{"id":43862,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/registration-rights-agreement-apple-computer-inc-and-microsoft.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"registration-rights-agreement-apple-computer-inc-and-microsoft","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/registration-rights-agreement-apple-computer-inc-and-microsoft.html","title":{"rendered":"Registration Rights Agreement &#8211; Apple Computer Inc. and Microsoft Corp."},"content":{"rendered":"<pre>\n\n\n                            REGISTRATION RIGHTS AGREEMENT\n\n                             DATED AS OF AUGUST 11, 1997\n\n                                       BETWEEN\n\n                                 APPLE COMPUTER, INC.\n\n                                         AND\n\n                                MICROSOFT CORPORATION\n\n\n\n                                  TABLE OF CONTENTS\n\n\n\n                                                                                PAGE\n                                                                                ----\n                                                                           \n1.        Demand Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . .1\n\n2.        Obligations of the Company . . . . . . . . . . . . . . . . . . . . . . . .2\n\n3.        Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6\n\n4.        Indemnification and Contribution . . . . . . . . . . . . . . . . . . . . .7\n\n5.        Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9\n\n6.        Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10\n\n7.        Entire Agreement; Amendments . . . . . . . . . . . . . . . . . . . . . . 10\n\n8.        Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 10\n\n9.        Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11\n\n10.       Termination of Company Obligation. . . . . . . . . . . . . . . . . . . . 11\n\n11.       No Transfer or Assignment of Registration Rights . . . . . . . . . . . . 11\n\n                                    i\n\n\n\n\n                            REGISTRATION RIGHTS AGREEMENT\n\n          This REGISTRATION RIGHTS AGREEMENT (this 'AGREEMENT') is entered \ninto as of this 11th day of August, 1997, between Apple Computer, Inc., a \nCalifornia corporation (the 'COMPANY'), and Microsoft Corporation, a \nWashington corporation (the 'PURCHASER').\n\n          WHEREAS, the Purchaser intends to purchase shares of Preferred \nStock, no par value, of the Company pursuant to the terms and conditions of a \nPreferred Stock Purchase Agreement dated as of August 5, 1997 (the 'PURCHASE \nAGREEMENT'); and\n\n          WHEREAS, the Purchase Agreement requires that the Company enter \ninto this Agreement with the Purchaser;\n\n          NOW, THEREFORE, in consideration of the foregoing, the parties to \nthis Agreement hereby agree as follows:\n\n          1.   DEMAND REGISTRATION.  If, (i) at any time after August 11, \n2000, or (ii) prior to August 11, 2000 in the event of a CHANGE OF CONTROL or \nINSOLVENCY PROCEEDINGS as those terms are defined in the Purchase Agreement, \nthe Purchaser shall request the Company in writing to register under the \nSecurities Act of 1933, as amended (the 'SECURITIES ACT'), any shares of the \nCommon Stock, no par value, of the Company (the 'COMMON STOCK') issuable upon \nconversion of the Series A Non-Voting Convertible Preferred Stock, no par \nvalue (the 'PREFERRED STOCK') and, if required by the Securities and Exchange \nCommission (the 'SEC'), the shares of Preferred Stock owned by the Purchaser \n(the shares of Common Stock and, if applicable, Preferred Stock subject to \nsuch request being herein referred to as the 'SUBJECT STOCK'), the Company \nshall use its reasonable best efforts to cause the shares of Subject Stock \nspecified in such request to be registered as soon as reasonably practicable \nso as to permit the sale thereof, and in connection therewith shall prepare \nand file a Form S-3 registration statement or such other form as is then \navailable (or any successor form of registration statement to such Form S-3 \nor other available registration statement) with the SEC under the Securities \nAct to effect such registration; PROVIDED, HOWEVER, that each such request \nshall (i) specify the number of shares of Subject Stock intended to be \noffered and sold, (ii) express the present intention of the Purchaser to \noffer or cause the offering of such shares of Subject Stock for distribution, \n(iii) describe the nature or method of the proposed offer and sale thereof, \nand (iv) contain the undertaking of the Purchaser to provide all such \ninformation and materials and take all such action as may be required in \norder to permit the Company to comply with all applicable requirements of the \nSEC and to obtain any desired acceleration of the effective date of such \nregistration statement. The Purchaser shall not be entitled to request more \nthan one demand registration statement under this Agreement in any 12-month \nperiod, and the Purchaser shall not be entitled to more than a total of two \nrequests for demand registration statements pursuant to this Agreement.  The \nCompany agrees not to grant to any other person registration rights pursuant \nto which such person would have the right to register shares of Common Stock \non a registration statement filed by the Company pursuant to the exercise of \nPurchaser's rights under this Agreement. \n\n\n\n\n          2.   OBLIGATIONS OF THE COMPANY.\n\n               (a)  Whenever the Company is required by the provisions of \nthis Agreement to use its reasonable best efforts to effect the registration \nof any Common Stock under the Securities Act, the Company shall (i) prepare \nand, as soon as reasonably possible, file with the SEC a registration \nstatement with respect to the shares of Subject Stock, and shall use its \nreasonable best efforts to cause such registration statement to become \neffective and to remain effective until the earlier of the sale of the shares \nof Subject Stock so registered or 90 days subsequent to the effective date of \nsuch registration; (ii) prepare and file with the SEC such amendments and \nsupplements to such registration statement and the prospectus used in \nconnection therewith as may be reasonably necessary to make and to keep such \nregistration statement effective and to comply with the provisions of the \nSecurities Act with respect to the sale or other disposition of all \nsecurities proposed to be registered pursuant to such registration statement \nuntil the earlier of the sale of the shares of Subject Stock so registered or \n90 days subsequent to the effective date of such registration statement;  and \n(iii) take all such other action either necessary or desirable to permit the \nshares of Subject Stock held by the Purchaser to be registered and disposed \nof in accordance with the method of disposition described herein. \n\n               (b)  Notwithstanding the foregoing, if the Company shall \nfurnish to the Purchaser a certificate signed by its Chairman, Chief \nExecutive Officer or Chief Financial Officer stating that (i) filing a \nregistration statement or maintaining effectiveness of a current registration \nstatement would have a material adverse effect on the Company or its \nstockholders in relation to any material financing, acquisition or other \ncorporate transaction, and the Company has determined in good faith that such \ndisclosure is not in the best interests of the Company and its shareholders, \nor (ii) the Company has determined in good faith that the filing or \nmaintaining effectiveness of a current registration statement would require \ndisclosure of material information the Company has a valid business purpose \nof retaining as confidential, the Company shall be entitled to postpone \nfiling or suspend the use by the Purchaser of the registration statement, as \nthe case may be, for a reasonable period of time, but not in excess of an \naggregate of 90 calendar days in any 360 day period.  If the Company \nfurnishes a notice under this paragraph, the Company shall extend the period \nduring which such registration statement shall be maintained effective as \nprovided in Section 2(a) hereof by the number of days during the period from \nand including the date of the giving of notice under this paragraph to the \ndate when sales under the registration statement may recommence.\n\n               (c)  In connection with any registration statement, the \nfollowing provisions shall apply:\n\n                    (1)  The Company shall furnish to the Purchaser, prior to \nthe filing thereof with the SEC, a copy of any registration statement, and \neach amendment thereof and each amendment or supplement, if any, to the \nprospectus included therein and shall use its reasonable best efforts to \nreflect in  each such document, when so filed with the SEC, such comments as \nthe  Purchaser and its counsel reasonably may propose. \n\n                                    2\n\n\n\n                    (2)  The Company shall take such action as may be \nnecessary so that (i) any registration statement and any amendment thereto \nand any prospectus forming part thereof and any amendment or supplement \nthereto  (and each report or other document incorporated therein by \nreference) complies in all material respects with the Securities Act and the \nSecurities Exchange Act of 1934, as amended (the 'EXCHANGE ACT') and the \nrespective rules and regulations thereunder, (ii) any registration statement \nand any amendment thereto does not, when  it becomes effective, contain an \nuntrue statement of a material fact or omit to state a material fact required \nto be stated therein or necessary to make the statements therein not \nmisleading and (iii) any prospectus forming part of any registration \nstatement, and any amendment or supplement  to such prospectus, does not \ninclude an untrue statement of a material fact or omit to state a material \nfact necessary in order to make the statements therein, in the light of the \ncircumstances under which they were made, not misleading.\n\n                    (3)  (A)  The Company shall advise the Purchaser and, if \nrequested by the Purchaser, confirm such advice in writing:\n\n                            (i)  when a registration statement and any \namendment thereto has been filed with the SEC and when the registration \nstatement or any post-effective amendment thereto has become effective; and\n\n                            (ii)   of any request by the SEC for amendments \nor supplements to the registration statement or the prospectus included \ntherein or for additional information.\n\n                         (B)  The Company shall advise the Purchaser and, if \nrequested by Purchaser, confirm such advice in writing of:\n\n                            (i)   the issuance by the SEC of any stop order \nsuspending effectiveness of the registration statement or the initiation of \nany proceedings for that purpose;\n\n                            (ii)   the receipt by the Company of any \nnotification with respect to the suspension of the qualification of the \nsecurities included therein for sale in any jurisdiction or the initiation of \nany proceeding for such purpose; and\n\n                            (iii)   the happening of any event that requires \nthe making of any changes in the registration statement or the prospectus so \nthat, as of such date, the registration statement and the prospectus do not \ncontain an untrue statement of a material fact and do not omit to state a \nmaterial fact required to be stated therein or necessary to make the \nstatements therein (in the case of the prospectus, in the light of the \ncircumstances under which they were made) not misleading (which advice shall \nbe accompanied by an instruction to suspend the use of the prospectus \nrelating to the Subject Stock until the requisite changes have been made).\n\n                    (4)  The Company shall use its reasonable best efforts to \nprevent the issuance, and if issued to obtain the withdrawal, of any order \nsuspending the effectiveness of the registration statement relating to the \nSubject Stock at the earliest possible time. \n\n                                    3\n\n\n\n                    (5)  The Company shall furnish to Purchaser with respect \nto the registration statement relating to the Subject Stock, without charge, \nat least one copy of such registration statement and any post-effective \namendment thereto, including financial statements and schedules, and all \nreports, other documents and exhibits  (including those incorporated by \nreference).     \n\n                    (6)  The Company shall furnish to the Purchaser such \nnumber of copies of any prospectus (including any preliminary prospectus and \nany amended or supplemented prospectus) relating to the Subject Stock, in \nconformity with the requirements of the Securities Act, as the Purchaser may \nreasonably request in order to effect the offering and sale of the shares of \nSubject Stock to be offered and sold, but only while the Company shall be \nrequired under the provisions hereof to cause the registration statement to \nremain current, and the Company consents (except during the continuance of \nany event described in Sections 2(b) or 2(c)(3)(B)(iii)) to the use of the \nProspectus or any amendment or supplement thereto by the Purchaser in \nconnection with the offering and sale of the Subject Stock covered  by the \nProspectus or any amendment or supplement thereto.     \n\n                    (7)  Prior to any offering of Subject Stock pursuant to \nany registration statement, the Company shall use its reasonable best efforts \nto register or qualify the shares of Subject Stock covered by such \nregistration statement under the securities or blue sky laws of such states \nas the Purchaser shall reasonably request, maintain any such registration or \nqualification current until the earlier of the sale of the shares of Subject \nStock so registered or 90 days subsequent to the effective date of the \nregistration statement, and do any and all other acts and things either \nreasonably necessary or advisable to enable the Purchaser to consummate the \npublic sale or other disposition of the shares of Subject Stock in \njurisdictions where the Purchaser desires to effect such sales or other \ndisposition; provided, however, that the Company shall not be required to \ntake any action that would subject it to the general jurisdiction of the \ncourts of any jurisdiction in which it is not so subject or to qualify as a \nforeign corporation in any jurisdiction where the Company is not so \nqualified. \n\n                    (8)  In connection with any offering of shares of Subject \nStock registered pursuant to this Agreement, the Company shall (x) furnish \nthe Purchaser, at the Company's expense, on a timely basis with certificates \nfree of any restrictive legends representing ownership of the shares of \nSubject Stock being sold in such denominations and registered in such names \nas the Purchaser shall request and (y) instruct the transfer agent and \nregistrar of the Subject Stock to release any stop transfer orders with \nrespect to the shares of Subject Stock being sold.\n\n                    (9)  Upon the occurrence of any event contemplated by \nparagraph 2(c)(3)(B)(iii) above, the Company shall promptly prepare a \npost-effective amendment to any registration statement or an amendment or \nsupplement to the related prospectus or file any other required document so \nthat, as thereafter delivered to purchasers of the Subject Stock included  \ntherein, the prospectus will not include an untrue statement of a material \nfact or omit to state any material fact necessary to make the statements  \ntherein, in the light of the circumstances under which \n\n                                    4\n\n\n\nthey were made, not  misleading.  If the Company notifies Purchaser of the \noccurrence of any event contemplated by Sections 2(b) or 2(c)(3)(B)(iii) \nabove, Purchaser shall suspend the use of the prospectus until the requisite \nchanges to the prospectus have been made.\n\n                    (10)  The Company shall make generally available to its \nsecurity holders or otherwise provide in accordance with Section 11(a) of the \nSecurities Act as soon as practicable after the effective date of the \napplicable registration statement an earnings statement satisfying the \nprovisions of Section 11(a) of the Securities Act.   \n\n                    (11)  The Company shall, if requested, promptly include \nor incorporate in a prospectus supplement or post-effective amendment to a \nregistration statement, such information as the managing underwriters \nadministering an underwritten offering of the Subject Stock registered \nthereunder reasonably request to be included therein and to which the Company \ndoes not reasonably object and shall make all required filings of such \nprospectus supplement or post-effective amendment as soon as practicable \nafter they are notified of the matters to be included or incorporated in such \nprospectus supplement or post-effective amendment.     \n\n                    (12)  If requested, the Company shall enter into an \nunderwriting agreement with a nationally recognized investment banking firm \nor firms containing representations, warranties, indemnities and agreements \nthen customarily included by an issuer in underwriting agreements with \nrespect to secondary underwritten distributions, and in connection therewith, \nif an underwriting agreement is entered into, cause the same to contain \nindemnification provisions and procedures substantially identical to those \nset forth in Section 4 (or such other provisions and procedures acceptable to \nthe managing underwriters, if any) with respect to all parties to be \nindemnified pursuant to Section 4.     \n\n                    (13)  In the event Purchaser proposes to conduct an \nunderwritten public offering, then the Company shall:  (i) make reasonably \navailable for inspection by Purchaser and its counsel, any underwriter \nparticipating in the distribution pursuant to such registration statement, \nand any attorney, accountant or other agent retained by Purchaser or any such \nunderwriter, all relevant financial and other records, pertinent corporate \ndocuments and properties of the Company and its subsidiaries, as is customary \nfor similar due diligence examinations; PROVIDED, HOWEVER, that any \ninformation so provided that is designated in writing by the Company, in good \nfaith, as confidential at the time of delivery of such information shall be \nkept confidential by Purchaser, such underwriter, or any such, attorney, \naccountant or agent, unless such disclosure is made in connection with a \ncourt proceeding or required by law, or such information becomes available to \nthe public generally or through a third party without an accompanying \nobligation of confidentiality; (ii) obtain opinions of counsel to the Company \nand updates thereof (which counsel and opinions (in form, scope and \nsubstance) shall be reasonably satisfactory to the managing underwriters) \naddressed to Purchaser and the underwriters, if any, covering such matters as \nare customarily covered in opinions requested in underwritten offerings and \nsuch other matters as may be reasonably requested by Purchaser and \nunderwriters (it being agreed that the matters to be covered by such opinion \nor written statement by such counsel delivered in connection with such \nopinions shall include in customary form, without limitation, as of the date \nof the opinion and as of the effective date of the registration statement or \n\n                                    5\n\n\n\nmost recent post-effective amendment thereto, as the case may be, the absence \nfrom such registration statement and the prospectus included therein, as then \namended or supplemented, including the documents incorporated by reference \ntherein, of an untrue statement of a material fact or the omission to state \ntherein a material fact required to be stated therein or necessary to make \nthe statements therein, in the light of the circumstances under which they \nwere made, not misleading; (iii) obtain 'cold comfort' letters and updates \nthereof from the independent public accountants of the Company (and, if \nnecessary, any other independent public accountants of any subsidiary of the \nCompany or of any business acquired by the Company for which financial \nstatements and financial data are, or are required to be, included in the \nregistration statement), addressed to the underwriters in customary form and \ncovering matters of the type customarily covered in 'cold comfort' letters in \nconnection with primary underwritten offerings; (iv) deliver such documents \nand certificates as may be reasonably requested by Purchaser and the managing \nunderwriters, and with any customary conditions contained in the underwriting \nagreement or other agreement entered into by the Company.  The foregoing \nactions set forth in clauses (ii), (iii) and (iv) of  this Section 2(c)(13) \nshall be performed at each closing under any underwritten offering to the \nextent required thereunder, but, in any event, need not be performed by the \nCompany more than twice. \n\n                    (14)  The Company will use its best efforts to cause the \nSubject Stock to be admitted for quotation on the Nasdaq National Market or \nother stock exchange or trading system on which the Common Stock primarily \ntrades on or prior to the effective date of any registration statement \nhereunder. \n\n               (d)  With a view to making available the benefits of certain \nrules and regulations of the SEC which may at any time permit the sale of the \nSubject Stock to the public without registration, the Company agrees to:\n\n               (e)  Make and keep public information available, as those \nterms are understood and defined in Rule 144 (or any successor provision) \nunder the Securities Act, at all times; \n\n               (f)  During the term of this Agreement, to furnish to the \nPurchaser upon request (i) a written statement by the Company as to its \ncompliance with the reporting requirements of Rule 144, (ii) a copy of the \nmost recent annual or quarterly report of the Company, and (iii) such other \nreports and documents of the Company as the Purchaser may reasonably request \nin availing itself of any rule or regulation of the SEC allowing the \nPurchaser to sell any such securities without registration.\n\n          3.   EXPENSES.  The Company shall pay all fees and expenses \nincurred in connection with the performance of its obligations under Sections \n1 and 2 hereof, including, without limitation, all SEC and blue sky \nregistration and filing fees, printing expenses, transfer agents' and \nregistrars' fees, and the reasonable fees and disbursements of the Company's \noutside counsel and independent accountants incurred in connection with the \npreparation, filing and amendment of any registration statement authorized by \nthis Agreement (but excluding underwriters' and brokers' discounts and \ncommissions). \n\n                                    6\n\n\n\n          4.   INDEMNIFICATION AND CONTRIBUTION.\n\n               (a)  INDEMNIFICATION BY THE COMPANY.  In the case of any \noffering registered pursuant to this Agreement, the Company agrees to \nindemnify and hold the Purchaser, each underwriter (if any) of shares of \nSubject Stock under such registration statements and each person who controls \nany of the foregoing within the meaning of Section 15 of the Securities Act \nharmless against any and all losses, claims, damages or liabilities to which \nthey or any of them may become subject under the Securities Act or any other \nstatute or common law or otherwise, and to reimburse them, from time to time \nupon request, for any legal or other expenses incurred by them in connection \nwith investigating any claims and defending any actions, insofar as any such \nlosses, claims, damages, liabilities or actions shall arise out of or shall \nbe based upon (i) any untrue statement or alleged untrue statement of a \nmaterial fact contained in the registration statement (or any amendment \nthereto) relating to the sale of such shares of Subject Stock, including all \ndocuments incorporated therein by reference, or the omission or alleged \nomission to state therein a material fact required to be stated therein or \nnecessary to make the statements therein not misleading, or (ii) any untrue \nstatement or alleged untrue statement of a material fact contained in any \npreliminary prospectus (as amended or supplemented if the Company shall have \nfiled with the SEC any amendment thereof or supplement thereto), if used \nprior to the effective date of such registration statement or contained in \nthe prospectus (as amended or supplemented if the Company shall have filed \nwith the SEC any amendment thereof or supplement thereto), if used within the \nperiod during which the Company shall be required to keep the registration \nstatement to which such prospectus relates current pursuant to the terms of \nthis Agreement, or the omission or alleged omission to state therein (if so \nused) a material fact necessary in order to make the statements therein, in \nthe light of the circumstances under which they were made, not misleading; \nPROVIDED, HOWEVER, that the indemnification agreement contained in this \nSection 4(a) shall not apply to such losses, claims, damages, liabilities or \nactions which shall arise from the sale of shares of Subject Stock to any \nperson if such losses, claims, damages, liabilities or actions shall arise \nout of or shall be based upon any such untrue statement or alleged untrue \nstatement, or any such omission or alleged omission, if such statement or \nomission shall have been (x) made in reliance upon and in conformity with \ninformation furnished in writing to the Company by the Purchaser or any such \nunderwriter specifically for use in connection with the preparation of the \nregistration statement or any preliminary prospectus or prospectus contained \nin the registration statement or any such amendment thereof or supplement \nthereto, or (y) made in any preliminary prospectus, and the prospectus \ncontained in the registration statement as declared effective or in the form \nfiled by the Company with the SEC pursuant to Rule 424 under the Securities \nAct shall have corrected such statement or omission and a copy of such \nprospectus shall not have been sent or given to such person at or prior to \nthe confirmation of such sale to him.\n\n               (b)  INDEMNIFICATION BY THE PURCHASER.  In the case of each \noffering registered pursuant to this Agreement, the Purchaser agrees, in the \nsame manner and to the same extent as set forth in Section 4(a) of this \nAgreement to indemnify and hold harmless the Company and each person, if any, \nwho controls the Company within the meaning of Section 15 of the Securities \nAct, its directors and those officers of the Company who shall have signed \nany such registration statement \n\n                                    7\n\n\n\nwith respect to any statement in or omission from such registration statement \nor any preliminary prospectus (as amended or as supplemented, if amended or \nsupplemented as aforesaid) or prospectus contained in such registration \nstatement (as amended or as supplemented, if amended or supplemented as \naforesaid), if such statement or omission shall have been made in reliance \nupon and in conformity with information furnished in writing to the Company \nby the Purchaser specifically for use in connection with the preparation of \nsuch registration statement or any preliminary prospectus or prospectus \ncontained in such registration statement or any such amendment thereof or \nsupplement thereto.\n\n               (c)  NOTICE OF CLAIMS.  Each party indemnified under Section \n4(a) or Section 4(b) of this Agreement shall, promptly after receipt of \nnotice of the commencement of any action against such indemnified party in \nrespect of which indemnity may be sought, notify the indemnifying party in \nwriting of the commencement thereof, enclosing a copy of all papers served on \nsuch indemnified party.  The omission of any indemnified party so to notify \nan indemnifying party of any such action shall not relieve the indemnifying \nparty from any liability in respect of such action which it may have to such \nindemnified party on account of the indemnity agreement contained in Section \n4(a) or Section 4(b) of this Agreement, unless the indemnifying party was \nprejudiced by such omission, and in no event shall relieve the indemnifying \nparty from any other liability which it may have to such indemnified party.  \nIn case any such action shall be brought against any indemnified party and it \nshall notify an indemnifying party of the commencement thereof, the \nindemnifying party shall be entitled to participate therein and, to the \nextent that it may wish, jointly with any other indemnifying party similarly \nnotified, to assume the defense thereof, with counsel satisfactory to such \nindemnified party; PROVIDED, that if any indemnified party or parties \nreasonably determine that there may be legal defenses available to such \nindemnified party that are different from or in addition to those available \nto such indemnifying party or that representation of such indemnifying party \nand any indemnified party by the same counsel would present a conflict of \ninterest, then such indemnifying party shall not be entitled to assume such \ndefense.  If an indemnifying party is not entitled to assume the defense of \nsuch action as a result of the proviso to the preceding sentence, counsel for \nsuch indemnifying party shall be entitled to conduct the defense of such \nindemnifying party and counsel for the indemnified party shall be entitled to \nconduct the defense of such indemnified party or parties.  If an indemnifying \nparty assumes the defense of an action in accordance with and as permitted by \nthe provisions of this paragraph, such indemnifying party shall not be liable \nto such indemnified party under Section 4(a) or Section 4(b) of this \nAgreement for any legal or other expenses subsequently incurred by such \nindemnified party in connection with the defense thereof other than \nreasonable costs of investigation.  In no event shall the indemnifying party \nbe liable for the fees and expenses of more than one counsel (in addition to \nlocal counsel) separate from its own counsel for all indemnified parties in \nconnection with any one action or separate but similar or related actions in \nthe same jurisdiction arising out of the same general allegations or \ncircumstances.  \n\n               (d)  In order to provide for just and equitable contribution \nin circumstances in which the indemnity provided for in this Section 4 is for \nany reason held to be unavailable to the indemnified parties although \napplicable in accordance with its terms, the Company and Purchaser shall \ncontribute to the aggregate losses, liabilities, claims, damages and expenses \nof the nature \n\n                                    8\n\n\n\ncontemplated by said indemnity incurred by the Company and Purchaser, as \nincurred; PROVIDED that no person guilty of fraudulent misrepresentation \n(within the meaning of Section 11(f) of the Securities Act) shall be entitled \nto contribution from any person that was not guilty of such fraudulent \nmisrepresentation.  As between the Company, on the one hand, and Purchaser, \non the other hand, such parties shall contribute to such aggregate losses, \nliabilities, claims, damages and expenses of the nature contemplated by such \nindemnity agreement in such proportion as shall be appropriate to reflect the \nrelative fault of the Company, on the one hand, and the Purchaser, on the \nother hand, with respect to the statements or omissions which resulted in \nsuch loss, liability, claim, damage or expense, or action in respect thereof, \nas well as any other relevant equitable considerations.  The relative fault \nof the Company, on the one hand, and of the Purchaser, on the other hand, \nshall be determined by reference to, among other things, whether the untrue \nor alleged untrue statement of a material fact or the omission or alleged \nomission to state a material fact relates to information supplied by the \nCompany, on the one hand, or by or on behalf of the Purchaser, on the other \nhand, and the parties' relative intent, knowledge, access to information and \nopportunity to correct or prevent such statement or omission.  The Company \nand the Purchaser agree, that it would not be just and equitable if \ncontribution pursuant to this Section 4 were to be determined by pro rata \nallocation or by any other method of allocation that does not take into \naccount the relevant equitable considerations.  For purposes of this Section \n4(d), each person who controls the Company or the Purchaser within the \nmeaning of Section 15 of the Securities Act shall have the same rights to \ncontribution as Purchaser or the Company, as the case may be. No party shall \nbe liable for contribution with respect to any action, suit, proceeding or \nclaim settled without its written consent. \n\n               (e)  The Company may require, as a condition to entering into \nany underwriting agreement with respect to the registration of Subject Stock, \nthat the Company shall have received an undertaking reasonably satisfactory \nto it from each underwriter named in any such underwriting agreement, \nseverally and not jointly, to comply with the provisions of paragraphs (a) \nthrough (d) of this Section 4.\n\n               (f)  The obligations of the Company and Purchaser under this \nSection 4 shall survive the completion of any offering of Subject Stock in a \nregistration statement.\n\n          5.   NOTICES.  Any notice or other communication given under this \nAgreement shall be sufficient if in writing and sent by registered or \ncertified mail, return receipt requested, postage prepaid, to a party at its \naddress set forth below (or at such other address as shall be designated for \nsuch purpose by such party in a written notice to the other party hereto):\n\n               (a)  if to the Company, to it at:\n                    One Infinite Loop\n                    Cupertino, CA 95014\n                    Attention: Chief Financial Officer\n\nwith a copy addressed as set forth above but to the attention of the General\nCounsel;\n\n                                    9\n\n\n\n                    with a copy to:\n\n                    Larry W. Sonsini\n                    Wilson Sonsini Goodrich &amp; Rosati\n                    Professional Corporation\n                    650 Page Mill Road\n                    Palo Alto, CA 94306\n\n               (b)  if to the Purchaser, to it at:\n\n                    Microsoft Corporation\n                    One Microsoft Way\n                    Building 8\n                    North Office 2211\n                    Redmond, WA 98052\n                    Attn: Attention:  Chief Financial Officer\n\nwith a copy addressed as set forth above but to the attention of Senior Vice\nPresident, Law and Corporate Affairs, with a copy to:.\n\n                    Richard B. Dodd \n                    Preston Gates &amp; Ellis LLP\n                    5000 Columbia Center\n                    701 Fifth Avenue\n                    Seattle, WA 98104-7078\n\nAll such notices and communications shall be effective when received by the\naddressee.\n\n          6.   GOVERNING LAW.  This Agreement shall be governed in all \nrespects by the internal laws of the State of California as applied to \ncontracts entered into solely between residents of, and to be performed \nentirely within, such state, and without reference to principles of conflicts \nof laws or choice of laws.\n\n          7.   ENTIRE AGREEMENT; AMENDMENTS.  This Agreement constitutes the \nfull and entire understanding and agreement between the parties with regard \nto the subject matter hereof and supersedes all prior agreements and \nunderstandings among the parties relating to the subject matter hereof.  \nNeither this Agreement nor any term hereof may be amended, waived, discharged \nor terminated other than by a written instrument signed by the party against \nwhom enforcement of any such amendment, waiver, discharge or termination is \nsought.\n\n          8.   SUCCESSORS AND ASSIGNS.  This Agreement shall be binding upon \nand shall inure to the benefit of the parties hereto and their respective \nsuccessors and assigns.\n\n                                    10\n\n\n\n\n          9.   SEVERABILITY.  If any term, provision, covenant or restriction \nof this Agreement is held by a court of competent jurisdiction to be invalid, \nvoid or unenforceable, the remainder of the terms, provisions, covenants and \nrestriction of this Agreement shall remain in full force and effect and shall \nin no way be affected, impaired or invalidated.\n\n          10.  TERMINATION OF COMPANY OBLIGATION.  All registration rights \nprovided hereunder shall terminate upon the earlier to occur of (a) the fifth \nanniversary of the date of this Agreement or (b)  such time as, in the \nwritten opinion of counsel to the Company, the Purchaser is able to sell all \nof its Common Stock without registration under the Securities Act or any \nsuccessor provision thereto during any single three-month period.\n\n          11.  NO TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS.  The \nregistration rights set forth in this Agreement shall not be transferable or \nassignable by the Purchaser, except to (i) any person or group approved in \nwriting by the Company or (ii) to a corporation of which the Purchaser owns \nnot less than 50% of the voting power entitled to be cast in the election of \ndirectors; or (iii) any person to whom Purchaser has satisfied the \nrequirements of Section 8.1 (Right of First Refusal) of the Purchase \nAgreement and the Company has waived or failed to exercise its purchase \nrights; provided, however, that each transferee agrees in writing to be \nsubject to all the terms and conditions of this Agreement and the Purchase \nAgreement.\n\n                 [The balance of this page intentionally left blank.]\n\n                                    11\n\n\n\n          IN WITNESS WHEREOF, the parties hereto have caused this Agreement \nto be executed by their respective authorized officers as of the date set \nforth above.\n\n                                   APPLE COMPUTER, INC.\n\n\n                                   By:  \/s\/ John B. Douglas, III\n                                      ---------------------------------------\n\n                                   Name:    John B. Douglas, III\n                                        -------------------------------------\n\n                                   Title:   Senior Vice President\n                                         ------------------------------------\n\n\n\n                                   MICROSOFT CORPORATION\n\n\n                                   By:  \/s\/ Greg Maffei\n                                      ---------------------------------------\n\n                                   Name:    Greg Maffei\n                                        -------------------------------------\n\n                                   Title:   Chief Financial Officer\n                                         ------------------------------------\n\n\n                                         12\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6722,8221],"corporate_contracts_industries":[9508,9513],"corporate_contracts_types":[9632,9629],"class_list":["post-43862","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-apple-computer-inc","corporate_contracts_companies-microsoft-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_industries-technology__software","corporate_contracts_types-securities__registration","corporate_contracts_types-securities"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43862","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43862"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43862"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43862"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43862"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}