REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as
of June 29, 2004 among Tektronix, Inc., an Oregon corporation ( "Parent"), and
Elie S. Akilian and Samuel S. Simonian (each a "Major Stockholder"), the
principal stockholders of Inet Technologies, Inc., a Delaware corporation (the
"Company"). Capitalized terms used in this Agreement but not otherwise defined
shall have the meanings given to such terms in the Agreement and Plan of Merger
(the "Merger Agreement"), dated as of the date hereof, among Parent, the
Company, Merger Corp. and the LLC.
RECITALS
A. Pursuant to the Merger Agreement, upon completion of the Merger, each
Major Stockholder will be entitled to receive a fraction of a share of Parent
Common Stock and cash in exchange for each share of Impala Common Stock held by
such Major Stockholder at the time the Merger becomes effective. The shares of
Parent Common Stock received by each Major Stockholder in the Merger are
referred to herein as "Stock Consideration."
B. Parent and the Major Stockholders are entering into this Agreement
concurrently with the execution of the Merger Agreement.
AGREEMENT
Now, Therefore, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Registration. Within 30 days after the date of this Agreement,
Parent shall use its reasonable best efforts to file a Registration Statement
for public sale of all of the Stock Consideration on a delayed or continuous
basis pursuant to Rule 415 (or any successor provision) of the Securities Act
registering the resale from time to time by the Major Stockholders (the "Shelf
Registration Statement") and shall use its reasonable best efforts to have the
Shelf Registration Statement declared effective by the SEC on or prior to the
Closing Date. No securities other than the Registrable Shares shall be included
in any Shelf Registration Statement with respect thereto without the written
consent of the Major Stockholders. Parent shall use its reasonable best efforts
to keep the Shelf Registration Statement continuously effective (including, if
necessary, by filing with the SEC a post-effective amendment or supplement to
the Shelf Registration Statement or the related prospectus or any document
incorporated therein by reference or by filing any other required document or
otherwise supplementing or amending the Shelf Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form under the Securities Act used by Parent for such Shelf
Registration Statement, any state securities or "blue sky" laws or any other
rules and regulations thereunder) until the earlier of (i) one year after the
Closing Date or (ii) until all Registrable Shares covered by the Shelf
Registration Statement cease to be Registrable Shares (the "Effectiveness
Period"). The offering and sale of Registrable Shares shall be pursuant to a
plan of distribution selected by each of the Major Stockholders in their sole
discretion and may include up to one (1) underwritten offering and sale of
Registrable Shares during the Effectiveness Period; provided, however, that
Parent shall have the right to select any such
underwriter, which shall be (i) an underwriter of national reputation and (ii)
reasonably satisfactory to the Major Stockholders.
2. Procedures. Parent will use its best reasonable efforts to effect
the registration and the sale of such Registrable Shares in accordance with the
intended method of disposition thereof, and pursuant thereto Parent will as
expeditiously as possible:
2.1 prepare and file with the SEC the Shelf Registration
Statement with respect to such Registrable Shares and use its reasonable
best efforts to cause the Shelf Registration Statement to become
effective and remain effective in accordance with Section 1;
2.2 prepare and file with the SEC such amendments, post-effective
amendments, and supplements to the Shelf Registration Statement and the
prospectus used in connection therewith as may be necessary to keep the
Shelf Registration Statement effective for the Effectiveness Period and
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Shares covered by the Shelf Registration
Statement during such period in accordance with the intended methods of
disposition by the Major Stockholders thereof set forth in the Shelf
Registration Statement;
2.3 furnish to each Major Stockholder selling Registrable Shares
and the underwriters of the Registrable Shares being registered such
number of copies of the Shelf Registration Statement, each amendment and
supplement thereto, the prospectus included in the Shelf Registration
Statement, any documents incorporated by reference therein and such
other documents as such Major Stockholder or underwriters may reasonably
request in order to facilitate the disposition of the Registrable Shares
owned by such Major Stockholder or the sale of such securities by such
underwriters (it being understood that, subject to Section 3 and the
requirements of the Securities Act and applicable state securities laws,
Parent consents to the use of the prospectus and any amendment or
supplement thereto by each Major Stockholder and the underwriters in
connection with the offering and sale of the Registrable Shares covered
by the Shelf Registration Statement of which such prospectus, amendment
or supplement is a part);
2.4 use its reasonable best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the managing underwriter reasonably requests (or, in
the event the Shelf Registration Statement does not relate to an
underwritten offering, as the Major Stockholders may reasonably
request); use its reasonable best efforts to keep each such registration
or qualification (or exemption therefrom) effective during the
Effectiveness Period; and do any and all other acts and things which may
be reasonably necessary or advisable to enable the Major Stockholders to
consummate the disposition of the Registrable Shares owned by the Major
Stockholders in such jurisdictions (provided, however, that Parent will
not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this subparagraph or (B) consent to general service of process in any
such jurisdiction);
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2.5 promptly notify each Major Stockholder selling its
Registrable Shares and each underwriter and (if requested by any such
Person) confirm such notice in writing (A) when a prospectus or any
prospectus supplement or post-effective amendment has been filed and,
with respect to the Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of the issuance by
any state securities or other regulatory authority of any order
suspending the qualification or exemption from qualification of any of
the Registrable Shares under state securities or "blue sky" laws or the
initiation of any proceedings for that purpose, and (C) of the happening
of any event which makes any statement made in the Shelf Registration
Statement or related prospectus untrue or which requires the making of
any changes in the Shelf Registration Statement, prospectus or documents
so that they will 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, as
promptly as practicable thereafter, prepare and file with the SEC and
furnish a supplement or amendment to such prospectus so that, as
thereafter deliverable to the purchasers of such Registrable Shares,
such prospectus will not contain any untrue statement of a material fact
or omit a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
2.6 make generally available to Parent's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than thirty (30) days after the end of the
twelve (12) month period beginning with the first day of Parent's first
fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which earnings statement shall cover said twelve
(12) month period, and which requirement will be deemed to be satisfied
if Parent timely files complete and accurate information on Forms 10-Q,
10-K and 8-K under the Exchange Act and otherwise complies with Rule 158
under the Securities Act;
2.7 if requested by the managing underwriter or any Major
Stockholder selling Registrable Shares, promptly incorporate in a
prospectus supplement or post-effective amendment such information as
the managing underwriter or such Major Stockholder reasonably requests
to be included therein, including, without limitation, with respect to
the Registrable Shares being sold by such Major Stockholder, the
purchase price being paid therefor by the underwriters and any other
terms of the underwritten offering of the Registrable Shares to be sold
in such offering, and promptly make all required filings of such
prospectus supplement or post-effective amendment;
2.8 cooperate with each Major Stockholder and the managing
underwriter to facilitate the timely preparation and delivery of
certificates (which shall not bear any restrictive legends unless
required under applicable law) representing Registrable Shares sold
under the Shelf Registration Statement, and enable such securities to be
in such denominations and registered in such names as the managing
underwriter or such Major Stockholder may request and keep available and
make available to Parent's transfer agent prior to the effectiveness of
the Shelf Registration Statement a supply of such certificates;
2.9 promptly make available for inspection by any Major
Stockholder, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement,
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and any attorney, accountant or other agent or representative retained
by any such seller or underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and
properties of Parent (collectively, the "Records"), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause Parent's officers, directors and employees to
supply all information requested by any such Inspector in connection
with the Shelf Registration Statement; provided, however, that, unless
the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the Shelf Registration Statement or the
release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, Parent shall not be required to
provide any information under this Subsection 2.9 if (A) Parent
believes, after consultation with counsel for Parent, that to do so
would cause Parent to forfeit an attorney-client privilege that was
applicable to such information or (B) if either (1) Parent has requested
and been granted from the SEC confidential treatment of such information
contained in any filing with the SEC or documents provided
supplementally or otherwise or (2) Parent reasonably determines in good
faith that such Records are confidential and so notifies the Inspectors
in writing, unless prior to furnishing any such information with respect
to (A) or (B) such Major Stockholder requesting such information agrees
to enter into a confidentiality agreement in customary form and subject
to customary exceptions; and provided, further, that each Major
Stockholder agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to
Parent and allow Parent, at its expense, to undertake appropriate action
and to prevent disclosure of the Records deemed confidential;
2.10 furnish to each Major Stockholder and underwriter a signed
counterpart of (A) an opinion or opinions of counsel to Parent and (B) a
comfort letter or comfort letters from Parent's independent public
accountants, each in customary form and covering such matters of the
type customarily covered by opinions or comfort letters, as the case may
be, as such Major Stockholder or managing underwriter reasonably
requests;
2.11 cause the Registrable Shares included in the Shelf
Registration Statement to be listed on each securities exchange or
automated quotation system on which similar securities issued by Parent
are then listed;
2.12 in the case of an underwritten offering, cause such Parent
executive or executives as the managing underwriter may reasonably
request (including, if so requested Parent's chief executive officer and
chief financial officer) to attend any analyst and investment
presentations, including "roadshows," for up to three business days;
2.13 cooperate with each Major Stockholder and each underwriter
participating in the disposition of such Registrable Shares and their
respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. ("NASD");
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2.14 during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required
to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act;
2.15 notify each Major Stockholder promptly of any request by the
SEC for the amending or supplementing of the Shelf Registration
Statement or prospectus or for additional information;
2.16 prepare and file with the SEC promptly any amendments or
supplements to the Shelf Registration Statement or prospectus which, in
the opinion of counsel for Parent or the managing underwriter, is
required in connection with the distribution of the Registrable Shares;
2.17 enter into such agreements (including underwriting
agreements) as are customary in connection with an underwritten
registration; and
2.18 advise each Major Stockholder of such Registrable Shares,
promptly after it shall receive notice or obtain knowledge thereof, of
the issuance of any stop order by the SEC suspending the effectiveness
of the Shelf Registration Statement or the initiation or threatening of
any proceeding for such purpose and promptly use its reasonable best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order should be
issued.
3. Suspension of Dispositions. Each Major Stockholder agrees that,
upon receipt of any notice (a "Suspension Notice") from Parent of the happening
of any event of the kind described in Section 2.5(C) such Major Stockholder will
forthwith discontinue disposition of Registrable Shares until such Major
Stockholder's receipt of the copies of the supplemented or amended prospectus,
or until it is advised in writing (the "Advice") by Parent that the use of the
prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the prospectus, and,
if so directed by Parent, such Major Stockholder will deliver to Parent all
copies, other than permanent file copies then in such Major Stockholder's
possession, of the prospectus covering such Registrable Shares current at the
time of receipt of such notice. In the event Parent shall give any such notice,
the Effectiveness Period shall be extended by the number of days during the
period from and including the date of the giving of the Suspension Notice to and
including the date when each Major Stockholder covered by the Shelf Registration
Statement shall have received the copies of the supplemented or amended
prospectus or the Advice. Parent shall use its reasonable best efforts and take
such actions as are reasonably necessary to render the Advice as promptly as
practicable.
4. Registration Expenses. All expenses incident to Parent's
performance of or compliance with this Agreement including, without limitation,
all registration and filing fees, all fees and expenses associated with filings
required to be made with the NASD (including, if applicable, the fees and
expenses of any "qualified independent underwriter" as such term is defined in
Schedule E of the By-Laws of the NASD, and of its counsel), as may be required
by the rules and regulations of the NASD, fees and expenses of compliance with
securities or "blue sky" laws (including reasonable fees and disbursements of
counsel in connection with "blue sky" qualifications of the Registrable Shares),
rating agency fees, printing expenses (including
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expenses of printing certificates for the Registrable Shares in a form eligible
for deposit with Depository Trust Company and of printing prospectuses if the
printing of prospectuses is requested by a Major Stockholder), messenger and
delivery expenses, Parent's internal expenses (including without limitation all
salaries and expenses of its officers and employees performing legal or
accounting duties), the fees and expenses incurred in connection with any
listing of the Registrable Shares, fees and expenses of counsel for Parent and
its independent certified public accountants (including the expenses of any
special audit or "cold comfort" letters required by or incident to such
performance), securities acts liability insurance (if Parent elects to obtain
such insurance), the fees and expenses of any special experts retained by Parent
in connection with such registration, and the fees and expenses of other persons
retained by Parent and reasonable fees and expenses of one firm of counsel for
the Major Stockholders (which shall be selected by the mutual agreement of the
Major Stockholders) (all such expenses being herein called "Registration
Expenses") will be borne by Parent whether or not the Shelf Registration
Statement becomes effective; provided, however, that in no event shall
Registration Expenses include any underwriting discounts, commissions, or fees
attributable to the sale of the Registrable Shares or any counsel (except as
provided above), accountants, or other persons retained or employed by the Major
Stockholders, which expenses shall be borne by the Major Stockholders pro rata
on the basis of the number of shares so registered.
5. Rights Non-Transferable. The registration rights provided by this
Agreement are for the benefit solely of the Major Stockholders, are personal in
nature, and shall not be available to any subsequent holders of Registrable
Shares, except that the rights hereunder shall extend to any administrator,
guardian, receiver, executor or other person acting in a similar capacity on
behalf of such Major Stockholder or his estate and to any entity controlled by
such Major Stockholder or member of such Stockholders immediate family, or any
trust for the benefit of such persons, to whom such Majority Stockholder
transfers Registrable Shares.
6. Indemnification.
6.1 Parent agrees to indemnify and reimburse, to the fullest
extent permitted by law, each Major Stockholder, and each of its
employees, advisors, agents, representatives, partners, officers, and
directors and each Person who controls such Major Stockholder (within
the meaning of the Securities Act or the Exchange Act) and any agent or
investment advisor thereof (collectively, the "Seller Affiliates")
against any and all losses, claims, damages, liabilities, and expenses,
joint or several (including, without limitation, attorneys' fees and
disbursements except as limited by Section 6.3) based upon, arising out
of, related to or resulting from (i) any untrue or alleged untrue
statement of a material fact contained in the Shelf Registration
Statement, prospectus, or preliminary prospectus relating to the offer
and sale of Registrable Shares or any amendment thereof or supplement
thereto, or any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and (ii) any violation or alleged violation by Parent of the
Securities Act, the Exchange Act or any state securities or blue sky
laws in connection with the Shelf Registration Statement, prospectus or
preliminary prospectus or any amendment or supplement thereto, except
insofar as the same are made in reliance upon and in strict conformity
with information furnished in writing to Parent by a Major Stockholder
or any Seller Affiliate for use therein. The reimbursements required by
this Section 6.1 will be
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made by periodic payments during the course of the investigation or
defense, as and when bills are received or expenses incurred.
6.2 In connection with the Shelf Registration Statement in which
a Major Stockholder is participating, each such Major Stockholder will
furnish to Parent in writing such information as Parent reasonably
requests for use in connection with any the Shelf Registration Statement
or prospectus and, to the fullest extent permitted by law, each such
Major Stockholder will indemnify Parent and its directors and officers
and each Person who controls Parent (within the meaning of the
Securities Act or the Exchange Act) against any and all losses, claims,
damages, liabilities, and expenses (including, without limitation,
reasonable attorneys' fees and disbursements except as limited by
Section 6.3) resulting from (i) any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration
Statement, prospectus, or any preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such
untrue statement or alleged untrue statement or omission or alleged
omission is contained in any information or affidavit so furnished
electronically or in writing by such Major Stockholder or any of its
Seller Affiliates or their respective representatives specifically for
inclusion in the Shelf Registration Statement and (ii) any violation or
alleged violation by the Major Stockholders of the Securities Act, the
Exchange Act or any state securities or blue sky laws in connection with
the Shelf Registration Statement, prospectus or preliminary prospectus
or any amendment or supplement thereto; provided that the obligation to
indemnify will be several, not joint and several, among such Major
Stockholders, and the liability of each such Major Stockholder will be
in proportion to, and, provided, further, that such liability will be
limited to, the proceeds received by such Major Stockholder from the
sale of Registrable Shares pursuant to the Shelf Registration Statement;
provided, however, that, with respect to clause (i) above, such Major
Stockholder shall not be liable in any such case to the extent that
prior to the filing of any the Shelf Registration Statement or
prospectus or amendment thereof or supplement thereto, such Major
Stockholder has furnished in writing to Parent information expressly for
use in the Shelf Registration Statement or prospectus or any amendment
thereof or supplement thereto which corrected or made not misleading
information previously furnished to Parent.
6.3 Any Person entitled to indemnification hereunder will (A)
give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to
give such notice shall not limit the rights of such Person) and (B)
unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the
indemnified party; provided, however, that any person entitled to
indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person
unless (X) the indemnifying party has agreed to pay such fees or
expenses, or (Y) the indemnifying party shall have failed to assume the
defense of such claim and employ counsel reasonably satisfactory to such
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person. If such defense is not assumed by the indemnifying party as
permitted hereunder, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably withheld). If such
defense is assumed by the indemnifying party pursuant to the provisions
hereof, such indemnifying party shall not settle or otherwise compromise
the applicable claim unless (1) such settlement or compromise contains a
full and unconditional release of the indemnified party or (2) the
indemnified party otherwise consents in writing. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with
respect to such claim, and one additional local counsel, if applicable,
unless in the reasonable judgment of any indemnified party, a conflict
of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees and
disbursements of such additional counsel or counsels.
6.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6.1 or Section 6.2
are unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, claims, damages, liabilities, or expenses (or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, liabilities, or expenses (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the indemnified
party in connection with the actions which resulted in the losses,
claims, damages, liabilities or expenses as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and 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 indemnified party,
and the parties' relative intent, knowledge, access to information and
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 6.4 were determined by pro rata
allocation (even if Major Stockholders or any underwriters or all of
them were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable
considerations referred to in this Section 6.4. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities, or expenses (or actions 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, except as provided in Section 6.3, defending any
such action or claim. Notwithstanding the provisions of this Section
6.4, no Major Stockholder shall be required to contribute an amount
greater than the dollar amount by which the net proceeds received by
such Major Stockholder with respect to the sale of any Registrable
Shares exceeds the amount of damages which such Major Stockholder has
otherwise been required to pay by reason of any and all untrue or
alleged untrue statements of material fact or omissions or alleged
omissions of material fact made in the Shelf Registration Statement,
prospectus or preliminary prospectus or any amendment thereof or
supplement thereto related to such sale of Registrable Shares. No person
guilty of
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fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Major
Stockholders obligations in this Section 6.4 to contribute shall be
several in proportion to the amount of Registrable Shares registered by
them and not joint.
6.5 The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any
officer, director, or controlling Person of such indemnified party and
will survive the transfer of securities.
7. Current Public Information. With a view to making available to the
Major Stockholders the benefits of certain rules and regulations of the SEC that
may at any time permit the sale of securities to the public without
registration, during the two year period commencing on the date of this
Agreement, Parent agrees to use its reasonable best efforts to:
(a) make and keep adequate current public information available,
as those terms are defined in Rule 144 under the Securities Act;
(b) file with the SEC in a timely manner all reports and other
documents required of Parent under the Securities Act and the Exchange
Act;
(c) furnish to any Major Stockholder, so long as such Major
Stockholder owns any Registrable Shares, upon request by such Major
Stockholder, (i) a written statement by Parent that it has complied with
the reporting requirements of Rule 144, and of the Securities Act and
the Exchange Act, (ii) a copy of the most recent annual or quarterly
report of Parent and (iii) such other reports and documents of Parent
and other information in the possession of or reasonably obtainable by
Parent as a Major Stockholder may reasonably request in availing itself
of any rule or regulation of the SEC allowing a Major Stockholder to
sell any such securities without registration.
8. Beneficiaries. The provisions of this Agreement are for the
benefit of the Major Stockholders and Parent, and no other person shall acquire
or have any rights under or by virtue of this Agreement except as set forth in
Sections 5 and 6.
9. Notices. All communications provided for hereunder shall be in
writing and sent by certified mail, return receipt requested, and (a) if
addressed to a Major Stockholder, addressed to such party at the address set
forth under the signature hereto of such Major Stockholder or at such other
address as the Major Stockholder shall have furnished to Parent in writing, (b)
if addressed to any other holder of Stock Consideration, at the address that
such holder shall have furnished to Parent in writing, or, until any such other
holder so furnishes to Parent an address, then to and at the address of the last
holder of such securities who has furnished an address to Parent or (c) if
addressed to Parent, addressed to it in the manner set forth in the Merger
Agreement, or at such other address, or to the attention of such other officer,
as Parent shall have furnished to the Major Stockholder. Any communication made
in accordance with this Section 9 shall be deemed received two business days
after deposit in the mail with postage prepaid.
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10. Governing Law; Forum. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the laws of the state of Delaware, without regard to the principles of conflict
of laws. Each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any federal court located in the state of Delaware or
of any state court located in the state of Delaware (the "Delaware Courts") in
the event any dispute arises out of this Agreement or the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
Delaware Court and (c) agrees that it will not bring any action relating to this
Agreement or the transactions contemplated by this Agreement in any court other
than a Delaware Court.
11. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
12. Defined Terms. For the purposes of this Agreement, the following
terms shall have the following meanings:
"Registrable Shares" means at any time the Stock Consideration and any
capital stock received in respect of such shares by reason of any
reclassification, combination, recapitalization, stock split, stock dividend,
subdivision, exchange of shares, or other extraordinary transaction; provided,
however, that Registrable Shares shall not include any shares (i) the sale of
which has been registered pursuant to the Securities Act and which shares have
been sold pursuant to such registration or (ii) which have been sold pursuant to
Rule 145 of the SEC under the Securities Act.
"Registration Statement" means a registration statement on Form S-3 (or,
to the extent Form S-3 is not available to Parent, then Form S-1).
13. Severability. In case any provision in this Agreement shall be
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and the remaining provisions shall not in any way be affected or
impaired thereby.
14. No Waivers; Amendments.
14.1 No failure or delay on the part of Parent or any Major
Stockholder in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to Parent or any Major Stockholder at law
or in equity or otherwise.
14.2 Any provision of this Agreement may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by
Parent and each of the Major Stockholders.
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15. Effectiveness. This Agreement and the provisions hereof shall
terminate upon a termination of the Merger Agreement.
[Signature page follows]
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In Witness Whereof, the parties have executed this Registration Rights
Agreement as of the day and year first written above.
TEKTRONIX, INC.
By: /S/ JAMES F. DALTON
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James F. Dalton
Vice President, General Counsel
and Secretary
MAJOR STOCKHOLDERS
/S/ ELIE S. AKILIAN
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Name: Elie S. Akilian
ADDRESS:
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/S/ SAMUEL S. SIMONIAN
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Name: Samuel S. Simonian
ADDRESS:
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