Exhibit 10.17
COMPUTER ACCESS TECHNOLOGY CORPORATION
INVESTORS' RIGHTS AGREEMENT
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September 28, 2000
TABLE OF CONTENTS
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Page
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1. Registration Rights.................................................. 1
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1.1 Definitions..................................................... 1
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1.2 Company Registration............................................ 2
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1.3 Obligations of the Company...................................... 2
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1.4 Furnish Information............................................. 4
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1.5 Expenses of Company Registration................................ 4
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1.6 Underwriting Requirements....................................... 4
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1.7 Delay of Registration........................................... 4
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1.8 Indemnification................................................. 4
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1.9 Reports Under Securities Exchange Act of 1934................... 6
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1.10 Assignment of Registration Rights............................... 7
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1.11 "Market Stand-Off" Agreement.................................... 7
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1.12 Termination of Registration Rights.............................. 8
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2. Miscellaneous........................................................ 8
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2.1 Effective Date of Agreement..................................... 8
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2.2 Successors and Assigns.......................................... 8
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2.3 Governing Law................................................... 9
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2.4 Counterparts.................................................... 9
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2.5 Titles and Subtitles............................................ 9
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2.6 Notices......................................................... 9
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2.7 Expenses........................................................ 9
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2.8 Amendments and Waivers.......................................... 9
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2.9 Severability.................................................... 9
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2.10 Aggregation of Stock............................................ 9
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2.11 Reincorporation................................................. 9
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2.12 Entire Agreement; Amendment; Waiver............................. 9
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2.13 Termination..................................................... 10
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i
INVESTORS' RIGHTS AGREEMENT
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THIS INVESTORS' RIGHTS AGREEMENT (the "Agreement") is made as of the 28th
day of September, 2000, by and between Computer Access Technology Corporation, a
California corporation (the "Company"), and Agilent Technologies, Inc.
("Investor").
RECITALS
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WHEREAS, Investor is a party to two Stock Purchase and Sale Agreements
dated September 28, 2000, one of which is entered into with the Company and one
with certain selling stockholders of the Company, under either of which it may
become the recordholder of shares of unregistered Common Stock of the Company
("Stock Purchase Agreement");
WHEREAS, the Company and Investor desire to expand their relationship;
WHEREAS, the Company desires that Investor become a shareholder, and
Investor desires to become a shareholder, of the Company;
WHEREAS, Investor and the Company hereby agree that this Agreement shall
govern the rights of Investor, once it becomes a recordholder of Common Stock of
the Company pursuant to the provisions of the Stock Purchase Agreement, to cause
the Company to register shares of Common Stock issuable to Investor and certain
other matters as set forth herein;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as follows:
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1.1. Definitions. For purposes of this Section 1:
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(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance with
Section 1.11 hereof.
(d) The term "1934 Act." shall mean the Securities Exchange Act
of 1934, as amended.
(e) The term "register", "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
1.
(f) The term "Registrable Securities" means (i) the shares of
Common Stock being purchased by the Investor under the Stock Purchase Agreement;
(ii) any Common Stock of the Company issued as (or issuable upon the conversion
or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of the shares referenced in (i) above, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
his rights under this Section 1 are not assigned.
(g) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2. Company Registration. If (but without any obligation to do so)
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the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan, a registration
on any form which does not include substantially the same information as would
be required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 2.6, the Company shall, subject to the provisions of
Section 1.6, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.3. Obligations of the Company. Whenever required under this Section
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1 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to one hundred twenty (120)
days or until the distribution contemplated in the Registration Statement has
been completed; provided, however, that (i) such 120-day period shall be
extended for a period of time equal to the period the Holder refrains from
selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company; and (ii) in
the case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such 120-day period
shall be extended, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold, provided that Rule 415, or any
successor rule under the Act, permits an offering on a continuous or delayed
basis, and provided further that applicable rules under the Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a post-
effective amendment which (I) includes any prospectus required by Section
10(a)(3) of the Act or (II) reflects facts or events representing a material or
fundamental change in the information set forth in the registration statement,
the incorporation by reference of information required to be
2.
included in (I) and (II) above to be contained in periodic reports filed
pursuant to Section 13 or 15(d) of the 1934 Act in the registration statement.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Act.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the 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 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.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 1, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Section 1, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the
3.
underwriters, if any, and to the Holders requesting registration of Registrable
Securities and (ii) a letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
1.4. Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.5. Expenses of Company Registration. The Company shall bear and pay
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all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.2 for each Holder (which right may be assigned as provided
in Section 1.10), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto (excluding underwriting discounts and commissions relating to
Registrable Securities), and in addition, up to $15,000 per registration for
fees and expenses of one counsel for the Holders (selected by the Holders).
1.6. Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be required to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by stockholders to be included, in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (the securities so included to be apportioned pro
rata among the selling stockholders according to the total amount of securities
entitled to be included therein owned by each selling stockholder or in such
other proportions as shall mutually be agreed to by such selling stockholders).
1.7. Delay of Registration. No Holder shall have any right to obtain
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or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.8. Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
4.
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages,
or liabilities (joint or several) to which they may become subject under the
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.8(a) shall not apply to amounts paid in
settlement of any such loss, claim damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, underwriter or controlling person seeking
indemnification.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder expressly for
use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.8(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.8(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; provided, that,
in no event shall any indemnity under this subsection 1.8(b) exceed the gross
proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.8, deliver to
the indemnifying party a written notice of the
5.
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party (together with all other indemnified parties which may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 1.8, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.8.
(d) If the indemnification provided for in this Section 1.8 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control with respect to such underwritten public offering.
(f) The obligations of the Company and Holders under this
Section 1.8 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.9. Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
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 or
pursuant to a registration on Form S-3, the Company agrees to:
6.
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times
after ninety (90) days after the effective date of the first
registration statement filed by the Company for the offering of
its securities to the general public;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the 1934 Act,
as is necessary to enable the Holders to utilize Form S-3 for the
sale of their Registrable Securities, such action to be taken as
soon as practicable after the end of the fiscal year in which the
first registration statement filed by the Company for the offering
of its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the 1934
Act; and
(d) furnish to any Holder, so long as the Holder owns
any Registrable Securities, forthwith upon request (i) a written
statement by the Company that it has complied with the reporting
requirements of SEC Rule 144 (at any time after ninety (90) days
after the effective date of the first registration statement filed
by the Company), the Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant
to Form S-3 (at any time after it so qualifies), (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 in availing
any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to
such form.
1.10. Assignment of Registration Rights. The rights to
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cause the Company to register Registrable Securities pursuant to
this Section 1 may be assigned (but only with all related
obligations) by a Holder to any transferee who acquires at least
50,000 shares of the Registrable Securities, provided that
the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which
such registration rights are being assigned. The transfer of
Registrable Securities under this Section 1.10 is only permitted
when any transferee or assignee agrees in writing to be bound by
and subject to the terms and conditions of this Agreement,
including without limitation the provisions of Section 1.11 below.
1.11. "Market Stand-Off" Agreement. Each Investor hereby
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agrees that, during the period of duration specified by the
Company and an underwriter of Common Stock or other securities of
the Company, following the effective date of a registration
statement of the Company filed under the Act, it shall not, to the
extent it requested by the Company and such underwriter, directly
or indirectly sell, offer to sell, contract to sell (including,
without limitation, any short sale), grant any option to purchase
or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company held by
it at any time during such period except common stock included in
such registration; provided, however, that:
(a) such agreement shall be applicable only to the first
such registration statement of the Company which covers Common
Stock to be sold on its behalf to the public in an underwritten
offering;
7.
(b) all officers and directors of the Company enter into
similar agreements; and
(c) such market stand-off time period shall not exceed 180
days from the effective date of the registration statement.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.11 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction on Form S-4 or similar forms which may be promulgated in the future.
1.12. Termination of Registration Rights.
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(a) No Holder shall be entitled to exercise any right
provided for in this Section 1 after two (2) years following the effective date
of the first registration statement for an underwritten public offering of
securities of the Company (other than a registration statement relating either
to the sale of securities to employees of the company pursuant to a stock
option, stock purchase or similar plan or a SEC Rule 145 transaction. )
(b) In addition, the right of any Holder to request
registration or inclusion in any registration pursuant to Section 1.2 shall
terminate on the closing of the first Company-initiated registered public
offering of Common Stock of the Company if all shares of Registrable
Securities held or entitled to be held upon conversion by such Holder may
immediately be sold under Rule 144 during any 90-day period, or on such date
after the closing of the first Company-initiated registered public offering of
Common Stock of the Company as all shares of Registrable Securities held or
entitled to be held upon conversion by such Holder may immediately be sold under
Rule 144 during any 90-day period.
2. Miscellaneous.
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2.1. Effective Date of Agreement. This Agreement shall not
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become effective until the Investors are the recordholders of the Common Stock
pursuant to the Stock Purchase Agreement, and such effectiveness shall be
automatic, without further action on the part of the parties hereto.
2.2. Successors and Assigns. Except as otherwise provided
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herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
8.
2.3. Governing Law. This Agreement shall be governed by and construed
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under the laws of the State of Delaware.
2.4. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.5. Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.6. Notices. Unless otherwise provided, any notice required or
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permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
2.7. Expenses. If any action at law or in equity is necessary to
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enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
2.8. Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company. In the event of a waiver by
stockholder written consent pursuant to this section which the Investor did not
execute, prompt notice of such waiver, the terms thereof and copies of all
consents, signature pages and related documents shall be provided to Investor.
2.9. Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
2.10. Aggregation of Stock. All shares of Registrable Securities held
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or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
2.11. Reincorporation. The parties acknowledge that the Company
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intends to reincorporate in Delaware in conjunction with its initial public
offering of registered shares.
2.12. Entire Agreement: Amendment; Waiver. This Agreement (including
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the Exhibits hereto, if any), along with the Stock Purchase Agreement and any
9.
documents related thereto, constitutes the full and entire
understanding and agreement with regard to the subjects hereof and
thereof.
2.13. Termination. In the event that Investor has not
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consummated the purchase of shares of unregistered Common Stock of
the Company under one of the Stock Purchase and Sale Agreements on or
before April 30, 2001, this Agreement shall immediately terminate and
be of no further force or effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
COMPUTER ACCESS TECHNOLOGY
CORPORATION
By: /s/ Dan Wilnai
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Dan Wilnai, President
Address: 2403 Walsh Avenue
Santa Clara, CA 95051
Attn: President
INVESTOR:
AG1LENT TECHNOLOGIES, INC.
By: /s/ Byron Anderson
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Address: Agilent Technologies, Inc.
395 Page Mill Road
Palo Alto CA 94306
Attn: General Counsel
10.