EXHIBIT 10.27
[*] = information redacted pursuant to a confidential treatment request. Such
omitted information has been filed separately with the Securities and Exchange
Commission.
PALM, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made effective as
of December 6, 2001 (the "Effective Date"), by and between Palm, Inc., a
Delaware corporation (the "Company") and [*] (the "Holder").
RECITALS
A. The Company has entered into a Convertible Note Purchase Agreement with
the Holder dated as of the date hereof (the "Purchase Agreement") pursuant to
which it will issue a convertible subordinated note (the "Convertible Note") to
Holder dated of even date herewith and convertible into fully paid and
non-assessable shares of the Company's common stock, par value $0.001 per share
(the "Common Stock"), at a rate determined as set forth in the Convertible Note.
B. The Purchase Agreement contemplates the simultaneous execution of this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the terms below shall
have the following respective meanings:
"Business Day" means any day other than Saturday, Sunday or other
day on which commercial banks in the State of California are required or
authorized by law to be closed.
"Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Effectiveness Period" means the period commencing on the date
hereof and ending on the date that all Registrable Securities have ceased to be
Registrable Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal rule or statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Prospectus" means the prospectus included in a Registration
Statement (including without limitation, a prospectus that discloses information
previously omitted from a prospectus
filed as a part of an effective Registration Statement in reliance upon Rule
430A promulgated under the Securities Act), as amended or supplemented by
amendment or prospectus supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be incorporated by
reference in such prospectus.
"Registrable Securities" means the Common Stock issuable upon
conversion of the Convertible Note and any securities into or for which such
Common Stock has been converted or exchanged and any security issued, with
respect thereto upon any stock dividend, split or similar event, until (i) in
the case of any such security, (A) the earliest of (i) the effective
registration under the Securities Act and resale thereof in accordance with the
Registration Statement covering it, (ii) the resale thereof in accordance with
Rule 144 or (iii) the expiration of the holding period that would be applicable
thereto under Rule 144(k) under the Securities Act and (B) as a result of the
event or circumstance described in any of the foregoing clauses (i)-(iii) the
legend with respect to transfer restrictions required under the Convertible Note
are removed or removable in accordance with the terms of the Convertible Note or
such legends as the case may be; provided, however, that any Registrable
Securities (x) not specified in the Registration Request or a Joining Request,
if applicable, within the time period specified in Section 4(a)(ii) or (y) the
holder of which fails to provide the Company the information of such holder
requested by the Company as is required in order to effect the registration
pursuant to this Agreement on or prior to the later of (i) twenty (20) days
following the delivery or mailing of the Registration Notice (as defined in
Section 4(a)(i)), if applicable, and (ii) 9:00 a.m., San Francisco time, on the
second Business Day prior to the filing of the Shelf Registration Statement (as
defined in Section 4(a)(i)) shall cease to be treated as Registrable Securities.
"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 Statement" means a registration statement of the
Company, on Form S-3 or any successor form (and in the event that pursuant to
the Securities Act the Company is unable to use Form S-3 (or any successor
form), another appropriate form permitting registration of the Registrable
Securities for resale by the Holder), that covers all or any of the Registrable
Securities pursuant to the provisions of this Agreement, including any
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all materials incorporated by
reference or explicitly deemed to be incorporated by reference in such
registration statement.
"Rule 144" means Rule 144 promulgated under the Securities Act, as
such rule may be amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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"Significant Holder" means any person that is the record owner of at
least 500,000 shares of Registrable Securities.
2. Restrictions on Transferability. The Registrable Securities shall be
subject to the restrictions on transfer set forth in the Convertible Note. Each
certificate evidencing the securities so transferred shall bear, except if such
transfer is made pursuant to Rule 144 or pursuant to an effective registration
statement, the restrictive legend set forth in Section 3 below, except that such
certificate shall not bear such restrictive legend if, in the opinion of counsel
for the Holder and counsel for the Company, such legend is not required in order
to establish or ensure compliance with the provisions of the Securities Act.
3. Restrictive Legend. Each certificate representing the Registrable
Securities shall be stamped or otherwise imprinted with the following or similar
legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
The Holder consents to the making of a notation by the Company on its records
and the giving of instructions to any transfer agent of its capital stock in
order to implement the restrictions on transfer established in this Agreement.
4. Registration on Form S-3.
Registration on Form S-3.
(a) If the Company receives from a Significant Holder a written
request (the "Registration Request") that the Company file a Registration
Statement (the date that the Company receives such request, the "Request Date"),
the Company shall:
(i) Promptly give notice of the proposed registration to all
holders of Registrable Securities (at the address of such holders contained in
the Company's books and records or provided to the Company (in writing) by such
holders for the purposes of this notice) and request such information from such
holders, including the Significant Holder(s) submitting the Registration
Request, as is required in order to effect the registration (the "Registration
Notice");
(ii) Prepare and file or cause to be prepared and filed with
the Commission not more than ninety (90) days after the Request Date (the
"Filing Deadline Date") a Registration Statement for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act
registering the resale from time to time by the Holder thereof of all of the
Registrable Securities as are specified in Registration Request, together with
the Registrable Securities of any
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holders of Registrable Securities joining in the Registration Request as are
specified in a written request (a "Joining Request") received by the Company
within twenty (20) days after the Registration Notice is mailed or delivered
(the "Shelf Registration Statement"); and
(iii) Use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act as
promptly as is reasonably practicable but in any event by the date (the
"Effectiveness Deadline Date") that is one hundred eighty (180) days after the
Request Date, and to keep the Shelf Registration Statement (or any Subsequent
Shelf Registration Statement (as defined)) continuously effective under the
Securities Act until the expiration of the Effectiveness Period.
(b) At the time the Shelf Registration Statement is declared
effective, the holders of Registrable Securities shall be named as selling
securityholders in the Shelf Registration Statement and the related Prospectus
in such a manner as to permit such holders to deliver such Prospectus to
purchasers of Registrable Securities in accordance with applicable law. None of
the Company's securityholders (other than the holders of Registrable Securities
at the time the Shelf Registration Statement is declared effective) shall have
the right to include any of the Company's securities in the Shelf Registration
Statement.
(c) If the Shelf Registration Statement or any Subsequent Shelf
Registration Statement (as defined below) ceases to be effective for any reason
at any time during the Effectiveness Period (other than because all Registrable
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities), the Company shall use
its reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event (subject to Section 5(g))
shall as promptly as reasonably practicable amend the Shelf Registration
Statement in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or (subject to Section 5(g)) file an
additional Shelf Registration Statement covering all of the securities that as
of the date of such filing are Registrable Securities (a "Subsequent Shelf
Registration Statement"). If a Subsequent Shelf Registration Statement is filed,
the Company shall use its reasonable best efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as is reasonably
practicable after such filing and to keep such Subsequent Shelf Registration
Statement continuously effective until the end of the Effectiveness Period.
(d) Subject to Section 5(g), the Company shall supplement and amend
the Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement, if required by the Securities Act or as reasonably
requested by the Holder or counsel for the Holder.
5. Registration Procedures. In connection with the registration
obligations of the Company under Section 4, the Company shall:
(a) Prepare and file with the Commission the Shelf Registration
Statement (and any Subsequent Shelf Registration Statement, if required) not
more than ninety (90) days after the Request Date and use its reasonable best
efforts to cause the Shelf Registration Statement to become
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effective not more than one hundred eighty (180) days after the Request Date and
remain effective as provided herein; provided, that before filing the Shelf
Registration Statement or Prospectus or any amendments or supplements thereto
with the Commission, the Company shall furnish to the Holder and counsel for the
Holder, if any, copies of all such documents proposed to be filed and use
reasonable efforts to reflect in each such document when so filed with the
Commission such comments, if any, as counsel for the Holder reasonably shall
propose within five (5) Business Days of the delivery of such copies to the
Holder and counsel for the Holder;
(b) Subject to Section 5(g), prepare and file with the Commission
such amendments and post-effective amendments to the Shelf Registration
Statement as may be necessary to keep the Shelf Registration Statement
continuously effective for the applicable period specified in Section 4(a);
subject to Section 5(g), cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and
use its reasonable best efforts to comply with the provisions of the Securities
Act applicable to it with respect to the disposition of all Registrable
Securities covered by the Shelf Registration Statement during the Effectiveness
Period in accordance with the intended methods of disposition by the sellers
thereof set forth in the Shelf Registration Statement as so amended or such
Prospectus as so supplemented;
(c) As promptly as reasonably practicable give notice to the Holder
and counsel for the Holder, (i) when any Prospectus, Prospectus supplement,
Shelf Registration Statement or post-effective amendment to the Shelf
Registration Statement has been filed with the Commission and, with respect to
the Shelf Registration Statement or any post-effective amendment, when the same
has been declared effective, (ii) of any written request, following the
effectiveness of the Shelf Registration Statement under the Securities Act, by
the Commission or any other federal or state governmental authority for
amendments or supplements to any Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation or written
threat of any proceedings for that purpose, (iv) of the receipt by the Company
of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or the written threat of any proceeding for
such purpose, (v) of the occurrence of a Material Event (as defined below) (but
not the nature of or details concerning such Material Event) and (vi) of the
determination by the Company that a post-effective amendment to the Shelf
Registration Statement will be filed with the Commission, which notice may, at
the discretion of the Company (or as required pursuant to Section 5(g)), state
that it constitutes a Deferral Notice (as defined below), in which event the
provisions of Section 5(g) shall apply;
(d) Use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale and provide reasonably prompt notice to the Holder
and counsel for the Holder of the withdrawal of any such order;
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(e) Subject to Section 5(g), if reasonably requested by the Holder,
as promptly as reasonably practicable incorporate in a Prospectus supplement or
post-effective amendment to the Shelf Registration Statement such information as
the Holder and counsel for the Holder shall determine to be required to be
included therein by applicable law and make any required filings of such
Prospectus supplement or post-effective amendment;
(f) Furnish to the Holder and each underwriter, if any, of
Registrable Securities covered by the Shelf Registration Statement (a) promptly
after the same is prepared and publicly distributed, filed with the Commission,
or received by the Company, one conformed copy of the Shelf Registration
Statement and any amendment thereto, each Prospectus and each amendment or
supplement thereto, and, as promptly as reasonably practicable after the date of
effectiveness of the Shelf Registration Statement or any amendment thereto, a
notice stating that the Shelf Registration Statement or amendment thereto has
been declared effective, and (b) such number of copies of Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits thereto), and the Prospectus included in the Shelf Registration
Statement (including each preliminary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as the Holder may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by the Holder. Such delivery of documents pursuant to (b) above
shall be made by the Company within three (3) trading days of receipt of a
request therefor from the Holder;
(g) Upon (i) the issuance by the Commission of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration Statement under
Section 8(d) or 8(e) of the Securities Act, (ii) the occurrence of any event or
the existence of any fact or circumstance as a result of which the Shelf
Registration Statement shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (a "Material
Event"), or (iii) the occurrence, existence or pendency of any corporate
development that, in the reasonable discretion of the Company, makes it
detrimental to the Company for the Shelf Registration Statement and the related
Prospectus to be available for a discrete period of time, (A) in the case of
clause (ii) above, subject to the next sentence, as promptly as practicable
prepare and file, if necessary pursuant to applicable law, a post-effective
amendment to the Shelf Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file any other
required document that would be incorporated by reference into the Shelf
Registration Statement and Prospectus so that the Shelf Registration Statement
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to a Registration Statement,
subject to the next sentence, use its reasonable best efforts to cause it to be
declared effective as promptly as is reasonably practicable,
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and (B) give notice to the Holder, counsel for the Holder and underwriter, if
any, that the availability of the Shelf Registration Statement is suspended (a
"Deferral Notice") and, upon receipt of any Deferral Notice, the Holder agrees
not to sell any Registrable Securities pursuant to the Registration Statement
until the Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (A) above, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus. The Company will use its reasonable best
efforts to ensure that the use of the Prospectus may be resumed (x) in the case
of clause (i) above, as promptly as is reasonably practicable, (y) in the case
of clause (ii) above, as soon as, in the sole judgment of the Company, public
disclosure of such Material Event would not be prejudicial to or contrary to the
interests of the Company or, if necessary to avoid unreasonable burden or
expense, as soon as reasonably practicable thereafter and (z) in the case of
clause (iii) above, as soon as in the reasonable discretion of the Company, such
suspension is no longer appropriate. The Company shall be entitled to exercise
its right under this Section 5(g) to suspend the availability of the Shelf
Registration Statement or any Prospectus no more than [*] in any [*] or [*] in
any [*], and any such period during which the availability of the Registration
Statement and any Prospectus is suspended (the "Deferral Period") shall not
exceed [*]; provided, that the aggregate duration of any Deferral Periods shall
not exceed [*] in any [*] (or [*] in any [*] in the event of a Material Event
pursuant to which the Company has delivered a second notice as required below)
or [*] in any [*]; provided, that in the case of a Material Event relating to an
acquisition or a probable acquisition or financing, recapitalization, business
combination or other similar transaction, the Company may deliver to the Holder
a second notice to the effect set forth above, which shall have the effect of
extending the Deferral Period by up to an additional [*], or such shorter period
of time as is specified in such second notice;
(h) Use its reasonable best efforts to register or qualify the
Registrable Securities under the securities or "blue sky" laws of each state of
the United States of America as any of the Holder or underwriters, if any, of
the Registrable Securities covered by the Shelf Registration Statement
reasonably requests, and shall do any and all other acts and things which may be
reasonably necessary or advisable to enable the Holder and each underwriter, if
any, to consummate the disposition in such states of the Registrable Securities
owned by the Holder; provided that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (h), (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction;
(i) Comply with all applicable rules and regulations of the
Commission and make generally available to its securityholders earning
statements (which need not be audited) satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
3-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) commencing on the first day of the first fiscal quarter of the
Company commencing after the effective date of the Shelf Registration Statement,
which statements shall cover said periods;
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(j) Cooperate with the Holder to facilitate the timely preparation
and delivery of certificates representing Registrable Securities sold or to be
sold pursuant to the Shelf Registration Statement, which certificates shall not
bear any restrictive legends, and use reasonable efforts to cause such
Registrable Securities to be in such denominations and registered in such names
as the Holder may request in writing at least one (1) trading day prior to any
sale of such Registrable Securities;
(k) Provide a CUSIP number for all Registrable Securities covered by
the Shelf Registration Statement not later than the effective date of the Shelf
Registration Statement and provide the transfer agent for the Common Stock with
printed certificates for the Registrable Securities that are in a form eligible
for deposit with The Depository Trust Company;
(l) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc. and take any reasonable acts
which may be necessary to list the Common Stock underlying the Convertible Note
on the Nasdaq National Market as required by Nasdaq National Market, or such
other principal market or exchange as the Common Stock shall then be listed or
traded, and take such other reasonable acts as may be necessary to secure such
listing;
(m) Enter into customary agreements (including an underwriting
agreement in customary form) and take all such other reasonable and customary
actions as the Holder or the underwriters, if any, may reasonably request in
order to expedite or facilitate the disposition of the Registrable Securities in
accordance with the terms of this Agreement;
(n) Make reasonably available for inspection during normal business
hours by a representative for the Holder, and any broker-dealers, counsel for
the Holder, accountants or underwriter, all relevant financial and other records
and pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the appropriate officers, directors and employees of the
Company and its subsidiaries to make reasonably available for inspection during
normal business hours on reasonable notice all relevant information reasonably
requested by such representative for the Holder, or any such broker-dealers,
counsel for the Holder, accountants or underwriter in connection with such
disposition, in each case as is customary for similar "due diligence"
examinations; provided, however, that the Holder (and its agents and
representatives) shall hold in confidence and shall not make any disclosure
(except to another Holder, if any) of any such information, unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) disclosure of such information is necessary to avoid or to
correct a misstatement or omission in any Registration Statement, (iii) release
of such information is ordered pursuant to a subpoena or other order from a
court or government body of competent jurisdiction, (iv) such information has
been made generally available to the public other than by disclosure in
violation of this or any other agreement, or (v) the Company consents to any
such disclosure. The Holder agrees that it shall, upon learning that disclosure
of such information is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and allow
the Company, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the information deemed
confidential. Nothing
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herein shall be deemed to limit the Holder's ability to sell Registrable
Securities in a manner which is otherwise consistent with applicable laws and
regulations; and
(o) Hold in confidence and not make any disclosure of information
concerning the Holder provided to the Company pursuant to this Agreement unless
(i) disclosure of such information is necessary to comply with federal or state
securities laws, (ii) disclosure of such information is necessary to avoid or to
correct a misstatement or omission in the Registration Statement, (iii) release
of such information is ordered pursuant to a subpoena or other order from a
court or governmental body of competent jurisdiction, (iv) such information has
been made generally available to the public other than by disclosure in
violation of this or any other agreement, or (v) the Holder consents to the form
and content of any such disclosure. The Company agrees that it shall, upon
learning that disclosure of such information concerning the Holder is sought in
or by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Holder prior to making such disclosure, and
allow the Holder, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.
6. Company Registration on Form S-3. At its own initiative, the Company
may effect the registration of the Registrable Securities pursuant to a
Registration Statement in order to comply with Section 3(g)(2)(iii) of the
Convertible Note and the holders of Registrable Securities will cooperate with
the Company in its efforts to effect such registration. In the event that the
Company elects to initiate a registration of the Registrable Securities pursuant
to this Section 6, no later than twenty (20) days prior to the filing of the
Registration Statement in connection with such registration, the Company shall
provide notice of the proposed registration to all holders of Registrable
Securities (at the address of such holders contained in the books and records of
the Company or provided to the Company (in writing) by such holders for the
purposes of this Notice) and request such information from such holders as is
required in order to effect the registration. Any Registration Statement
initiated by the Company pursuant to this Section 6 shall be deemed to be a
Shelf Registration Statement and shall be subject to the provisions of this
Agreement applicable to a Shelf Registration Statement to the extent that such
provisions do not conflict with Section 3(g)(2)(iii) of the Convertible Note.
7. Other Registration Rights. The Company is not, as of the date hereof, a
party to, nor shall it, on or after the date of this Agreement, enter into, any
agreement with respect to its securities that conflicts with the rights granted
to the Holder in this Agreement. The Company represents and warrants that the
rights granted to the Holder hereunder do not in any way conflict with the
rights granted to the holders of the Company's securities under any other
agreements.
8. Expenses of Registration. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations
under Section 4 and 6 of this Agreement whether or not the Shelf Registration
Statement is declared effective. Such fees and expenses shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (x) with respect to filings required to be made with the
National Association of Securities Dealers, Inc., (y) any fees for the
additional listing of the shares of Common Stock underlying the Convertible Note
on the Nasdaq National Market as required by the
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Nasdaq National Market, or such other principal market as the Company's Common
Stock may then be listed or traded, and (z) of compliance with federal and state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of one counsel for the Holder in connection with Blue Sky
qualifications of the Registrable Securities under the laws of such
jurisdictions as Notice Holders of a majority of the Registrable Securities
being sold pursuant to the Shelf Registration Statement may designate), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company, (iii) duplication expenses relating to copies of any
Registration Statement or Prospectus delivered to the Holder hereunder, (iv)
fees and disbursements of counsel for the Company and counsel for the Holder in
connection with the Shelf Registration Statement (provided that the Company
shall not be liable for the fees and expenses of more than one separate firm for
all parties participating in any transaction hereunder), (v) reasonable fees and
disbursements of the transfer agent for the Common Stock and (vi) Securities Act
liability insurance obtained by the Company in its sole discretion. In addition,
the Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special
experts, retained by the Company. Notwithstanding the provisions of this Section
8, the Holder shall pay all selling expenses, including but not limited to all
underwriting discounts (if any), selling commissions and stock transfer taxes.
9. Indemnification.
(a) The Company will indemnify the Holder, each of its officers and
directors, employees, partners, advisors and agents, and each person controlling
the Holder within the meaning of Section 15 of the Securities Act, with respect
to registration which has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions or proceedings in
respect thereof), including reasonable costs of investigation and reasonable
legal fees and expenses and any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on (i) any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, preliminary prospectus, prospectus, offering circular or
other document, or any amendment or supplement thereto, incident to any such
registration, or arising out of 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 (ii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any other applicable securities law,
including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Registrable
Securities and, in either case, the Company will reimburse each Indemnified
Party (as defined in Section 9(c)), 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
contained in written information furnished to the
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Company by an instrument duly executed by the Holder or controlling person or
their agent, and stated to be specifically for use therein; and provided,
further, that the foregoing indemnity agreement is subject to the condition
that, insofar as it relates to any such untrue statement, alleged untrue
statement, omission or alleged omission made in a preliminary prospectus, such
indemnity agreement shall not inure to the benefit of any person, if a copy of
the final prospectus or an amended or supplemented prospectus, as applicable,
was furnished to the Holder or an underwriter within the period of time required
by the Securities Act, and if the final prospectus or the amended or
supplemented prospectus, as applicable, would have cured the defect giving rise
to the loss, liability, claim or damage. The Company also agrees to indemnify
underwriters participating in the distribution, their officers, directors,
employees, partners and agents, and each person who controls such underwriters
(within the meaning of the Securities Act) to the same extent as provided above,
if so requested.
(b) The Holder will indemnify the Company, each of its directors and
officers, employees, partners, advisors and agents and each person controlling
the Company within the meaning of Section 15 of the Securities Act against all
claims, losses, damages and liabilities (or actions or proceedings in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, preliminary 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 each Indemnified Party for any legal or any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, but only to the extent that such
untrue statement (or alleged untrue statement) or omission (or alleged omission)
is made in reliance upon and contained in written information furnished to the
Company by an instrument duly executed by such Holder or controlling person or
their agent and stated to be specifically for use therein; provided, however,
that the Holder shall be liable for only that amount as does not exceed the net
proceeds actually received by the Holder as a result of the offering of
Registrable Securities to which the loss, liability, claim or damage relates.
The Holder also agrees to indemnify underwriters participating in the
distribution, their officers, directors, employees, partners and agents, and
each person who controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above, if so requested.
(c) Each party entitled to indemnification under this Section 9 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that (i) counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, (ii) that the failure of any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 9 unless the failure to give such notice is materially
prejudicial to an Indemnifying Party's ability to defend such action, and then
only to the extent that such Indemnifying Party is materially prejudiced, and
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(iii) that the Indemnifying Party shall not assume the defense for matters as to
which, in the reasonable opinion of counsel retained by the Indemnified Party,
there is a conflict of interest or there are separate and different defenses. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which (i) does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation and a covenant not to sue or (ii) includes admission of fault by the
Indemnified Party. The indemnification required by this Section 9 shall be made
by periodic payments of expenses, losses, damage or liability incurred during
the course of the investigation or defense, as such expenses, losses, damage or
liability are incurred and are due and payable.
10. Contribution. If for any reason the indemnification provided for in
Section 9 is unavailable to an Indemnified Party or insufficient to hold it
harmless as contemplated by Section 9, then the Indemnifying Party shall
contribute to the amount paid or payable by the Indemnified Party as a result of
such loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by the Indemnifying Party and
the Indemnified Party, but also the relative fault of the Indemnifying Party and
the Indemnified Party, as well as any other relevant equitable considerations,
provided that the Holder shall not be required to contribute an amount greater
than the dollar amount of the net proceeds received by the Holder with respect
to the sale of the Registrable Securities giving rise to such indemnification
obligation. The relative fault of any Indemnifying Party or of any Indemnified
Party shall be determined by reference to, among other things, 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 such
Indemnifying Party or by the Indemnified Party or their affiliates or
representatives, and the parties' relative intent, knowledge, access to
information and the opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 10 were determined by (i) pro rata
allocation (even if all Holders or any agents for the Holders or any
underwriters of the Registrable Securities, or all of them, were treated as one
entity for such purpose), or (ii) by any other method that does not take into
account the equitable considerations referred to in this Section 10. The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action, proceeding or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person.
11. Liquidated Damages.
(a) If on or prior to (i) the Filing Deadline Date, the Company has
not filed the Shelf Registration Statement with the Commission, or (ii) the
Effectiveness Deadline Date, the Shelf Registration Statement is not declared
effective by the Commission (each of (i) and (ii) a "Registration Default"), the
Company shall be required to pay liquidated damages ("Liquidated Damages"), from
and including the day following such Registration Default until the earlier of
(i) the time that the Shelf Registration Statement is filed or declared
effective, as applicable, (ii) the
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time the Effectiveness Period expires or (iii) the time of the acceleration of
the Convertible Note at a rate [*] equal to [*] of the principal amount of the
Convertible Note, or portion thereof, corresponding to the Registrable
Securities.
(b) In the event that the Shelf Registration Statement ceases to be
effective for more than 40 days, whether or not consecutive, in any 90-day
period (an "Effectiveness Default"), then the Company shall pay Liquidated
Damages at a rate [*] equal to [*] of the principal amount of the Convertible
Note, or portion thereof, corresponding to the Registrable Securities from the
[*].
(c) Any amounts to be paid as Liquidated Damages pursuant to
paragraphs (a) or (b) of this Section 11 shall be paid upon the earlier of (i)
the first interest payment date (as described in the Convertible Note) following
the date of such Registration Default or Effectiveness Default, as the case may
be, and (ii) at such time as the outstanding principal amount and accrued
interest in respect of the Convertible Note are due and payable. Such Liquidated
Damages will accrue (1) in respect of the Convertible Note at the rates set
forth in paragraphs (a) or (b) of this Section 11, as applicable, on the
principal amount of the Convertible Note and (2) in respect of the Common Stock
issued upon conversion of the Convertible Note, at the rates set forth in
paragraphs (a) or (b) of this Section 11, as applicable, applied to the
Conversion Rate (as defined in the Convertible Note) at that time.
(d) The Liquidated Damages as set forth in this Section 11 shall be
the exclusive remedy available to the Holder for such Registration Default or
Effectiveness Default, as the case may be, for the periods for which the
Liquidated Damages are applicable. In no event shall the Company be required to
pay Liquidated Damages in excess of the applicable maximum amount of [*] of the
principal amount of the Convertible Note, or portion thereof, corresponding to
the Registrable Securities set forth above, regardless of whether one or
multiple Registration Defaults or Effectiveness Defaults exist.
12. Information by Holder. The Holder shall furnish to the Company such
information regarding the Holder, the Registrable Securities held by it and the
distribution proposed by the Holder as the Company may reasonably request in
writing and as shall be required in connection with any registration referred to
in this Agreement.
13. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of the
Registrable Securities to the public without registration, the Company agrees to
use reasonable best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(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; and
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(c) Furnish to the Holder, so long as the Holder owns or has the
right to acquire any Registrable Securities, within a reasonable time after the
Holder's written request, a written statement by the Company as to its
compliance with the foregoing requirements.
14. Transfer of Registration Rights. This Agreement may be assigned to a
transferee or assignee in connection with any transfer or assignment of all or a
portion of the Convertible Note or the Registrable Securities by the Holder,
provided, that (i) such transfer is otherwise effected in accordance with
applicable securities laws and the terms of this Agreement, the Purchase
Agreement and the Convertible Note, (ii) such assignee or transferee acquired at
least 500,000 shares of Registrable Securities (as adjusted for stock splits,
stock dividends, stock combinations and the like), (iii) written notice is
promptly given to the Company and (iv) such transferee agrees to be bound by the
provisions of this Agreement.
15. Amendment. Except as otherwise provided above, any provision of this
Agreement may be amended only with the written consent of the Company and the
Holder. The observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only by the
written consent of the party against whom enforcement is sought.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B). EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA, IN
EACH CASE LOCATED IN THE COUNTY OF NEW YORK, FOR ANY DISPUTE ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY (AND AGREES
NOT TO COMMENCE ANY ACTION OR PROCEEDING RELATING THERETO EXCEPT IN SUCH
COURTS).
17. Entire Agreement. This Agreement, the Convertible Note, the Purchase
Agreement, and the Annexes, Exhibits and Schedules attached hereto and thereto
and delivered in connection herewith and therewith, as the case may be,
constitute the full and entire understanding and Agreement between the parties
regarding the matters set forth herein. Except as otherwise expressly provided
herein or therein, all other agreements regarding the registration rights of the
Holder shall hereby expire. The provisions hereof shall inure to the benefit of,
and be binding upon the successors, permitted assigns, heirs, executors and
administrators of the parties hereto.
18. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be sent via facsimile, mailed by
registered or certified mail, return receipt requested, postage prepaid, by hand
or by messenger, addressed:
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(a) if to the Holder, to:
[*]
Attention: [*]
Telephone Number: [*]
Facsimile Transmission Number: [*]
With a copy to:
[*]
Attention: [*]
Telephone Number: [*]
Facsimile Transmission Number: [*]
or at such other address as the Holder shall have furnished to
the Company.
(b) if to the Company, to:
Palm, Inc.
5470 Great America Parkway
Santa Clara, CA 95052
Attention: General Counsel
Telephone Number: (408) 878-9000
Facsimile Number: (408) 878-2180
or at such other address as the Company shall have furnished to the
Holder, with a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Attention: Katharine A. Martin, Esq.
Facsimile Number: (650) 493-6811
Each such notice or other communication shall, for all purposes of this
Agreement, be treated as effective or having been given when actually delivered
as provided above, if delivered personally or by messenger, or, on the day shown
on the return receipt, if sent by mail or other delivery service.
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
PALM, INC.
a Delaware corporation
By: /s/ Judy Bruner
----------------------------
Name: Judy Bruner
--------------------------
Title: Senior Vice President &
Chief Financial Officer
-------------------------
[*]
By: [*]
----------------------------
Name: [*]
--------------------------
Title: [*]
-------------------------
[Signature Page to Registration Rights Agreement]