REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of this
22nd day of November, 1996, by and among ANALOGY, INC., an Oregon corporation
(the "Company"), and those other persons who are signatories hereto (each a
"Shareholder," and collectively, the "Shareholders").
RECITALS
WHEREAS, the Company, Analogy Acquisition Corporation, an Oregon
corporation and wholly owned subsidiary of the Company (the "Subsidiary"), and
Symmetry Design Systems, Inc., a California corporation ("Symmetry"), have
entered into an Agreement and Plan of Merger (the "Merger Agreement") dated as
of October 23, 1996, providing for the acquisition of Symmetry, by the Company
through a merger (the "Merger") of the Subsidiary into Symmetry with Symmetry
being the corporation surviving the Merger;
WHEREAS, the Shareholders upon consummation of the Merger will hold, and
will have the contractual right to acquire, shares of the issued and outstanding
common stock, no par value per share, of the Company (the "Common Stock");
WHEREAS, pursuant to employment agreements between Symmetry and certain
Shareholders to be entered into in accordance with the terms of the Merger
Agreement, such Shareholders have been issued warrants (the "Warrants") to
purchase shares of the Common Stock; and
WHEREAS, the parties to the Merger Agreement and the Shareholders desire
the Company to register the shares of Common Stock under the 1933 Act (as
hereafter defined) for resale by the Shareholders and the execution and delivery
of this Agreement by the Company is a condition precedent to the consummation of
the Merger.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the parties hereto agree, effective upon consummation of the Merger, as
follows:
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS.
(a) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"1933 Act"), and the automatic effectiveness or the declaration or ordering of
effectiveness of such registration statement or document.
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(b) The term "Registrable Securities" means (X) shares of Common
Stock beneficially owned by any Holder and acquired in connection with the
Merger, (Y) shares of Common Stock which any Holder may have a contractual right
to acquire in connection with the Merger, and (Z) shares of Common Stock
issuable upon exercise of the Warrants, but shall not include any Common Stock
(i) which has been effectively registered under the 1933 Act and disposed of in
accordance with a registration statement covering such security, (ii) which has
been distributed to the public pursuant to Rule 144 under the 1933 Act; or (iii)
or which has been effectively registered pursuant to a registration statement on
Form S-8.
(c) The term "Holder" means (i) a Shareholder and (ii) a transferee
of Registrable Securities from a Holder acquired in a transfer which complies
with Section 1.7 of this Agreement; provided, however, that no Shareholder shall
be entitled to the benefits of Section 1.2 hereof if that Shareholder has failed
to execute a copy of this Agreement as provided in Section 3.8 of this
Agreement.
1.2 REGISTRATION.
(a) One hundred eighty (180) days following the consummation of the
Merger (the "Effective Date"), the Company shall prepare and file with the
Securities and Exchange Commission (the "Commission" or "SEC") a registration
statement (a "Registration Statement") in order to register with the Commission
the sale by the Holders, from time to time, of the Registrable Securities
through The Nasdaq Stock Market or the facilities of any national securities
exchange on which the Common Stock is then traded, or in privately-negotiated
transactions. The Company shall use its best efforts to cause the Registration
Statement (or any amendments thereto) to become effective.
(b) The Company shall use its reasonable best efforts to prepare and
file with the Commission (i) such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith, (ii) such periodic
reports as may be required pursuant to rules promulgated under the 1933 Act or
the Securities and Exchange Act of 1934, as amended (the "1934 Act"), and (iii)
such other filings required by the Commission, as may be necessary to keep the
Registration Statement continuously effective until such time as all the
Registrable Securities held or entitled to be held by each Holder may be sold in
a single transaction in reliance on Rule 144 promulgated under the 1933 Act
("Rule 144") or such time as all Registrable Securities have been disposed of in
accordance with a Registration Statement or have been distributed to the public
pursuant to Rule 144; PROVIDED, HOWEVER, that the Company may suspend use of the
prospectus (or delay the filing of any amendments to the Registration Statement)
if the Company has been advised by legal counsel that such use or filing would
require the disclosure of a material transaction or other matter and the Company
determines reasonably and in good faith, and so notifies the selling Holders,
that such disclosure would have a material adverse effect on the Company until
such time as the Company subsequently authorizes use of the prospectus (each
such period, a "Suspension Period"). Upon the declaration of a Suspension
Period, the Company shall use its reasonable best efforts to end the Suspension
Period as quickly as possible. Notwithstanding the foregoing, the Company shall
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not allow a Suspension Period to continue for more than 60 days. Furthermore,
during any 12-month period, the Company shall not under any circumstances be
entitled to exercise its rights under this Section 1.2(b) to effect a Suspension
Period more than (i) two (2) times with respect to any Suspension Period that
continues in excess of seven (7) days, and (ii) more than six (6) times in the
aggregate. Each Holder agrees that such Holder will not sell any Registrable
Securities pursuant to the prospectus during the period beginning on the date
the Company gives such Holder notice of the suspension of the prospectus and
ending on the date the Company gives such Holder notice of the termination of
the Suspension Period.
(c) The Company shall file documents required of the Company for
normal blue sky clearance in states specified in writing by each Holder.
(d) The Company shall furnish to the Holders such reasonable number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus), any documents incorporated by reference into the
registration statement and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(e) The Company shall promptly notify each Holder of Registrable
Securities covered by the Registration Statement that the use of the
Registration Statement and the prospectus related thereto must be suspended due
to the happening of any event as a result of which the prospectus included in
the Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing and promptly file such amendments and supplements
which may be required pursuant to Section 1.2(b) on account of such event and
use its best efforts to cause each such amendment and supplement to become
effective: PROVIDED, HOWEVER, that any such period during which the Registration
Statement or related prospectus is suspended shall count as a Suspension Period
under Section 1.2(b) hereof.
(f) The Company shall file a Notification for Listing of Additional
Shares with The Nasdaq Stock Market, and pay any fees required in connection
with such filing.
1.3 FURNISHING OF INFORMATION.
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that the selling Holders shall
promptly furnish to the Company such information regarding themselves or the
Registrable Securities held by them, and the intended method of disposition of
such securities, as shall be reasonably requested by the Company in order to
effect the registration of their Registrable Securities. Each Holder agrees
that it will not effect any disposition of its Registrable Securities that would
constitute a sale within the meaning of the 1933 Act except in compliance with
the 1933 Act (including a disposition which qualifies for an exemption from
registration thereunder).
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1.4 EXPENSES.
All expenses incurred in connection with a registration pursuant to
Section 1.2 of this Agreement (including all amendments thereto), including
(without limitation) all registration, printing and accounting fees, fees and
disbursements of counsel for the Company shall be borne by the Company;
provided, however, that underwriting discounts and commissions, and stock
transfer taxes, if any, relating to the Registrable Securities and the fees and
disbursements of counsel for the selling Holders, if any, shall be borne and
paid by the selling Holders of such Registrable Securities.
1.5 INDEMNIFICATION.
In connection with any Registrable Securities included in a
registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each selling Holder
against any losses, claims, damages or liabilities to which they may become
subject under the 1933 Act, the 1934 Act, or any state securities law or any
rule or regulation promulgated under the 1933 Act, the 1934 Act or any state
securities law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
of a material fact contained in such registration statement, or the omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading (each a "Violation"), unless such untrue
statement or omission was contained in or omitted from a preliminary prospectus
and corrected in a final or amended prospectus of which notice was given and
delivery made to the selling Holder and the seller failed to deliver a copy of
the final or amended prospectus at or prior to the confirmation of the same of
the registered securities to the persons asserting any such loss, claim, damage
or liability in the case where such delivery is required by the 1933 Act. The
Company will reimburse each such selling Holder for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. The indemnity agreement
contained in this Section 1.5(a) shall not apply to amounts paid in settlement
of any loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable to a Holder in any such case for any
such loss, claim, damage, liability or action 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 inclusion in such registration
statement by or on behalf of such Holder.
(b) Each selling Holder, severally and not jointly, will indemnify
and hold harmless the Company, each of its directors, each of its officers who
sign the registration statement and any other selling Holder selling securities
in such registration against any losses, claims, damages or liabilities, to
which they may become subject under the 1933 Act, the 1934 Act or any state
securities law or any rule or regulation promulgated under the 1933 Act, the
1934 Act or any state securities law, insofar as such losses, claims, damages or
liabilities (or
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actions in respect thereof) arise out of or are based upon any Violation, in
each ease to the extent (and only to the extent) that such Violation occurs as a
result of reliance by the Company upon and in conformity with written
information furnished to the Company by or on behalf of such Holder expressly
for inclusion in such registration statement or the breach by the selling Holder
of its obligations contained in this Agreement; and each such selling Holder
will reimburse any legal or other expenses reasonably incurred by (i) the
Company or any such director, officer, or (ii) other selling Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action. The indemnity agreement contained in this Section 1.5(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
selling Holder (which consent shall not be unreasonably withheld). In no event
shall the liability of any selling Holder for indemnification under this Section
1.5(b) exceed the proceeds received by such selling Holder from the sale of
registered securities under the applicable registration statement.
(c) Each indemnified party or parties shall give reasonably prompt
notice to each indemnifying party or parties of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party or parties shall not relieve it or
them from any liability which it or they may have under this indemnity
agreement, except to the extent that the indemnifying party is materially
prejudiced by such failure to give notice. If the indemnifying party or parties
so elects within a reasonable time after receipt of such notice, the
indemnifying party or parties may assume the defense of such action or
proceeding at such indemnifying party's or parties' expense with counsel chosen
by the indemnifying party or parties and approved by the indemnified party
defendant in such action or proceeding, which approval shall not be unreasonably
withheld; provided, however, that if such indemnified party or parties determine
in good faith that a conflict of interest exists and that therefore it is
advisable for such indemnified party or parties to be represented by separate
counsel or that, upon advice of counsel, there may be legal defenses available
to it or them which are different from or in addition to those available to the
indemnifying party, then the indemnifying party or parties shall not be entitled
to assume such defense and the indemnified party or parties shall be entitled to
separate counsel at the indemnifying party's or parties' expense. If an
indemnifying party or parties is not so entitled to assume the defense of such
action or does not assume such defense, after having received the notice
referred to in the first sentence of this Section 1.5(c), the indemnifying party
or parties will pay the reasonable fees and expenses of not more than one
separate counsel for all indemnified parties. Notwithstanding the foregoing,
the indemnifying party shall not be obligated to pay the reasonable fees and
expenses of more than one counsel for the indemnified parties with respect to
any claim. No indemnifying party or parties will be liable for any settlement
effected without the written consent of such indemnifying party or parties,
which consent shall not be unreasonably withheld. If an indemnifying party is
entitled to assume, and assumes, the defense of such action or proceeding in
accordance with this Section 1.5(c), such indemnifying party or parties shall
not, except as otherwise provided in this Section 1.5(c), be liable for any fees
and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action or proceeding.
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(d) If the indemnification provided for in this Section 1.5 is
unavailable to or insufficient to hold harmless a party that would have been an
indemnified party under this Section 1.5 in respect of any claims referred to
herein, then each party that would have been an indemnifying party hereunder
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such claims in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and such indemnified party on the other in
connection with the action, statement or omission which resulted in such claims,
as well as any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged omission to state a material fact relates to information supplied by the
indemnifying party or such indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Notwithstanding the foregoing provisions of this
Section 1.5(d), a selling Holder of registered securities shall not as an
indemnifying party be required to contribute any amount in excess of (i) the
amount by which the total price at which the registered securities sold by such
indemnifying party were offered to the public exceeds (ii) the amount of any
damages which such indemnifying party has otherwise been required to pay by
reason of such action, untrue or alleged untrue statement or omission or alleged
omission. The Company and each selling Holder of registered securities agrees
that it would not be just and equitable if contribution pursuant to this
Section 1.5(d) 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 1.5(d). The amount paid or payable by an indemnified
party as a result of the claims referred to above in this Section 1.5(d) shall
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigation or defending any such action or claim.
(e) Without the prior written consent of the indemnified party, no
indemnifying party shall consent to entry or 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 of all
liability in respect of such claim.
(f) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of fraudulent misrepresentation within the meaning
of such Section 11(f).
1.6 AVAILABILITY OF RULE 144.
With a view to making available to the Holders the benefits of Rule
144 promulgated under the 1933 Act and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of the Company to the
public without registration the Company agrees to use its best efforts:
(a) to make and keep public information available, as those terms are
understood and defined in Rule 144;
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(b) to file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act; and
(c) to furnish to any Holder so long as the Holder owns any
Registrable Securities or Warrants forthwith upon written request (i) a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144, the 1933 Act and the 1934 Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
to avail the Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration.
1.7 TRANSFER OF REGISTRATION RIGHTS.
The registration rights of a Holder under this Agreement may be
transferred to any transferee who acquires at least 66-2/3% of the shares of
Common Stock originally acquired by such Holder; provided, however, that the
Company is given written notice by the transferor at the time of such transfer
stating the name and address of the transferee and identifying the securities
with respect to which the rights under this Agreement are being assigned and
provided further that the transferee agrees in writing to acquire and hold such
securities subject to the provisions of this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS.
As an inducement to the Company to issue the Registrable Securities to
each Shareholder, each Shareholder represents and warrants to the Company as
follows:
2.1 NO DISTRIBUTION.
Each Shareholder is acquiring the Registrable Securities for its own
account with no view to any distribution thereof in violation of the 1933 Act.
Each Shareholder understands that since the Registrable Securities have not been
registered under the 1933 Act, the Registrable Securities must be held
indefinitely unless they are subsequently registered under the 1933 Act or an
exemption from such registration is available. Each Shareholder acknowledges
that the Company is under no obligation to register under the 1933 Act any sale
of the Registrable Securities or to comply with any provisions which would
entitle any such sale to any exemption from registration, except as provided in
this Agreement. Each Shareholder is fully familiar with Rule 144.
2.2 INFORMATION MADE AVAILABLE.
Each Shareholder has received and reviewed, or had the opportunity to
receive and review, the Company's most recent Annual Report to Shareholders, it
most recent Annual Report on Form 10-K and its most recent Quarterly Report on
Form 10-Q. In addition, each Shareholder has had the opportunity to discuss the
Company's business, management and
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financial affairs with the Company's management. Each Shareholder has such
knowledge and experience in financial matters that such Shareholder is capable
of evaluating the merits and risks of an investment in the Registrable
Securities. Each Shareholder's financial condition is such that such
Shareholder is able to bear all economic risks of investment in the Registrable
Securities, including the risks of holding the Registrable Securities for an
indefinite period of time.
2.3 PROSPECTUS REQUIREMENTS.
Each Shareholder hereby covenants with the Company that it will
promptly advise the Company of any changes in the information concerning each
Shareholder contained in the registration statement or any other registration
statement required by this Agreement and that such Shareholder will not make any
sale of Registrable Securities pursuant to any registration statement without
complying with the prospectus delivery requirements of the 1933 Act. Each
Shareholder acknowledges that occasionally there may be times (as described in
Section 1.2(b) hereof) when the Company must temporarily suspend the use of the
prospectus forming a part of any such registration statement until such time as
an amendment to such registration statement has been filed by the Company and
declared effective by the SEC, the relevant prospectus supplemented by the
Company or until such time as the Company has filed an appropriate report with
the SEC pursuant to the 1934 Act. During any period in which sales are
suspended, each Shareholder agrees not to sell any such Registrable Securities
pursuant to any such prospectus.
3. MISCELLANEOUS.
3.1 NOTICES.
All notices, requests, demands and other communications which are
required to be or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered in person or upon receipt
when transmitted by telecopy or after dispatch by certified or registered first
class mail, postage prepaid, return receipt requested, or by any recognized
express mail service, to the party to whom the same is so given or made:
If to the Company, to: Analogy, Inc.
9205 S.W. Gemini Drive
Beaverton, Oregon 97008
Attention: Nic Herriges
Telecopy: (503) 643-3361
or to such other person at such other place as the Company shall designate to
the Shareholders in writing; and
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With a copy to: Brenda L. Meltebeke, Esquire
Ater Wynne Hewitt Dodson & Skerritt, LLP
222 S.W. Columbia, Suite 1800
Portland, Oregon 97201
Telecopy: (503) 226-0079
If to a Shareholder, to the address set forth on the signature pages
hereto, or to such other address subsequently provided by such Shareholder to
the Company, and in each case with a copy to James C. Kitch, Esquire, Cooley
Godward LLP, Five Palo Alto Square, 3000 El Camino Real, Palo Alto, California
94306-2155; Telecopy: (415) 857-0663.
3.2 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements, representations, warranties,
statements, promises, and understandings, whether written or oral, with respect
to the subject matter hereof, and cannot be changed or terminated orally.
3.3 HEADINGS: CERTAIN TERMS.
The section and other headings contained in this Agreement are for
reference purposes only and shall not be deemed to be part of this Agreement or
to affect the meaning or interpretation of this Agreement.
3.4 GOVERNING LAW.
All questions concerning the construction, validity and interpretation
of this Agreement will be governed by the laws of the State of Oregon.
3.5 SEVERABILITY.
If any term or provision of this Agreement shall to any extent be
invalid or unenforceable, the remainder of this Agreement shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law. Upon the determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties shall negotiate in good faith to modify this Agreement so as to
effect their original intent as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
3.6 AMENDMENTS AND WAIVERS.
Except as otherwise provided herein, the provisions of this Agreement
may be amended or waived only upon the prior written consent of the Company and
the Holders of at least 50% of the Registrable Securities and no such amendment
may disproportionately act to
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the detriment of any particular Holder, without that Holder's consent; provided,
however, that in no event shall any such amendment or waiver grant the Company
the right, or otherwise permit the Company, to postpone its obligation to file a
registration statement pursuant to the provisions of Section 1.2(a) of this
Agreement beyond that date which is one hundred fifty (150) days after the
required filing date set forth in such Section 1.2(a).
3.7 SECTION REFERENCES.
All references contained in this Agreement to any section number are
references to sections of this Agreement unless otherwise specifically stated.
3.8 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which, when executed, shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
3.9 ADDITIONAL SHAREHOLDERS.
Anytime prior to the date which is 30 days prior to the filing of the
Registration Statement, any person or entity who owned shares of the common
stock of Symmetry as of the date of the Merger Agreement and who has not yet
executed a counterpart of this Agreement may execute a counterpart of this
Agreement and, by executing a counterpart of this Agreement, shall thereupon
become a party to this Agreement and shall have the rights and obligations of a
Shareholder hereunder.
3.10 BINDING EFFECT.
This Agreement shall be binding on all successors and assigns of the
Company, whether by merger, reorganization, sale of assets or otherwise.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement, or have
caused this Agreement to be signed on their behalf by an officer or
representative thereunder duly authorized, on the respective dates states below.
ANALOGY, INC.
By: /s/ Gary Arnold
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Gary Arnold, President and Chief
Executive Officer
SHAREHOLDERS:
Name: /s/ Alan B. Grebene
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Printed Name: Alan B. Grebene
Address: 15479 BELNAP WAY
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SARATOGA CA 95070
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Name: /s/ Martin Walker
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Printed Name: Martin G. Walker
Address: 1820 PORTOCA RD
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WOODSIDE, CA 94062
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Name: /s/ Chenmin Hu
---------------------------------
Printed Name: Chenmin Hu
Address: Chenmin Hu
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3316 Allen Way
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Santa Clara, CA 95051
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Name: /s/ Xinping He
---------------------------------
Printed Name: Xinping He
Address: 4370 ALBANY DR. APT 3
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SAN JOSE, CA 95129
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Name: /s/ Yu Liu
---------------------------------
Printed Name: Yu Liu
Address: 370 W. OLIVE AVE. #15
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SUNNYVALE, CA 94086
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Name: /s/ Andrew L. Hughes
---------------------------------
Printed Name: Andrew L. Hughes
Address: 40227 Laiolo Rd
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Fremont, CA 94538
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Name: /s/ Wenge Wu
---------------------------------
Printed Name: Wenge Wu
Address: 719 Daffodil St. #A
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Sunnyvale, CA 94086
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Name: /s/ Zheng Shi
---------------------------------
Printed Name: Zheng Shi
Address: 210 Easy St., #25
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MTN VIEW, CA 94043
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Name:
---------------------------------
Printed Name: Jeffrey D. Saper
Address:
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Name: /s/ John A. Wilson
---------------------------------
Printed Name: John A. Wilson
Address:
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Name: /s/ Qing Chang
---------------------------------
Printed Name: Qing Chang
Address: 611 Gail Avenue, Apt. C
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Sunnyvale, CA 94086
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Name: /s/ E-Hui Xu
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Printed Name: E-Hui Xu
Address: 575 S. Rengstorff Ave. #72
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Mountain View, CA 94040
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