Registration Rights Agreement (2005)Full Document 

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REGISTRATION RIGHTS AGREEMENT
dated as of
March 8, 2005
among
SMART MODULAR TECHNOLOGIES , INC.
MODULAR, L.L.C.
and
CERTAIN OTHER PERSONS NAMED HEREIN

 


 

TABLE OF CONTENTS
         
    Page
ARTICLE 1
       
Definitions
       
 
       
Section 1.01. Definitions
    1  
 
       
ARTICLE 2
       
Registration Rights
       
 
       
Section 2.01. Demand Registration
    5  
Section 2.02. Piggyback Registration
    7  
Section 2.03. Registration Procedures
    9  
Section 2.04. Indemnification by the Company
    12  
Section 2.05. Indemnification by Participating Shareholders
    13  
Section 2.06. Conduct of Indemnification Proceedings
    14  
Section 2.07. Contribution
    15  
Section 2.08. Participation in Public Offering
    16  
Section 2.09. Other Indemnification
    16  
Section 2.10. Cooperation by the Company
    17  
Section 2.11. No Transfer of Registration Rights
    17  
 
       
ARTICLE 3
       
Certain Covenants and Agreements
       
 
       
Section 3.01. Reports
    17  
Section 3.02. Limitations on Subsequent Registration Rights
    18  
Section 3.03. Conflicting Agreements
    18  
 
       
ARTICLE 4
       
Miscellaneous
       
 
       
Section 4.01. Binding Effect; Assignability; Benefit
    19  
Section 4.02. Notices
    19  
Section 4.03. Waiver; Amendment; Termination
    20  
Section 4.04. Fees and Expenses
    20  
Section 4.05. Governing Law
    20  
Section 4.06. Jurisdiction
    20  
Section 4.07. WAIVER OF JURY TRIAL
    21  
Section 4.08. Specific Enforcement
    21  
Section 4.09. Counterparts; Effectiveness
    21  
Section 4.10. Entire Agreement
    21  

 


 

         
    Page
Section 4.11. Captions
    21  
Section 4.12. Severability
    21  
Exhibit A: Joinder Agreement
ii 

 


 

REGISTRATION RIGHTS AGREEMENT
     Registration Rights Agreement (this “Agreement”) dated as of March 8, 2005 among SMART Modular Technologies (WWH), Inc., an exempted company organized under the laws of the Cayman Islands (the “Company”), Modular, L.L.C., a Delaware limited liability company (“Modular”), and such additional persons as may sign joinder agreements to this Agreement.
WITNESSETH:
     WHEREAS, Modular is currently the owner of all of the Ordinary Shares of the Company;
     WHEREAS, the parties hereto desire to enter into this Agreement to govern certain of their rights, duties and obligations;
     NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
Definitions
     Section 1.01. Definitions. (a) The following terms, as used herein, have the following meanings:
     “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person, provided that no securityholder of the Company shall be deemed an Affiliate of any other securityholder solely by reason of any investment in the Company. For the purpose of this definition, the term “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
     “Aggregate Ownership” means, with respect to any Shareholder or group of Shareholders, and with respect to any class of Company Securities, the total amount of such class of Company Securities “beneficially owned” (as such term is defined in Rule 13d-3 of the Exchange Act) (without duplication) by such Shareholder or group of Shareholders as of the date of such calculation, calculated on a Fully-Diluted basis.

 


 

     “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in San Francisco, California are authorized by law to close.
     “Company Securities” means (i) the Ordinary Shares, (ii) securities convertible into or exchangeable for Ordinary Shares, (iii) any other equity or equity-linked security issued by the Company and (iv) options, warrants or other rights to acquire Ordinary Shares or any other equity or equity-linked security issued by the Company.
     “Exchange Act” means the Securities Exchange Act of 1934, as amended.
     “First Public Offering” means the first Public Offering after the date hereof.
     “Fully-Diluted” means, with respect to any class of Company Securities, all outstanding shares and all shares issuable in respect of securities convertible into or exchangeable for such shares, all stock appreciation rights, options, warrants and other rights to purchase or subscribe for such Company Securities or securities convertible into or exchangeable for such Company Securities.
     “LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement, dated as of June 15, 2004, of Modular.
     “NASD” means the National Association of Securities Dealers, Inc.
     “Ordinary Shares” means the Ordinary Shares, par value $0.000166667 per share, of the Company and any stock into which such Ordinary Shares may thereafter be converted or changed.
     “Person” means an individual, corporation, limited liability company, partnership, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
     “Public Offering” means an underwritten public offering of Registrable Securities of the Company pursuant to an effective registration statement under the Securities Act.

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