________________________________
Its:____________________________________
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
12 of EX 4.1
EXHIBIT A
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Number of Shares Held
Shareholder or Issuable Pursuant to Warrants
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EX-A of EX 4.1