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Exhibit 4.2
JTS CORPORATION
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is entered into as of the ___ day ___________, 1996, by and among
JTS Corporation, a Delaware corporation (the "Company") and the persons listed
on the attached Schedule A who become signatories to this Agreement
(collectively referred to hereinafter as the "Investors" and each individually
as an "Investor") who hereby amend and restate that certain Registration Rights
Agreement, dated as of February 3, 1995, by and among the Company and certain
Investors, as amended (the "Prior Agreement").
RECITALS
WHEREAS, the Company and Atari Corporation, a Nevada corporation
("Atari"), are parties to that certain Amended and Restated Agreement and Plan
of Reorganization (the "Merger Agreement"), dated as of April 8, 1996, pursuant
to which Atari will merger with and into the Company (the "Merger");
WHEREAS, it is a condition to the closing of the Merger that certain
affiliates of Atari will be extended the registration rights set forth herein
with respect to the shares of Company common stock, $.001 par value ("Common
Stock"), issued to such affiliates in the Merger; and
WHEREAS, Section 14(b) of the Prior Agreement provides that the Prior
Agreement may be amended with the consent of the Holders of at least two-thirds
of the Registrable Securities voting as a class;
NOW THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Merger Agreement the parties mutually agree that the Prior
Agreement is amended and restated to read in full as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"AFFILIATE" of any person or entity shall mean any other
person or entity which, directly or indirectly, controls, is controlled by or is
under common control with such person or entity.
"COMMISSION" shall mean the Securities and Exchange Commission
of the United States or any other U.S. federal agency at the time administering
the Securities Act.
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"HOLDER" shall mean each of the Investors (and their
transferees as permitted by Section 11) holding Registrable Securities or
securities convertible into or exercisable for Registrable Securities.
"INITIATING HOLDERS" shall mean Holders who in the aggregate
hold at least twenty percent (20%) of the Registrable Securities and join in a
request referred to in Section 2(a).
"OTHER HOLDERS" shall mean holders of Company securities,
other than Holders, proposing to distribute their securities pursuant to a
registration under this Agreement.
"REGISTRABLE SECURITIES" means (i) the Common Stock issued or
issuable upon conversion of the Company's Series A Preferred Stock, (ii) the
Common Stock issued or issuable upon conversion of the JTS Shares and upon
exercise of the JTS Warrant (as such terms are defined in that certain Stock
Purchase Agreement, dated April 4, 1996, by and between the Company and
Lunenburg S.A.), (iii) the Common Stock to be issued to certain affiliates of
Atari identified on Schedule A in connection with the Merger, (iv) the Common
Stock issued or issuable upon exercise of that certain Warrant to Purchase
Shares of Common Stock dated March 24, 1995 issued by the Company to Venture
Lending & Leasing, Inc. (the "Warrant Stock"), solely to the extent required to
provide the registration rights set forth in Section 3 below to Venture Lending
& Leasing, Inc. as a Holder with respect to the Warrant Stock, (v) any shares of
Common Stock issued or issuable in respect of such Common Stock upon any stock
split, stock dividend, recapitalization, or similar event, and (vi) Registrable
Shares (as such term is defined in that certain Warrant to Purchase Shares of
Series A Preferred Stock, dated as of February 13, 1996, issued by the Company
to Atari). Shares of Common Stock or other securities shall only be treated as
Registrable Securities if they have not been (A) sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction, or (B) sold in a single transaction exempt from the registration
and prospectus delivery requirements of the Securities Act so that all transfer
restrictions and restrictive legends with respect thereto are removed upon the
consummation of such sale."
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to
a registration 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" shall mean all expenses, excluding
Selling Expenses (as defined below) except as otherwise stated below, incurred
by the Company in complying with Sections 2, 3 and 4 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company and reasonable
fees and disbursements of one counsel for the Holders selected by the Holders
and approved by the Company (which consent shall not be unreasonably withheld),
Blue Sky fees and expenses and the expense of any special audits incident to or
required by any such registration (but excluding the compensation of regular
employees of the Company which shall be paid in any event by the Company).
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"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder, or any
similar United States federal statute.
"SELLING EXPENSES" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by Holders. Such expenses shall be borne by Holders.
"SELLING HOLDERS" shall mean each Holder who holds Registrable
Securities included in a registration statement under the Securities Act
pursuant to this Agreement.
2. REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. In case the Company shall
receive from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to not less than ten
percent (10%) of the then-outstanding Registrable Securities with an anticipated
aggregate offering price, net of any underwriting discounts and commissions, in
excess of $5,000,000 (a "Registration Notice"), the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts
to effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable Blue Sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder joining in such request as are specified in a written
request received by the Company from the Holder within twenty (20) days after
receipt of such written notice from the Company. Notwithstanding the foregoing,
the Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 2:
(A) In any particular jurisdiction in
which the Company would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance unless the
Company is already subject to service in such jurisdiction and except as may be
required by the Securities Act;
(B) During the period starting with the
date sixty (60) days prior to the Company's estimated date of filing of, and
ending on the date six (6) months immediately following the effective date of,
any registration statement pertaining to securities of the Company sold by the
Company (other than a registration of securities in a Rule 145 transaction or
with respect to an employee benefit plan), provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective;
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(C) After the Company has effected
three (3) registrations pursuant to this paragraph 2, and such registrations
have been declared or ordered effective; or
(D) If the Company shall furnish to
such Holders a certificate signed by the President of the Company stating that
in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for a registration statement to
be filed in the near future, then the Company's obligation to use its best
efforts to register, qualify or comply under this Section 2 shall be deferred
for a period not to exceed ninety (90) days from the date of receipt of written
request from the Initiating Holders, provided, however, that the Company shall
not utilize this right more than once in any twelve (12) month period.
Subject to the foregoing clauses (A) through (D), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable, after receipt of the request
or requests of the Initiating Holders.
(b) UNDERWRITING. In the event that a registration pursuant to
this Section 2 is for a registered public offering involving an underwriting,
the Company shall so advise the Holders as part of the notice given pursuant to
Section 2(a)(i). In such event, the right of any Holder to registration pursuant
to Section 2 shall be conditioned upon such Holder's participation in the
underwriting arrangements required by this Section 2, and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein. The Company shall (together with
all Holders and Other Holders proposing to distribute their securities through
such underwriting) enter into an underwriting agreement in customary form with
the managing underwriter selected for such underwriting by the Company, but
subject to the reasonable approval of the Holders holding a majority of the
Registrable Securities held by all Holders participating in the Offering.
Notwithstanding any other provision of this Section 2, if the managing
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all Holders and Other Holders, and the number of shares
that may be included in the registration and underwriting shall be allocated,
FIRST, among all participating Holders in proportion, as nearly as practicable,
to the respective amounts of Registrable Securities held by such Holders at the
time of filing the registration statement and, SECOND, among any Other Holders
in proportion to the number of shares proposed to be included in such
registration by such Other Holders. No Registrable Securities or other
securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. To facilitate the
allocation of shares in accordance with the above provisions, the Company or the
underwriters may round the number of shares allocated to any holder to the
nearest one hundred (100) shares. If any Holder or Other Holder disapproves of
the terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company, the managing underwriter and the Initiating
Holders. The Registrable Securities and/or other securities so withdrawn shall
also be withdrawn from registration and shall not be transferred in a public
distribution prior to one hundred eighty (180) days after the effective date of
the registration statement relating thereto, or such other shorter period of
time as the underwriters may require pursuant to Section 12.
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3. COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any time or from time to
time the Company shall determine to register any of its securities, either for
its own account or the account of a security holder or holders, other than (i) a
registration relating solely to stock option or other employee benefit plans or
(ii) a registration relating solely to a Commission Rule 145 transaction, the
Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any
related qualification under Blue Sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made within twenty (20) days after receipt of such
written notice from the Company, by any Holder.
(b) UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 3(a)(i). In such event the right of any Holder to
registration pursuant to this Section 3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall, together with the
Company and Other Holders, enter into an underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 3, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit the Registrable
Securities and other securities to be included in such registration. The Company
shall so advise all Holders and Other Holders, and the number of shares that may
be included in the registration and underwriting shall be allocated, FIRST, to
the Company (if the registration has been initiated by the Company) or to such
Other Holders as have initiated such registration, SECOND, among all the
participating Holders in proportion to the respective amounts of Registrable
Securities held by such Holders at the time of filing of the registration
statement, and, THIRD, among the Other Holders (other than those shares included
in the registration under "FIRST" above, if applicable) in proportion to the
number of shares proposed to be included in such registration by such Other
Holders; provided, however, that in a registered public offering, no less than
twenty-five percent (25%) of the number of shares that may be included in such
offering shall be allocated among the Holders of Registrable Securities. To
facilitate the allocation of shares in accordance with the above provisions, the
Company may round the number of shares allocated to any Holder or Other Holder
to the nearest one hundred (100) shares. If any Holder or Other Holder
disapproves of the terms of any such underwriting, such person may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration, and shall not be transferred in a public
distribution prior to one hundred eighty (180) days after the effective date of
the registration statement relating thereto, or such other shorter period of
time as the underwriters may require pursuant to Section 12.
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(c) RIGHT TO TERMINATE REGISTRATION. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 3 prior to the effectiveness of such registration whether or not any
Holder has elected to include Registrable Securities in such registration;
provided, however, if the Holders elect to use one of their demand registration
rights, pursuant to Section 2 hereof, then such registration shall be governed
by Section 2 and it shall not be terminated.
4. REGISTRATION ON FORM S-3.
(a) REQUEST FOR REGISTRATION. If at any time or from time to
time any Holder or Holders request that the Company file a registration
statement on Form S-3 (or any successor form to Form S-3) for a public offering
of shares of the Registrable Securities with a reasonably anticipated aggregate
price to the public of at least $500,000, and the Company is a registrant
entitled to use Form S-3 to register the Registrable Securities for such an
offering, the Company shall use its best efforts to cause such Registrable
Securities to be registered for the offering on such form and to cause such
Registrable Securities to be qualified in such jurisdictions as the Holder or
Holders may reasonably request. The substantive provisions of Section 2(b) shall
be applicable to each such registration initiated under this Section 4 involving
an underwriting.
(b) LIMITATIONS. Notwithstanding the foregoing, the Company
shall not be obligated to take any action pursuant to this Section 4:
(i) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(ii) if the Company, within ten (10) days of the
receipt of the request of the Initiating Holders requesting registration under
this Section 4, gives notice of its bona fide intention to effect the filing of
a registration statement with the Commission within ninety (90) days of receipt
of such request (other than with respect to a registration statement relating to
a Rule 145 transaction, an offering solely to employees or any other
registration which is not appropriate for the registration of Registrable
Securities);
(iii) within a six (6) month period immediately
following the effective date of any registration statement pertaining to
securities of the Company (other than a registration of securities in a Rule 145
transaction or with respect to a stock option or other employee benefit plan);
(iv) if the Company shall furnish to such Holder
a certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its stockholders for registration statements to be filed in the
near future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed sixty (60)
days from the
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receipt of the request to file such registration by such Holder; provided,
however, that the Company shall not utilize this right more than once in any
twelve (12) month period.
5. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date hereof, the Company will not, without the prior written consent of holders
of at least eighty percent (80%) of the then outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which allows such holder or prospective holder of any securities
of the Company to include such securities in any registration filed under
Sections 2, 3 or 4 hereof, unless, under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will not
diminish the amount of Registrable Securities which are included.
6. EXPENSES OF REGISTRATION.
(a) REGISTRATION EXPENSES. The Company shall bear all
Registration Expenses incurred in connection with all registrations pursuant to
Sections 2, 3 and 4. In the event any Initiating Holders withdraw a Registration
Notice, abandon a registration statement or, following an effective registration
pursuant to Section 2 hereof, does not sell Registrable Securities, then all
Registration Expenses in respect of such Registration Notice shall be borne, at
the Initiating Holders' option, either by the Initiating Holders or by the
Company (in which case, if borne by the Company, such withdrawn or abandoned
registration shall be deemed to be an effective registration for purposes of
Section 2(a)(ii)(D) hereof).
(b) SELLING EXPENSES. Unless otherwise stated, all Selling
Expenses relating to securities registered on behalf of the Holders and Other
Holders shall be borne by the Holders and Other Holders pro rata on the basis of
the number of shares so registered.
7. REGISTRATION AND QUALIFICATION. If and whenever the Company
is required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act pursuant to this Agreement, the
Company will as promptly as is practicable:
(a) prepare and file with the Commission, as soon as
practicable, and use its best efforts to cause to become effective, a
registration statement under the Securities Act relating to the Registrable
Securities to be offered on such form as the Initiating Holders, or if not filed
pursuant to Section 2 or Section 4 hereof, the Company, determines and for which
the Company then qualifies;
(b) prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities
until the earlier of such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition set forth in
such registration statement or the expiration of ninety (90) days after such
registration statement becomes effective; provided that such ninety (90) day
period shall be extended in the case of a
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registration pursuant to Section 2 hereof for such number of days that equals
the number of days elapsing from (i) the date the written notice contemplated by
Section 7(f) hereof is given by the Company to (ii) the date on which the
Company delivers to the Selling Holders the supplement or amendment contemplated
by Section 7(f) hereof;
(c) furnish to the Selling Holders and to any underwriter
of Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included in
such registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the Securities Act,
such documents incorporated by reference in such registration statement or
prospectus, and such other documents, as the Selling Holders or such underwriter
may reasonably request;
(d) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of such registration statement at the
earliest possible moment;
(e) if requested by an Initiating Holder, (i) furnish to
each Selling Holder an opinion of counsel for the Company addressed to each
Selling Holder and dated the date of the closing under the underwriting
agreement (if any) (or if such offering is not underwritten, dated the effective
date of the registration statement), and (ii) use its best efforts to furnish to
each Selling Holder a "comfort" or "special procedures" letter addressed to each
Selling Holder and signed by the independent public accountants who have audited
the Company's financial statements included in such registration statement, in
each such case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and such other
matters as the Selling Holders may reasonably request and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements;
(f) immediately notify the Selling Holders in writing (i)
at any time when a prospectus relating to a registration hereunder is required
to be delivered under the Securities Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state 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 (ii) of any request by the Commission or any other regulatory
body or other body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and in
either such case (i) or (ii) at the request of a Selling Holder prepare and
furnish to such Selling Holders a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so 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;
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(g) use its best efforts to list all such Registrable
Securities covered by such registration statement on each securities exchange
and inter-dealer quotation system on which a class of common equity securities
of the Company is then listed, and to pay all fees and expenses in connection
therewith; and
(h) upon the transfer of shares by a Selling Holder in
connection with a registration hereunder, furnish unlegended certificates
representing ownership of the Registrable Securities being sought in such
denominations as shall be requested by the Selling Holders or the underwriters.
8. INDEMNIFICATION.
(a) BY COMPANY. The Company 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, qualification or compliance has been effected pursuant to
this Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, 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,
qualification or compliance, 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, or any violation by the Company of the Securities Act or any
rule or regulation promulgated under the Securities Act applicable to the
Company in connection with any such registration, qualification or compliance,
and the Company will reimburse each such Holder, each of its officers, directors
and partners, each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, 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 the
Company will not be liable in any such case to the extent that any 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 the Company by an
instrument duly executed by such Holder, controlling person or underwriter and
stated to be specifically for use therein. If the Holders are represented by
counsel other than counsel for the Company, the Company will not be obligated
under this Section 8(a) to reimburse legal fees and expenses of more than one
separate counsel for Holders.
(b) BY HOLDERS. Each Selling Holder will indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other Selling Holder, against all claims, losses,
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
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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 the Company, such Selling Holders, such directors, officers,
underwriters 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, 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
furnished to the Company by an instrument duly executed by such Selling Holder
and stated to be specifically for use therein. Notwithstanding the foregoing,
the liability of each Selling Holder under this subsection (b) shall be limited
in an amount equal to the net proceeds of the shares sold by such Selling
Holder, unless such liability arises out of or is based on willful misconduct by
such Selling Holder.
(c) PROCEDURE FOR INDEMNIFICATION. Each party indemnified
under paragraph (a) or (b) of this Section 8 (the "Indemnified Party") shall,
promptly after receipt of notice of any claim or the commencement of any action
against such Indemnified Party in respect of which indemnity may be sought,
notify the party required to provide indemnification (the "Indemnifying Party")
in writing of the claim or the commencement thereof; provided that the failure
of the Indemnified Party to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which it may have to an Indemnified Party
on account of the indemnity agreement contained in paragraph (a) or (b) of this
Section 8, unless the Indemnifying Party was materially prejudiced by such
failure, and in no event shall relieve the Indemnifying Party from any other
liability which it may have to such Indemnified Party. If any such claim or
action shall be brought against an Indemnified Party, it shall notify the
Indemnifying Party thereof and the Indemnifying Party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable
(except to the extent the proviso to this sentence is applicable, in which event
it will be so liable) to the Indemnified Party under this Section 8 for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided that each Indemnified Party shall have the right to
employ separate counsel to represent it and assume its defense (in which case,
the Indemnifying Party shall not represent it) if (i) upon the advice of
counsel, the representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, or
(ii) in the event the Indemnifying Party has not assumed the defense thereof
within ten (10) days of receipt of notice of such claim or commencement of
action, and in which case the fees and expenses of one such separate counsel
shall be paid by the Indemnifying Party. If any Indemnified Party employs such
separate counsel it will not enter into any settlement agreement which is not
approved by the Indemnifying Party, such approval not to be unreasonably
withheld. If the Indemnifying Party so assumes the defense thereof, it may not
agree to any settlement of any such claim or action as the result of which any
remedy or relief, other than monetary damages for which the Indemnifying Party
shall be responsible hereunder, shall be
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applied to or against the Indemnified Party, without the prior written consent
of the Indemnified Party. In any action hereunder as to which the Indemnifying
Party has assumed the defense thereof with counsel reasonably satisfactory to
the Indemnified Party, the Indemnified Party shall continue to be entitled to
participate in the defense thereof, with counsel of its own choice, but, except
as set forth above, the Indemnifying Party shall not be obligated hereunder to
reimburse the Indemnified Party for the costs thereof.
If the indemnification provided for in this Section 8 shall
for any reason be unavailable to an Indemnified Party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each Indemnifying Party shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party on the one hand or the Indemnified Party on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission,
but not by reference to any Indemnified Party's stock ownership in the Company.
In no event, however, shall a Holder of Registrable Securities be required to
contribute in excess of the amount of the net proceeds received by such Holder
in connection with the sale of Registrable Securities in the offering which is
the subject of such loss, claim, damage or liability. The amount paid or payable
by an Indemnified Party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this paragraph shall be deemed
to include, for purposes of this paragraph, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 12(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
9. INFORMATION BY HOLDER. Holders including any Registrable
Securities in any registration shall furnish to the Company such information
regarding such Holders as shall be necessary to enable the Company to comply
with the provisions hereof in connection with any registration, qualification or
compliance referred to in this Agreement.
10. RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Restricted Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
11.
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(b) File with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) Furnish to any Holder forthwith upon request a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time after ninety (90) days after the effective
date of the first registration statement filed by the Company for an offering of
its securities to the general public), and of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company and other
information in the possession of or reasonably obtainable by the Company as such
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such Holder to sell any such securities without
registration.
11. TRANSFER OF REGISTRATION RIGHTS. The rights to cause the
Company to register securities granted Holders under Sections 2, 3 and 4 may be
assigned in connection with any transfer or assignment by a Holder of
Registrable Securities provided that: (a) such transfer may otherwise be
effected in accordance with applicable securities laws; (b) such transfer is
effected in compliance with the restrictions on transfer contained in this
Agreement and in any other agreement between the Company and the Holder; and (c)
such assignee or transferee agrees to be bound by the terms of this Agreement
and assumes all of the obligations of the transferring Holder hereunder. No
transfer or assignment will divest a Holder or any subsequent owner of such
rights and powers unless all Registrable Securities are transferred or assigned.
12. STANDOFF AGREEMENT. Each Holder agrees that if in connection
with the first two public offerings by the Company of its securities after the
date hereof, whether for the account of the Company or any Holder or Other
Holder, the underwriters managing the offering so request, the Holders shall not
sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities (other than those included in
the registration) without the prior written consent of such underwriters, for
such period of time (not to exceed one hundred eighty (180) days in the case of
the first offering and ninety (90) days in the case of the second offering) from
the effective date of such registration (or offering) as may be requested by
such underwriters; provided that each officer and director of the Company also
agrees with such restrictions. The provisions of this Section 12 shall terminate
and have no further force or effect on or after December 31, 1997.
13. TERMINATION. This Agreement shall terminate, with respect to
each Holder, at such time as all Registrable Securities held by such Holder
constitute less than one percent (1.0%) of the voting securities of the Company
and can be sold pursuant to Rule 144 or Rule 144(k), within a consecutive three
(3) month period without compliance with the registration requirements of the
Securities Act. The respective indemnities, representations and warranties of
the Investors and the Company shall survive such termination.
12.
13
14. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the State of California without given effect to the
conflicts of law principles thereof.
(b) AMENDMENTS AND WAIVERS. Any term of this Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Holders of
at least eighty percent (80%) of the Registrable Securities, voting as a class.
Any amendment or waiver effected in accordance with this paragraph will be
binding upon the Company, each holder of any securities purchased under this
Agreement at the time outstanding (including securities into which such
securities are convertible), and any transferee of such securities.
(c) SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, invalid, unenforceable or void, this Agreement shall continue in full
force and effect without said provision. In such event, the parties shall
negotiate, in good faith, a legal, valid and binding substitute provision which
most nearly effects the intent of the parties in entering into this Agreement.
(d) NOTICES. All notices and other communications
required or permitted hereunder shall be in writing (or in the form of a telex
or telecopy (confirmed in writing) to be given only during the recipient's
normal business hours unless arrangements have otherwise been made to receive
such notice by telex or telecopy outside of normal business hours) and shall be
mailed by registered or certified mail, postage prepaid, or otherwise delivered
by hand, messenger, or telex or telecopy (as provided above) addressed (a) if to
a Purchaser, at such address as such Purchaser shall have furnished to the
Company in writing or (b) if to any other Holder of Common Stock, at such
address as such Holder shall have furnished the Company in writing or, until any
such Holder so furnishes an address to the Company, then to and at the address
of the last holder of such shares who has so furnished an address to the Company
or (c) if to the Company, one copy should be sent to its principal executive
offices and addressed to the attention of the Corporate Secretary, or at such
other address as the Company shall have furnished to the Investors.
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, 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, or, if
by telex or telecopy pursuant to the above, when received.
(e) FACSIMILE SIGNATURES. Any signature page delivered by
a fax machine or telecopy machine shall be binding to the same extent as an
original signature page, with regard to any agreement subject to the terms
hereof or any amendment thereto. Any party who delivers
13.
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such a signature page agrees to later deliver an original counterpart to any
party which requests it.
(f) COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together will constitute one and the same instrument.
(g) TITLES, SUBTITLES AND TABLE OF CONTENTS. The titles,
subtitles and table of contents used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
14.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY" "INVESTOR"
JTS CORPORATION, -----------------------------------
a Delaware corporation Name of Investor
By:
----------------------------------- -----------------------------------
Name: Signature
Title:
-----------------------------------
Title, if applicable
15.
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EXHIBIT A
SCHEDULE OF INVESTORS
Advanced Technology Ventures III
Advanced Technology Ventures IV
Alta V Limited Partnership
Atherton Ventures
BI Walden Ventures
Kedua Sdn Bhd
Brentwood Associates VI, L.P.
C.V. Sofinnova Ventures Partners II
C.V. Sofinnova Ventures Partners III
Customs House Partners
DPI 1995 Investment Partners
Roger C. Davisson and Marjorie Davisson,
Trustees of the Davisson Family Trust Dated
November 20, 1994
Richard C. DeGolia
Richard C. DeGolia and Sallie V.D. DeGolia,
Trustees of the DeGolia Family Trust
Robert Easton
William Elmore
Dr. Richard Emori
Gilde IV B.V.
Gilde Investment Fund B.V.
Teddy Hadiono
B. Kipling and Mary Ann Hagopian, Trustees
UTD 3/25/88
Marie-Helene Habert-Dassault
High Street Partners
1.
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International Venture Capital Investment
Corporation
Steven L. Kaczeus, Sr.
Greg Kudo
Lunenburg S.A.
David T. Mitchell
Needham Capital Partners, L.P.
Needham Capital SBIC, L.P.
OCBC, Wearnes & Walden Investments
(Singapore) Ltd.
O, W & W Pacrim Investments Ltd.
One Liberty Fund III, L.P.
Timothy M. Pennington III and Melissa J.
Pennington, Trustees of the Pennington Family
Revocable Trust DTD 5/23/84
R&M Investors 1995
SBCB Holdings
Seed Ventures II Limited
Sofinnova Ventures III
S.N. Venture Capital, Inc.
Devinder L. Tandon, M.D. and Usha Tandon,
Trustees of The Devinder and Usha Tandon
Family Trust Dated 06/10/94
Jawahar L. Tandon, Trustee of The Jawahar L.
Tandon Irrevocable Trust
D. & U. Tandon, LLC, a California limited
liability company
J. & S. Tandon, LLC, a California limited
liability company
2.
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Sirjang Lal Tandon
TEAC Corporation
Richard J. Testa
Jack Tramiel
WS Investment Company 94A
WS Investment Company 95B
D.M. Laurice and M.M. Rosati, Trustees WSGR
Retirement Plan U/A DTD 02/01/88, FBO Rick
DeGolia
Venture Lending & Leasing, Inc.
Walden Capital Partners II, L.P.
Walden Investors
Walden Technology Ventures II, L.P.
Walden Ventures
Wallia, Perry
Jasper A. Welch
Western Digital Corporation
3.