Registration Rights Agreement - Apple Computer Inc. and Microsoft Corp.
REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 11, 1997
BETWEEN
APPLE COMPUTER, INC.
AND
MICROSOFT CORPORATION
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TABLE OF CONTENTS
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PAGE
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1. Demand Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. Obligations of the Company . . . . . . . . . . . . . . . . . . . . . . . .2
3. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
4. Indemnification and Contribution . . . . . . . . . . . . . . . . . . . . .7
5. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
6. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7. Entire Agreement; Amendments . . . . . . . . . . . . . . . . . . . . . . 10
8. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 10
9. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
10. Termination of Company Obligation. . . . . . . . . . . . . . . . . . . . 11
11. No Transfer or Assignment of Registration Rights . . . . . . . . . . . . 11
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is entered
into as of this 11th day of August, 1997, between Apple Computer, Inc., a
California corporation (the "COMPANY"), and Microsoft Corporation, a
Washington corporation (the "PURCHASER").
WHEREAS, the Purchaser intends to purchase shares of Preferred
Stock, no par value, of the Company pursuant to the terms and conditions of a
Preferred Stock Purchase Agreement dated as of August 5, 1997 (the "PURCHASE
AGREEMENT"); and
WHEREAS, the Purchase Agreement requires that the Company enter
into this Agreement with the Purchaser;
NOW, THEREFORE, in consideration of the foregoing, the parties to
this Agreement hereby agree as follows:
1. DEMAND REGISTRATION. If, (i) at any time after August 11,
2000, or (ii) prior to August 11, 2000 in the event of a CHANGE OF CONTROL or
INSOLVENCY PROCEEDINGS as those terms are defined in the Purchase Agreement,
the Purchaser shall request the Company in writing to register under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), any shares of the
Common Stock, no par value, of the Company (the "COMMON STOCK") issuable upon
conversion of the Series A Non-Voting Convertible Preferred Stock, no par
value (the "PREFERRED STOCK") and, if required by the Securities and Exchange
Commission (the "SEC"), the shares of Preferred Stock owned by the Purchaser
(the shares of Common Stock and, if applicable, Preferred Stock subject to
such request being herein referred to as the "SUBJECT STOCK"), the Company
shall use its reasonable best efforts to cause the shares of Subject Stock
specified in such request to be registered as soon as reasonably practicable
so as to permit the sale thereof, and in connection therewith shall prepare
and file a Form S-3 registration statement or such other form as is then
available (or any successor form of registration statement to such Form S-3
or other available registration statement) with the SEC under the Securities
Act to effect such registration; PROVIDED, HOWEVER, that each such request
shall (i) specify the number of shares of Subject Stock intended to be
offered and sold, (ii) express the present intention of the Purchaser to
offer or cause the offering of such shares of Subject Stock for distribution,
(iii) describe the nature or method of the proposed offer and sale thereof,
and (iv) contain the undertaking of the Purchaser to provide all such
information and materials and take all such action as may be required in
order to permit the Company to comply with all applicable requirements of the
SEC and to obtain any desired acceleration of the effective date of such
registration statement. The Purchaser shall not be entitled to request more
than one demand registration statement under this Agreement in any 12-month
period, and the Purchaser shall not be entitled to more than a total of two
requests for demand registration statements pursuant to this Agreement. The
Company agrees not to grant to any other person registration rights pursuant
to which such person would have the right to register shares of Common Stock
on a registration statement filed by the Company pursuant to the exercise of
Purchaser's rights under this Agreement.
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2. OBLIGATIONS OF THE COMPANY.
(a) Whenever the Company is required by the provisions of
this Agreement to use its reasonable best efforts to effect the registration
of any Common Stock under the Securities Act, the Company shall (i) prepare
and, as soon as reasonably possible, file with the SEC a registration
statement with respect to the shares of Subject Stock, and shall use its
reasonable best efforts to cause such registration statement to become
effective and to remain effective until the earlier of the sale of the shares
of Subject Stock so registered or 90 days subsequent to the effective date of
such registration; (ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be reasonably necessary to make and to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all
securities proposed to be registered pursuant to such registration statement
until the earlier of the sale of the shares of Subject Stock so registered or
90 days subsequent to the effective date of such registration statement; and
(iii) take all such other action either necessary or desirable to permit the
shares of Subject Stock held by the Purchaser to be registered and disposed
of in accordance with the method of disposition described herein.
(b) Notwithstanding the foregoing, if the Company shall
furnish to the Purchaser a certificate signed by its Chairman, Chief
Executive Officer or Chief Financial Officer stating that (i) filing a
registration statement or maintaining effectiveness of a current registration
statement would have a material adverse effect on the Company or its
stockholders in relation to any material financing, acquisition or other
corporate transaction, and the Company has determined in good faith that such
disclosure is not in the best interests of the Company and its shareholders,
or (ii) the Company has determined in good faith that the filing or
maintaining effectiveness of a current registration statement would require
disclosure of material information the Company has a valid business purpose
of retaining as confidential, the Company shall be entitled to postpone
filing or suspend the use by the Purchaser of the registration statement, as
the case may be, for a reasonable period of time, but not in excess of an
aggregate of 90 calendar days in any 360 day period. If the Company
furnishes a notice under this paragraph, the Company shall extend the period
during which such registration statement shall be maintained effective as
provided in Section 2(a) hereof by the number of days during the period from
and including the date of the giving of notice under this paragraph to the
date when sales under the registration statement may recommence.
(c) In connection with any registration statement, the
following provisions shall apply:
(1) The Company shall furnish to the Purchaser, prior to
the filing thereof with the SEC, a copy of any registration statement, and
each amendment thereof and each amendment or supplement, if any, to the
prospectus included therein and shall use its reasonable best efforts to
reflect in each such document, when so filed with the SEC, such comments as
the Purchaser and its counsel reasonably may propose.
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(2) The Company shall take such action as may be
necessary so that (i) any registration statement and any amendment thereto
and any prospectus forming part thereof and any amendment or supplement
thereto (and each report or other document incorporated therein by
reference) complies in all material respects with the Securities Act and the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and the
respective rules and regulations thereunder, (ii) any registration statement
and any amendment thereto does not, when it becomes effective, contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (iii) any prospectus forming part of any registration
statement, and any amendment or supplement to such prospectus, does not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) (A) The Company shall advise the Purchaser and, if
requested by the Purchaser, confirm such advice in writing:
(i) when a registration statement and any
amendment thereto has been filed with the SEC and when the registration
statement or any post-effective amendment thereto has become effective; and
(ii) of any request by the SEC for amendments
or supplements to the registration statement or the prospectus included
therein or for additional information.
(B) The Company shall advise the Purchaser and, if
requested by Purchaser, confirm such advice in writing of:
(i) the issuance by the SEC of any stop order
suspending effectiveness of the registration statement or the initiation of
any proceedings for that purpose;
(ii) the receipt by the Company of any
notification with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and
(iii) the happening of any event that requires
the making of any changes in the registration statement or the prospectus so
that, as of such date, the registration statement and the prospectus do not
contain an untrue statement of a material fact and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in the light of the
circumstances under which they were made) not misleading (which advice shall
be accompanied by an instruction to suspend the use of the prospectus
relating to the Subject Stock until the requisite changes have been made).
(4) The Company shall use its reasonable best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of the registration statement relating to the
Subject Stock at the earliest possible time.
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(5) The Company shall furnish to Purchaser with respect
to the registration statement relating to the Subject Stock, without charge,
at least one copy of such registration statement and any post-effective
amendment thereto, including financial statements and schedules, and all
reports, other documents and exhibits (including those incorporated by
reference).
(6) The Company shall furnish to the Purchaser such
number of copies of any prospectus (including any preliminary prospectus and
any amended or supplemented prospectus) relating to the Subject Stock, in
conformity with the requirements of the Securities Act, as the Purchaser may
reasonably request in order to effect the offering and sale of the shares of
Subject Stock to be offered and sold, but only while the Company shall be
required under the provisions hereof to cause the registration statement to
remain current, and the Company consents (except during the continuance of
any event described in Sections 2(b) or 2(c)(3)(B)(iii)) to the use of the
Prospectus or any amendment or supplement thereto by the Purchaser in
connection with the offering and sale of the Subject Stock covered by the
Prospectus or any amendment or supplement thereto.
(7) Prior to any offering of Subject Stock pursuant to
any registration statement, the Company shall use its reasonable best efforts
to register or qualify the shares of Subject Stock covered by such
registration statement under the securities or blue sky laws of such states
as the Purchaser shall reasonably request, maintain any such registration or
qualification current until the earlier of the sale of the shares of Subject
Stock so registered or 90 days subsequent to the effective date of the
registration statement, and do any and all other acts and things either
reasonably necessary or advisable to enable the Purchaser to consummate the
public sale or other disposition of the shares of Subject Stock in
jurisdictions where the Purchaser desires to effect such sales or other
disposition; provided, however, that the Company shall not be required to
take any action that would subject it to the general jurisdiction of the
courts of any jurisdiction in which it is not so subject or to qualify as a
foreign corporation in any jurisdiction where the Company is not so
qualified.
(8) In connection with any offering of shares of Subject
Stock registered pursuant to this Agreement, the Company shall (x) furnish
the Purchaser, at the Company's expense, on a timely basis with certificates
free of any restrictive legends representing ownership of the shares of
Subject Stock being sold in such denominations and registered in such names
as the Purchaser shall request and (y) instruct the transfer agent and
registrar of the Subject Stock to release any stop transfer orders with
respect to the shares of Subject Stock being sold.
(9) Upon the occurrence of any event contemplated by
paragraph 2(c)(3)(B)(iii) above, the Company shall promptly prepare a
post-effective amendment to any registration statement or an amendment or
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Subject Stock included
therein, the prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which
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they were made, not misleading. If the Company notifies Purchaser of the
occurrence of any event contemplated by Sections 2(b) or 2(c)(3)(B)(iii)
above, Purchaser shall suspend the use of the prospectus until the requisite
changes to the prospectus have been made.
(10) The Company shall make generally available to its
security holders or otherwise provide in accordance with Section 11(a) of the
Securities Act as soon as practicable after the effective date of the
applicable registration statement an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
(11) The Company shall, if requested, promptly include
or incorporate in a prospectus supplement or post-effective amendment to a
registration statement, such information as the managing underwriters
administering an underwritten offering of the Subject Stock registered
thereunder reasonably request to be included therein and to which the Company
does not reasonably object and shall make all required filings of such
prospectus supplement or post-effective amendment as soon as practicable
after they are notified of the matters to be included or incorporated in such
prospectus supplement or post-effective amendment.
(12) If requested, the Company shall enter into an
underwriting agreement with a nationally recognized investment banking firm
or firms containing representations, warranties, indemnities and agreements
then customarily included by an issuer in underwriting agreements with
respect to secondary underwritten distributions, and in connection therewith,
if an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those
set forth in Section 4 (or such other provisions and procedures acceptable to
the managing underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 4.
(13) In the event Purchaser proposes to conduct an
underwritten public offering, then the Company shall: (i) make reasonably
available for inspection by Purchaser and its counsel, any underwriter
participating in the distribution pursuant to such registration statement,
and any attorney, accountant or other agent retained by Purchaser or any such
underwriter, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, as is customary
for similar due diligence examinations; PROVIDED, HOWEVER, that any
information so provided that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information shall be
kept confidential by Purchaser, such underwriter, or any such, attorney,
accountant or agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information becomes available to
the public generally or through a third party without an accompanying
obligation of confidentiality; (ii) obtain opinions of counsel to the Company
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing underwriters)
addressed to Purchaser and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by Purchaser and
underwriters (it being agreed that the matters to be covered by such opinion
or written statement by such counsel delivered in connection with such
opinions shall include in customary form, without limitation, as of the date
of the opinion and as of the effective date of the registration statement or
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most recent post-effective amendment thereto, as the case may be, the absence
from such registration statement and the prospectus included therein, as then
amended or supplemented, including the documents incorporated by reference
therein, of an untrue statement of a material fact or the omission to state
therein a 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; (iii) obtain "cold comfort" letters and updates
thereof from the independent public accountants of the Company (and, if
necessary, any other independent public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
registration statement), addressed to the underwriters in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; (iv) deliver such documents
and certificates as may be reasonably requested by Purchaser and the managing
underwriters, and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company. The foregoing
actions set forth in clauses (ii), (iii) and (iv) of this Section 2(c)(13)
shall be performed at each closing under any underwritten offering to the
extent required thereunder, but, in any event, need not be performed by the
Company more than twice.
(14) The Company will use its best efforts to cause the
Subject Stock to be admitted for quotation on the Nasdaq National Market or
other stock exchange or trading system on which the Common Stock primarily
trades on or prior to the effective date of any registration statement
hereunder.
(d) With a view to making available the benefits of certain
rules and regulations of the SEC which may at any time permit the sale of the
Subject Stock to the public without registration, the Company agrees to:
(e) Make and keep public information available, as those
terms are understood and defined in Rule 144 (or any successor provision)
under the Securities Act, at all times;
(f) During the term of this Agreement, to furnish to the
Purchaser upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, (ii) a copy of the
most recent annual or quarterly report of the Company, and (iii) such other
reports and documents of the Company as the Purchaser may reasonably request
in availing itself of any rule or regulation of the SEC allowing the
Purchaser to sell any such securities without registration.
3. EXPENSES. The Company shall pay all fees and expenses
incurred in connection with the performance of its obligations under Sections
1 and 2 hereof, including, without limitation, all SEC and blue sky
registration and filing fees, printing expenses, transfer agents' and
registrars' fees, and the reasonable fees and disbursements of the Company's
outside counsel and independent accountants incurred in connection with the
preparation, filing and amendment of any registration statement authorized by
this Agreement (but excluding underwriters' and brokers' discounts and
commissions).
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4. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. In the case of any
offering registered pursuant to this Agreement, the Company agrees to
indemnify and hold the Purchaser, each underwriter (if any) of shares of
Subject Stock under such registration statements and each person who controls
any of the foregoing within the meaning of Section 15 of the Securities Act
harmless against any and all losses, claims, damages or liabilities to which
they or any of them may become subject under the Securities Act or any other
statute or common law or otherwise, and to reimburse them, from time to time
upon request, for any legal or other expenses incurred by them in connection
with investigating any claims and defending any actions, insofar as any such
losses, claims, damages, liabilities or actions shall arise out of or shall
be based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the registration statement (or any amendment
thereto) relating to the sale of such shares of Subject Stock, including all
documents incorporated therein by reference, or 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 (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus (as amended or supplemented if the Company shall have
filed with the SEC any amendment thereof or supplement thereto), if used
prior to the effective date of such registration statement or contained in
the prospectus (as amended or supplemented if the Company shall have filed
with the SEC any amendment thereof or supplement thereto), if used within the
period during which the Company shall be required to keep the registration
statement to which such prospectus relates current pursuant to the terms of
this Agreement, or the omission or alleged omission to state therein (if so
used) a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the indemnification agreement contained in this
Section 4(a) shall not apply to such losses, claims, damages, liabilities or
actions which shall arise from the sale of shares of Subject Stock to any
person if such losses, claims, damages, liabilities or actions shall arise
out of or shall be based upon any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission shall have been (x) made in reliance upon and in conformity with
information furnished in writing to the Company by the Purchaser or any such
underwriter specifically for use in connection with the preparation of the
registration statement or any preliminary prospectus or prospectus contained
in the registration statement or any such amendment thereof or supplement
thereto, or (y) made in any preliminary prospectus, and the prospectus
contained in the registration statement as declared effective or in the form
filed by the Company with the SEC pursuant to Rule 424 under the Securities
Act shall have corrected such statement or omission and a copy of such
prospectus shall not have been sent or given to such person at or prior to
the confirmation of such sale to him.
(b) INDEMNIFICATION BY THE PURCHASER. In the case of each
offering registered pursuant to this Agreement, the Purchaser agrees, in the
same manner and to the same extent as set forth in Section 4(a) of this
Agreement to indemnify and hold harmless the Company and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities
Act, its directors and those officers of the Company who shall have signed
any such registration statement
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with respect to any statement in or omission from such registration statement
or any preliminary prospectus (as amended or as supplemented, if amended or
supplemented as aforesaid) or prospectus contained in such registration
statement (as amended or as supplemented, if amended or supplemented as
aforesaid), if such statement or omission shall have been made in reliance
upon and in conformity with information furnished in writing to the Company
by the Purchaser specifically for use in connection with the preparation of
such registration statement or any preliminary prospectus or prospectus
contained in such registration statement or any such amendment thereof or
supplement thereto.
(c) NOTICE OF CLAIMS. Each party indemnified under Section
4(a) or Section 4(b) of this Agreement shall, promptly after receipt of
notice of the commencement of any action against such indemnified party in
respect of which indemnity may be sought, notify the indemnifying party in
writing of the commencement thereof, enclosing a copy of all papers served on
such indemnified party. The omission of any indemnified party so to notify
an indemnifying party of any such action shall not relieve the indemnifying
party from any liability in respect of such action which it may have to such
indemnified party on account of the indemnity agreement contained in Section
4(a) or Section 4(b) of this Agreement, unless the indemnifying party was
prejudiced by such omission, and in no event shall relieve the indemnifying
party from any other liability which it may have to such indemnified party.
In case any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party; PROVIDED, that if any indemnified party or parties
reasonably determine that there may be legal defenses available to such
indemnified party that are different from or in addition to those available
to such indemnifying party or that representation of such indemnifying party
and any indemnified party by the same counsel would present a conflict of
interest, then such indemnifying party shall not be entitled to assume such
defense. If an indemnifying party is not entitled to assume the defense of
such action as a result of the proviso to the preceding sentence, counsel for
such indemnifying party shall be entitled to conduct the defense of such
indemnifying party and counsel for the indemnified party shall be entitled to
conduct the defense of such indemnified party or parties. If an indemnifying
party assumes the defense of an action in accordance with and as permitted by
the provisions of this paragraph, such indemnifying party shall not be liable
to such indemnified party under Section 4(a) or Section 4(b) of this
Agreement for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. In no event shall the indemnifying party
be liable for the fees and expenses of more than one counsel (in addition to
local counsel) separate from its own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnity provided for in this Section 4 is for
any reason held to be unavailable to the indemnified parties although
applicable in accordance with its terms, the Company and Purchaser shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature
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contemplated by said indemnity incurred by the Company and Purchaser, as
incurred; PROVIDED that 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 that was not guilty of such fraudulent
misrepresentation. As between the Company, on the one hand, and Purchaser,
on the other hand, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of the Company, on the one hand, and the Purchaser, on the
other hand, with respect to the statements or omissions which resulted in
such loss, liability, claim, damage or expense, or action in respect thereof,
as well as any other relevant equitable considerations. The relative fault
of the Company, on the one hand, and of the Purchaser, on the other hand,
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, on the one hand, or by or on behalf of the Purchaser, on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Purchaser agree, that it would not be just and equitable if
contribution pursuant to this Section 4 were to be determined by pro rata
allocation or by any other method of allocation that does not take into
account the relevant equitable considerations. For purposes of this Section
4(d), each person who controls the Company or the Purchaser within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as Purchaser or the Company, as the case may be. No party shall
be liable for contribution with respect to any action, suit, proceeding or
claim settled without its written consent.
(e) The Company may require, as a condition to entering into
any underwriting agreement with respect to the registration of Subject Stock,
that the Company shall have received an undertaking reasonably satisfactory
to it from each underwriter named in any such underwriting agreement,
severally and not jointly, to comply with the provisions of paragraphs (a)
through (d) of this Section 4.
(f) The obligations of the Company and Purchaser under this
Section 4 shall survive the completion of any offering of Subject Stock in a
registration statement.
5. NOTICES. Any notice or other communication given under this
Agreement shall be sufficient if in writing and sent by registered or
certified mail, return receipt requested, postage prepaid, to a party at its
address set forth below (or at such other address as shall be designated for
such purpose by such party in a written notice to the other party hereto):
(a) if to the Company, to it at:
One Infinite Loop
Cupertino, CA 95014
Attention: Chief Financial Officer
with a copy addressed as set forth above but to the attention of the General
Counsel;
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with a copy to:
Larry W. Sonsini
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94306
(b) if to the Purchaser, to it at:
Microsoft Corporation
One Microsoft Way
Building 8
North Office 2211
Redmond, WA 98052
Attn: Attention: Chief Financial Officer
with a copy addressed as set forth above but to the attention of Senior Vice
President, Law and Corporate Affairs, with a copy to:.
Richard B. Dodd
Preston Gates & Ellis LLP
5000 Columbia Center
701 Fifth Avenue
Seattle, WA 98104-7078
All such notices and communications shall be effective when received by the
addressee.
6. GOVERNING LAW. This Agreement shall be governed in all
respects by the internal laws of the State of California as applied to
contracts entered into solely between residents of, and to be performed
entirely within, such state, and without reference to principles of conflicts
of laws or choice of laws.
7. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard
to the subject matter hereof and supersedes all prior agreements and
understandings among the parties relating to the subject matter hereof.
Neither this Agreement nor any term hereof may be amended, waived, discharged
or terminated other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or termination is
sought.
8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
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9. SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restriction of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
10. TERMINATION OF COMPANY OBLIGATION. All registration rights
provided hereunder shall terminate upon the earlier to occur of (a) the fifth
anniversary of the date of this Agreement or (b) such time as, in the
written opinion of counsel to the Company, the Purchaser is able to sell all
of its Common Stock without registration under the Securities Act or any
successor provision thereto during any single three-month period.
11. NO TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The
registration rights set forth in this Agreement shall not be transferable or
assignable by the Purchaser, except to (i) any person or group approved in
writing by the Company or (ii) to a corporation of which the Purchaser owns
not less than 50% of the voting power entitled to be cast in the election of
directors; or (iii) any person to whom Purchaser has satisfied the
requirements of Section 8.1 (Right of First Refusal) of the Purchase
Agreement and the Company has waived or failed to exercise its purchase
rights; provided, however, that each transferee agrees in writing to be
subject to all the terms and conditions of this Agreement and the Purchase
Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective authorized officers as of the date set
forth above.
APPLE COMPUTER, INC.
By: /s/ John B. Douglas, III
---------------------------------------
Name: John B. Douglas, III
-------------------------------------
Title: Senior Vice President
------------------------------------
MICROSOFT CORPORATION
By: /s/ Greg Maffei
---------------------------------------
Name: Greg Maffei
-------------------------------------
Title: Chief Financial Officer
------------------------------------
12