EXHIBIT 4.1
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as
of _______________, 1996 by and between C-Cube Microsystems Inc., a Delaware
corporation ("Company"), Sagem, S.A., Sagem International S.A. and Tregor
Electronique S.A., each a company organized under the laws of France, and Iena
International S.A., a company organized under the laws of Luxembourg, each of
which is a former stockholder (collectively, the "Holder") of DiviCom Inc., a
Delaware corporation ("DiviCom").
RECITALS
A. Pursuant to the terms of the Agreement and Plan of Reorganization
dated as of May ___, 1996 (the "Reorganization Agreement") by and among Company,
C-Cube Acquisition Corp. ("Merger Sub"), a Delaware corporation and wholly owned
subsidiary of Company, and DiviCom, DiviCom is being merged with and into Merger
Sub (the "Merger"), with Merger Sub being the surviving corporation.
B. In connection with the Merger and pursuant to the terms of the
Reorganization Agreement, Holder received _______ shares (the "Shares") of
common stock of Company ("Company Common Stock").
C. The Reorganization Agreement provides for the execution and delivery
of this Agreement, which grants Holder certain rights to have its shares
registered under the Securities Act (as hereinafter defined) at the closing of
the transactions contemplated thereby.
In consideration of the representations, warranties, covenants and
conditions contained herein and in the Reorganization Agreement, the parties
hereto agree as follows:
AGREEMENT
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
1.1. "Manager" shall mean the investment banking firm or firms
designated by Holder as the managing underwriter(s) of an offering registered
pursuant to this Agreement, which firm or firms shall be the existing investment
bankers for or other nationally recognized investment bankers reasonably
acceptable to Company.
1.2. "Register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (as hereinafter defined), the declaration or
ordering of the effectiveness of such registration statement, and compliance
with applicable state securities laws of such states in which Holder or the
Manager notifies Company of its intention to offer Registrable Securities.
1.3. "Registrable Securities" shall mean (i) any and all shares of
Company Common Stock issued to Holder pursuant to the Reorganization Agreement
to the extent such shares have not been sold (the "Merger Stock") or (ii) stock
issued in respect of the Merger Stock as a result of a
stock split or stock dividend or in connection with a recapitalization,
combination, exchange, reorganization or reclassification of Company Common
Stock, or pursuant to a merger, consolidation or other similar business
combination transaction involving Company.
1.4. "Securities Act" shall mean the United States Securities Act of
1933, as amended, or any similar federal United States statute and the rules and
regulations thereunder, all as the same shall be in effect at the time.
1.5. "SEC" shall mean the United States Securities and Exchange
Commission or any other United States federal agency at the time administering
the Securities Act.
2. REGISTRATION RIGHTS.
2.1. DEMAND REGISTRATION RIGHTS.
(a) In the event Company shall receive from Holder a written
request that Company effect a registration on Form S-3 (and any related state
qualification or compliance) with respect to all or a part of the Registrable
Securities owned by Holder (a "Demand Registration"), Company shall:
(1) as soon as reasonably practicable, and at its expense
as set forth in Section 3 hereof, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of Holder's
Registrable Securities as are specified in such request; provided, however, that
Company shall not be obligated to effect any such registration, qualification or
compliance, pursuant to this Section 2.1, (i) if Form S-3 (or any successor
form) is not available for such offering by Holder; (ii) if Holder proposes to
sell Registrable Securities in an aggregate amount less than 10% of the
Registrable Securities initially issued to Holder pursuant to the Reorganization
Agreement, as adjusted to reflect any event specified in Section 1.3(ii) hereof;
(iii) if two (2) Demand Registrations filed for Holder pursuant to this
Section 2.1 have become and remained effective and current as required by law
for the period required by Section 4.1 hereof; (iv) if Company has effected a
registration for Holder pursuant to this Section 2 within 365 days of the
receipt of such request; PROVIDED, HOWEVER, that so long as the number of shares
of Company Common Stock then held by Holder exceeds the greater of (x) 1% of the
Company's outstanding common stock and (y) the average weekly reported volume of
trading in such securities on all national securities exchanges and/or reported
through the Nasdaq Stock Market during Company's immediately preceding four full
calendar weeks, then such 365-day period shall be reduced to 180 days; (v) if
the request for a registration is made on or before the date that is 90 days
after the Effective Time of the Merger; (vi) in any particular jurisdiction in
which Company would be required to qualify to do business or to execute a
general consent to service of process in effecting such registration,
qualification or compliance; and (vii) at any time after three (3) years from
the date hereof;
(2) subject to the foregoing, Company shall file a
registration statement on Form S-3 (or any successor form) covering the
Registrable Securities and use reasonable efforts to cause it to become and
remain effective, as soon as practicable after receipt of the request of Holder;
and
(3) at the request of Holder or Manager, enter into and
perform its obligations under an underwriting or purchase agreement (the
"Underwriting Agreement") in customary form for secondary offerings of common
stock on Form S-3, and otherwise reasonably
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acceptable to the parties, with the Manager (acting for itself and/or a group or
syndicate of underwriters) and Holder.
(b) It is agreed that with respect to any Demand Registration
requested pursuant to this Section 2.1, Company may defer the filing or
effectiveness of any registration statement related thereto for a reasonable
period of time not to exceed 90 days after such request if (A) Company is, at
such time, working on an underwritten public offering of Company Common Stock
("Company Common Stock Offering") and is advised by its managing underwriter(s)
that such offering would in its or their opinion be adversely affected by such
filing and Holder will be afforded an opportunity to include in such offering at
least 50% of its Registrable Securities as to which the request was made or
(B) Company determines, in its good faith and reasonable judgment, that any such
filing or the offering of any Registrable Securities would materially impede,
delay or interfere with any material proposed financing, offer or sale of
securities, acquisition, corporate reorganization or other significant
transaction involving Company; PROVIDED, HOWEVER, that with respect to
clause (B), Company gives Holder written notice of such determination; and
PROVIDED FURTHER, HOWEVER, with respect to both clauses (A) and (B), Company
shall not be entitled to postpone such filing or effectiveness if, within the
preceding 12 months, it had effected two postponements pursuant to this
Section 2.1(b) and, following such postponements, the Registrable Securities to
be sold pursuant to the postponed registration statements were not sold (for any
reason).
2.2 PIGGYBACK REGISTRATION RIGHTS. If at any time Company proposes
to register shares of Company Common Stock under the Securities Act solely for
the account of selling securityholders (other than a registration on Form S-8,
or any successor or similar forms), and is not precluded from including the
Registrable Securities of Holder in such registration by virtue of an existing
registration rights agreement, it shall each such time promptly give notice to
Holder of its intention to do so, of the SEC registration form that has been
selected by Company and of rights of Holder under this Section 2.2 (the
"Section 2.2 Notice"). Unless selling securityholders whose shares are included
on such registration statement have current rights to registration that would
preclude such proration, the Registrable Securities shall be included thereon
PRO RATA to those of the other selling securityholder or holders.
Notwithstanding the foregoing, (x) if, at any time after giving written notice
of its intention to register outstanding shares of Company Common Stock and
prior to the effective date of the registration statement filed in connection
with such registration, Company shall determine for any reason not to register
such outstanding equity securities, Company may, at its election, give written
notice of such determination to Holder and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
abandoned registration, without prejudice, however, to the rights of Holder
under Section 2.1 hereof, (y) in case of a determination by Company to delay
registration of Company Common Stock, Company shall be permitted to delay the
registration of such Registrable Securities for the same period as the delay in
registering such Company Common Stock, and (z) Company shall only be required to
include in the proposed registration that quantity of Registrable Securities as
will not, in the written opinion of the underwriters, jeopardize the success of
the offering by the Company. No registration effected under this Section 2.2
shall relieve Company of its obligation to effect a Demand Registration under
Section 2.1 hereof. Notwithstanding Section 4, Holder will be subject to the
procedures governing the other selling stockholders in any registration effected
under this Section 2.2.
3. EXPENSES OF REGISTRATION. Whether or not any registration statement
prepared and filed pursuant to Section 2 hereof is declared effective by the SEC
(except where a Demand Registration is terminated, withdrawn or abandoned at the
written request of Holder), Company shall pay all expenses incident to Company's
performance of or compliance with the registration
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requirements of this Agreement, including, without limitation, the following:
(A) all SEC registration and filing fees and expenses; (B) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of Registrable Securities;
(C) any and all expenses incident to its performance of, or compliance with,
this Agreement, including, without limitation, any allocation of salaries and
expenses of Company personnel or other general overhead expenses of Company, or
other expenses for the preparation of historical and pro forma financial
statements; (D) fees and expenses incurred in connection with the listing of
Registrable Securities on each securities exchange or the NASDAQ Stock Market,
as applicable, on which securities of the same class are then listed; (E) all
transfer and/or exchange agent and registrar fees; (F) fees and expenses in
connection with the qualification of the Registrable Securities under securities
or "blue sky" laws including reasonable fees and disbursements of counsel for
the underwriters in connection therewith; (G) mailing and printing expenses
relating to the registration and distribution of Registrable Securities;
(H) messenger and delivery expenses relating to the registration and
distribution of Registrable Securities; and (I) fees and out-of-pocket expenses
of counsel for Company and its independent certified public accountants
(including the expenses of any audit, review and/or "cold comfort" letters) and
other persons, including special experts, retained by Company (collectively,
clauses (A) through (I), "Registration Expenses"); PROVIDED, HOWEVER, that
Company shall not be required to pay, and Holder shall pay, any discounts,
commissions or fees of underwriters, selling brokers and dealers relating to the
distribution of the Registrable Securities, and any fees and out-of-pocket
expenses of counsel selected by Holder in connection with the registration of
Registrable Securities.
4. REGISTRATION PROCEDURES. In the case of each registration effected by
Company pursuant to Section 2.1 of this Agreement, Company shall keep Holder
advised in writing as to the initiation of each registration and as to the
completion thereof. Company shall (i) permit Holder, the Manager, if any, and
their respective counsel to make such investigation of Company as they may
reasonably request, (ii) furnish to Holder, the Manager and their respective
counsel drafts of the registration statement and all amendments thereto, all
prospectuses and supplements thereof prior to filing with the SEC and consider
their comments and suggestions with respect to such documents, and (iii) not
file any such registration statement, amendment, prospectus or supplement to
which Holder or the Manager shall reasonably object. At its expense, Company
shall:
4.1 keep such registration pursuant to Section 2 hereof effective and
current as required by law for a period of 90 days or such reasonable period
necessary to permit Holder to complete the distribution described in the
registration statement relating thereto, whichever first occurs, or for such
period as may be agreed to in the Underwriting Agreement;
4.2 prepare and file with the SEC such amendments, post-effective
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to comply with the provisions
of the Securities Act and the Underwriting Agreement and to keep such
registration statement effective and current as required by law for that period
of time specified in Section 4.1 hereof, in each case exclusive of any period
during which the prospectus used in connection with such registration shall not
comply with the requirements of Section 10 of the Securities Act, and respond as
promptly as practicable to any comments received from the SEC with respect to
such registration statement or any amendment thereto;
4.3 furnish such number of copies of the registration statement, each
amendment thereto, each preliminary prospectus, prospectuses, supplements and
incorporated documents and other documents incident thereto as Holder or the
Manager from time to time may reasonably
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request;
4.4 use all reasonable efforts to register or qualify the Registrable
Securities covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions as Holder and each underwriter of the
Registrable Securities shall reasonably request, and do any and all other acts
and things which may be necessary or desirable to enable Holder and such
underwriter to consummate the offering and disposition of Registrable Securities
in such jurisdictions; provided, however, Company shall not, by virtue of this
Agreement, be required to qualify generally to do business as a foreign
corporation, subject itself to taxation, or consent to general service of
process, in any jurisdiction wherein it would not, but for the requirements of
this Section 4.4, be obligated to be qualified;
4.5 notify Holder and Manager promptly and, if requested by any such
person, confirm such notification in writing, (A) when a prospectus or any
prospectus supplement has been filed with the SEC, and, with respect to a
registration statement or any post-effective amendment thereto, when the same
has been declared effective by the SEC, (B) of any request by the SEC for
amendments or supplements to a registration statement or related prospectus, or
for additional information, (C) of the issuance by the SEC of any stop order or
the initiation of any proceedings for such or a similar purpose (and Company
shall make every reasonable effort to obtain the withdrawal of any such order at
the earliest practicable time), (D) of the receipt by Company of any
notification with respect to the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose (and Company shall make every
reasonable effort to obtain the withdrawal of any such suspension at the
earliest practicable time), (E) of the occurrence of any event with requires the
making of any changes to a registration statement or related prospectus so that
such documents shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading (and Company shall promptly prepare and furnish to Holder
and Manager a reasonable number of copies of a supplemented or amended
prospectus such that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading), and (F) of Company's determination that
the filing of a post-effective amendment to the Registration Statement shall be
necessary or appropriate. Holder agrees that Holder shall, as expeditiously as
possible, notify Company at any time when a prospectus relating to a
registration statement covering Holder's Registrable Securities is required to
be delivered under the Securities Act, of the happening of any event of the kind
described in this Section 4.5 as a result of any information provided by Holder
for inclusion in such prospectus included in such registration statement and, at
the request of Company, promptly prepare and furnish to it such information as
may be necessary so that, after incorporation into a supplement or amendment of
such prospectus as thereafter delivered to the purchasers of such securities,
the information provided by Holder shall not include an untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. Holder shall be deemed to have
agreed by acquisition of such Registrable Securities that upon the receipt of
any notice from the Company of the occurrence of any event of the kind described
in clause (E) of this Section 4.5, such Holder shall forthwith discontinue
Holder's offer and disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until Holder shall
have received copies of a supplemented or amended prospectus which is no longer
defective as contemplated by clause (E) of this Section 4.6 and, if so directed
by
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Company, shall deliver to Company, at Company's expense, all copies (other than
permanent file copies) of the defective prospectus covering such Registrable
Securities which are then in Holder's possession. In the event Company shall
provide any notice of the type referred to in the preceding sentence, the 90-day
period mentioned in Section 4.1 hereof shall be extended by the number of days
from and including the date such notice is provided, to and including the date
when Holder shall have received copies of the corrected prospectus contemplated
by clause (E) of this Section 4.5, plus an additional seven days;
4.6 use all reasonable efforts to cause all such Registrable
Securities covered by such registration statement to be listed on each
securities exchange or the Nasdaq Stock Market, as applicable, on which similar
securities issued by Company are then listed, if the listing of such Registrable
Securities is then permitted under the rules and regulations of such exchange or
the Nasdaq Stock Market, as applicable;
4.7 engage and provide a transfer agent for all Registrable
Securities covered by such registration statement not later than the effective
date of such registration statement;
4.8 whether or not an underwriting agreement of the type referred to
in Section 2.1.1(c) hereof is entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten offering
or is made through a placement or sales agent or any other entity, (A) make such
representations and warranties to the underwriters, if any, thereof in form,
substance and scope as are customarily made in connection with an offering of
common stock or other equity securities pursuant to any appropriate agreement
and/or to a registration statement filed on the form applicable to such
registration; (B) obtain an opinion of counsel to Company in customary form and
covering such matters, of the type customarily covered by such opinions, as the
Manager, if any, and as Holder may reasonably request; (C) obtain a "cold
comfort" letter or letters from the independent certified public accountants of
Company addressed to the underwriters, if any, thereof, dated (i) the effective
date of such registration statement and (ii) the date of the closing under the
underwriting agreement relating thereto, such letter or letters to be in
customary form and covering such matters of the type customarily covered, from
time to time, by letters of such type and such other financial matters as the
Manager, if any, may reasonably request; (D) deliver such documents and
certificates, including officers' certificates, as may be reasonably requested
by the indemnitees, if any, therefor and the Manager, if any, thereof to
evidence the accuracy of the representations and warranties made pursuant to
clause (A) above and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement entered
into by Company, and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in this
Agreement;
4.9 permit Holder to participate in the preparation of such
registration statement and include therein material acceptable to the Company
and its counsel, furnished to Company in writing which, in the reasonable
judgment of Holder and its counsel, is required to be included therein;
4.10 use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement by the SEC or any
state securities authority as promptly as possible; and
4.11 cooperate with Holder to facilitate the timely preparation and
delivery of certificates representing Company Common Stock to be sold and enable
certificates for such
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Company Common Stock to be issued for such number of shares of Company Common
Stock and registered in such names as Holder may reasonably request.
5. INDEMNIFICATION.
5.1 Company shall indemnify and hold harmless Holder, each of its
directors, officers and agents, each underwriter (as defined in the Securities
Act) of Registrable Securities, if any, and each person who controls (within the
meaning of Section 15 of the Securities Act) Holder or any underwriter of the
Registrable Securities held by or issuable to Holder, against all claims,
losses, expenses, damages and liabilities, joint or several, including any of
the foregoing incurred in settlement of any proceeding, commenced or threatened,
(or actions in respect thereto) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document (including any related registration
statement, notification or the like) 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 not misleading,
or any violation by Company of any rule or regulation promulgated under the
Securities Act or any state securities law applicable to Company and relating to
action or inaction required of Company in connection with any such registration,
and shall reimburse Holder, each of its directors, officers and agents, each
such underwriter and each person who controls Holder or any such underwriter for
any reasonable legal and any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage, liability or
action, PROVIDED, HOWEVER, that Company shall not be liable in any such case to
the extent that any such claim, loss, damage or liability arises out of or is
based on any untrue statement or omission based upon written information
furnished to Company by Holder or such underwriter specifically for use therein.
The indemnity provided by this Section 5.1 shall be in addition to any liability
which Company may otherwise have.
5.2 Holder shall indemnify and hold harmless Company, each of its
directors and officers, each underwriter, if any, and each person who controls
Company or any of the underwriters within the meaning of the Securities Act,
against all claims, losses, expenses, damages and liabilities (or actions in
respect thereof) arising out of or based on 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 shall reimburse
Company or underwriters for any reasonable legal or any other expenses incurred
in connection with investigating, defending or settling any such claim, loss,
damage, liability or action, in each case to the extent, but 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 written information
pertaining to Holder, which is furnished in writing to Company by Holder
specifically for use therein.
5.3 If the indemnification provided for in this Section 5 is
unavailable to or insufficient to hold harmless an Indemnified Party (as defined
below) in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then Company and Holder shall contribute
to the amount paid or payable as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of Company on the one hand and Holder on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. Relative fault shall be determined by
reference to, among
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other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by Company on the one hand or Holder on the other and such
person's relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Company agrees that it would not
be just and equitable if contribution pursuant to this Section 5.3 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 5.3. The amount paid or payable by a party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this Section 5.3 shall include any legal or other expenses reasonably
incurred by such party in connection with investigating or, except as provided
in Section 5.4 hereof, defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. No person shall be required to
contribute to any settlement effected without its consent, which consent shall
not be unreasonably withheld. If, however, indemnification is available under
this Section 5, the indemnifying parties shall indemnify each indemnified party
to the fullest extent provided in Sections 5.1 to 5.3 hereof without regard to
the relative fault of such indemnifying party or indemnified party or any other
equitable considerations.
5.4 Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, unless the Indemnified Party in its reasonable judgment
determines that joint representation by counsel for the Indemnifying Party would
be inappropriate due to actual or potential differing interests between the
Indemnifying Party and the Indemnified Party in the conduct of the defense of
such action, in which case the Indemnified Party shall be entitled to be
represented by separate counsel selected by it, the reasonable fees and expenses
of which shall be borne by the Indemnifying Party, and provided further that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations hereunder, unless such failure
resulted in actual detriment to the Indemnifying Party. No Indemnifying Party,
in the defense of any such claim or litigation, shall, except with the consent
of each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation.
5.5 Notwithstanding the foregoing, to the extent that the provisions
on indemnification of the underwriters and their controlling persons contained
in the Underwriting Agreement in connection with an underwritten public offering
are in conflict with the foregoing provisions, the provisions in the
Underwriting Agreement shall control as to indemnification of the underwriters
and their controlling persons in the public offering.
5.6 Notwithstanding the foregoing, in no event shall Holder be liable
under this Section 5 for an amount exceeding the net proceeds received by Holder
from the sale of its Registrable Securities pursuant to the registration rights
granted to Holder hereunder.
6. INFORMATION BY HOLDER. Holder shall promptly furnish to Company such
information
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regarding Holder as Company may reasonably request and as shall be required in
connection with any registration referred to herein.
7. ELIGIBILITY FOR FORM S-3. Company agrees that, until its obligations
to effect registrations pursuant to this Agreement have been discharged and
Holder is able to make sales of Registrable Securities pursuant to Rule 145(d)
under the Securities Act without compliance with any of the provisions of
Rule 144 thereunder, Company shall remain eligible to register the Registrable
Securities on Form S-3.
8. RULE 144. Company agrees that, until its obligations to effect
registrations pursuant to this Agreement have been discharged and Holder is able
to make sales of Registrable Securities pursuant to Rule 145(d) under the
Securities Act without compliance with any of the provisions of Rule 144
thereunder, Company shall (A) comply with the requirements of Rule 144(c), as
such rule may be amended from time to time (or any similar rule or regulation
hereafter adopted by the SEC), regarding the availability of current public
information to the extent required to enable Holder to sell Registrable
Securities without registration under the Securities Act pursuant to Rule 144
(or any similar rule or regulation), and (B) furnish to Holder upon request a
written statement by Company that it has complied with the requirements of Rule
144(c) and of the Securities Act of the Securities Exchange Act of 1934, as
amended.
9. EXECUTION; AMENDMENTS. This Agreement may be executed in
counterparts, all of which shall constitute a single instrument. This Agreement
may be amended only by a writing signed by Holder and Company.
10. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by recognized overseas
air courier, telecopied (and confirmed by written letter mailed or delivered as
soon as practicable thereafter) or otherwise delivered by hand or by messenger,
addressed (i) if to Holder, at its address stated in or furnished pursuant to
the Reorganization Agreement or at such other address as Holder shall have
furnished to Company or (ii) if to Company, at its address stated in or
furnished pursuant to the Reorganization Agreement or at such other address as
Company shall have furnished to Holder. 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, when received if telecopied or, if
sent by a recognized overseas air courier, at the earlier of its receipt or
72 hours after the same has been deposited with such air courier.
11. This Agreement represents the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersedes any and all prior oral and written agreements, arrangements and
understandings between the parties hereto with respect to such subject matter;
and any provision hereof can be waived only by a written instrument making
specific reference to this Agreement signed by Company on the one hand, and
Holder on the other hand.
12. This Agreement shall be binding upon and shall inure to benefit of the
parties hereto and their respective successors.
13. The paragraph and section headings contained in this Agreement are for
general reference purposes only and shall not affect in any manner the meaning,
interpretation or construction of the terms or other provisions of this
Agreement.
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14. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of California applicable to contracts to
be made, executed, delivered and performed wholly within such state and, in any
case, without regard to the conflicts of law principles of such state.
15. If at any time subsequent to the date hereof, any provision of this
Agreement shall be held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this Agreement.
16. Company acknowledges that it would be impossible to determine the
amount of damages that would result form any breach by it of any of the
provisions of this Agreement and the remedy at law for any breach, or threatened
breach, of any such provisions would likely be inadequate and, accordingly,
agrees that Holder shall, in addition to any other rights or remedies which it
may have, be entitled to seek such equitable and injunctive relief as may be
available from any court of competent jurisdiction to compel specific
performance of, or restrain Company from violating any of, such provisions. In
connection with any action or proceeding for injunctive relief, Company hereby
waives the claim or defense that a remedy at law alone is adequate and agrees,
to the maximum extent permitted by law, to have such provision of this Agreement
specifically enforced against it, without the necessity of posting bond or other
security against it, and consents to the entry of injunctive relief against it
enjoining or restraining any breach or threatened breach of this Agreement.
17. Any controversy, dispute or claim arising out of or relating to this
Agreement or the breach hereof which cannot be settled by mutual agreement shall
finally be settled by a court of competent jurisdiction in Santa Clara County,
California.
18. The failure of any party at any time or times to require performance
of any provision hereof shall not affect the right at a later time to enforce
the same. No waiver by any party of any condition, and no breach of any
provision, term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
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Executed as of the date first above written.
COMPANY: C-CUBE MICROSYSTEMS INC.
By:
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Title:
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HOLDER: SAGEM INTERNATIONAL S.A.
By:
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Title:
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SAGEM S.A.
By:
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Title:
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IENA INTERNATIONAL S.A.
By:
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Title:
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TREGOR ELECTRONIQUE S.A.
By:
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Title:
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11