Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as
of January 22, 1999 is made and entered into between SIGMA DESIGNS, INC.,
a California corporation (the "Company"), and the persons and entities
listed on Exhibit A to the Subscription Agreement (defined below) (the
"Investors").
WHEREAS, the Company and the Investors have entered into that
certain Private Securities Subscription Agreement, dated as of the date
hereof (the "Subscription Agreement"), pursuant to which the Company
will issue to the Investors shares of its Series C Preferred Stock (the
"Preferred Stock") that are convertible into shares of Common Stock of
the Company, no par value (the "Common Stock");
WHEREAS, pursuant to the terms of, and in partial consideration
for, the Investors' agreement to enter into the Subscription Agreement,
the Company has issued to each Investor a warrant (the "Warrant") dated
as of the date hereof, exercisable from time to time for the purchase of
that number of shares as is set forth on Exhibit A to the Subscription
Agreement at the exercise price specified in such Warrant;
WHEREAS, pursuant to the terms of, and in partial consideration
for, the Investors' agreement to enter into the Subscription Agreement,
the Company has agreed to provide the Investors with certain registration
rights with respect to the Conversion Shares (as defined below);
NOW, THEREFORE, in consideration of the premises, the
representations, warranties, covenants and agreements contained herein
and in the Subscription Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Capitalized terms defined in the
Subscription Agreement or the Warrant shall have the same meanings herein
as are ascribed to them therein. In addition, the following terms shall
have the meanings ascribed below:
"Act" means the Securities Act of 1933, as amended.
"Material Event" means the happening of any event during the
period that the registration statement described in Section 2 hereof is
required to be effective as a result of which, in the reasonable judgment
of the Company, such registration statement or the related prospectus
contains or may contain any untrue statement of a material fact or omits
or may omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
"Registrable Securities" means all of the Common Stock and any
other securities issued or issuable upon conversion of the Preferred
Stock or upon exercise of the Warrants as provided therein (together, the
"Conversion Shares"); provided, however, that any such Conversion
Shares which have been resold to the public under the Act shall cease to
be Registrable Securities upon such resale.
"Registration Statement" shall have the meaning given in
Section 2.1(a) below.
"Rule 144" means Rule 144 promulgated under the Act.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 FORM S-3 REGISTRATION STATEMENT.
(a) Filing of Form S-3 Registration Statement. Subject to
the terms and conditions of this Agreement, the Company shall file with
the Securities and Exchange Commission (the "SEC") no later than sixty
(60) days following the date of this Agreement a registration statement
on Form S-3 under the Act (the "Registration Statement") for the
registration of the resale by the Investors of Common Stock to be issued
upon conversion of the Preferred Stock and upon exercise of the Warrant
(or, if such form is unavailable for such registration, on such other
form as is available for such registration, which Registration Statement
shall state that, in accordance with Rule 416 promulgated under the Act,
such Registration Statement also covers such indeterminate number of
additional shares of Common Stock).
(b) Effectiveness of Registration Statements. The Company
will use its reasonable best efforts to have the Registration Statement
declared effective by the SEC by no later than one hundred twenty (120)
days following the date of this Agreement and to have the Registration
Statement remain in effect until the termination of this Agreement as
provided in Section 5.1.
(c) Material Event. The Investors agree that, upon receipt
of any notice from the Company of the happening of a Material Event, the
Investors will forthwith discontinue disposition of the Registrable
Securities pursuant to any Registration Statement described in Section 2
until the Investors' receipt of copies of supplemented or amended
prospectuses prepared by the Company (which the Company will use its
commercially reasonable efforts to prepare and file promptly), and, if so
directed by the Company, the Investors will deliver to the Company all
copies in their possession, other than permanent file copies then in the
Investors' possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In no event
shall the Company delay causing to be effective a supplement or post-
effective amendment to any Registration Statement pursuant to Section 2
or the related prospectus, for more than sixty (60) days during any
twelve (12) month period.
ARTICLE III
REGISTRATION PROCEDURES
SECTION 3.1 FILINGS; INFORMATION. Whenever the Company is
required to effect or cause the registration of Registrable Securities
pursuant to Section 2.1, the Company will use reasonable best efforts to
effect the registration of such Registrable Securities in accordance with
the intended method of disposition thereof as quickly as practicable, and
in connection with any such request:
(a) The Company will as expeditiously as possible but in no
event later than the time period prescribed by Section 2.1(a), prepare
and file with the SEC a registration statement on Form S-3 (if use of
such form is then available to the Company pursuant to the rules of the
SEC and, if not, on such other form promulgated by the SEC for which the
Company then qualifies and which counsel for the Company shall deem
appropriate and which form shall be available for the sale of the
Registrable Securities to be registered thereunder in accordance with the
provisions of this Agreement and in accordance with the intended method
of disposition of such Registrable Securities), and use reasonable best
efforts to cause such filed Registration Statement to become and remain
effective (pursuant to Rule 415 under the Act or otherwise), and the
Company will as expeditiously as possible prepare and file with the SEC
such amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for the time periods prescribed by
Section 2.1(b), and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during such period in accordance with the intended methods of disposition
by the Investors set forth in such Registration Statement. Such
Registration Statement shall cover the resale of the Registrable
Securities only. No other securities shall be registered under such
Registration Statement.
(b) The Company will, prior to filing a Registration
Statement or prospectus or any amendment or supplement thereto (excluding
amendments deemed to result from the filing of documents incorporated by
reference therein), furnish to the Investors and one counsel representing
the Investors, copies of such Registration Statement as proposed to be
filed, together with exhibits thereto, which documents will be subject to
review and approval by such parties, and thereafter furnish to the
Investors and their counsel for their review and comment such number of
copies of such Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto), the prospectus
included in such Registration Statement (including each preliminary
prospectus) and such other documents or information as the Investors or
counsel may reasonably request in order to facilitate the disposition of
the Registrable Securities.
(c) After the filing of the Registration Statement, the
Company will promptly notify the Investors of any stop order issued or
threatened by the SEC in connection therewith and take all reasonable
actions required to prevent the entry of such stop order or to remove it
if entered.
(d) The Company will use reasonable best efforts to
(i) register or qualify such Registrable Securities under such other
securities or blue sky laws of such jurisdictions in the United States as
the Investors may reasonably (in light of its intended plan of
distribution) request, and (ii) cause such Registrable Securities to be
registered with or approved by such other governmental agencies or
authorities in the United States as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and
things that may be reasonably necessary or advisable to enable the
Investors to consummate the disposition of the Registrable Securities;
provided that the Company 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 paragraph (d), (B) subject itself to
taxation in any such jurisdiction or (C) consent or subject itself to
general service of process in any such jurisdiction.
(e) The Company will promptly notify the Investors upon the
occurrence of any of the following events in respect of a Registration
Statement or related prospectus in respect of an offering of Registrable
Securities: (i) the declaration of the effectiveness of a Registration
Statement; (ii) receipt of any request for additional information by the
SEC or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement for amendments or
supplements to the Registration Statement or related prospectus;
(iii) the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose; (iv) receipt of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; (v) the happening of any
event which makes any statement made in the Registration Statement or
related prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or which
requires the making of any changes in the Registration Statement, related
prospectus or documents so that the Registration Statement and the
related prospectus 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 in the light of
the circumstances in which they were made; and (vi) the Company's
reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate; and the Company will
promptly make available to the Investors any such supplement or amendment
to the related prospectus.
(f) The Company will enter into customary agreements and
take such other actions as are reasonably required in order to expedite
or facilitate the disposition of such Registrable Securities (the
Investors may, at their option, require that any or all of the
representations, warranties and covenants of the Company also be made to
and for the benefit of the Investors). The Investors understand that no
sales of Registrable Securities may be underwritten and the Company is
under no obligation to enter into an underwriting agreement.
(g) The Company will otherwise comply with all applicable
rules and regulations of the SEC, including, without limitation,
compliance with applicable reporting requirements under the Exchange Act
of 1934, as amended (the "Exchange Act"), and will make available to
its security holders, as soon as reasonably practicable, an earning
statement covering a period of twelve (12) months, beginning within three
(3) months after the effective date of the Registration Statement, which
earning statement shall satisfy the provisions of Section 11(a) of the
Act.
(h) The Company will use commercially reasonable efforts to
list all such Registrable Securities covered by such Registration
Statement on the Nasdaq Stock Market.
(i) The Company will appoint a transfer agent and registrar
for all such Registrable Securities covered by such Registration
Statement not later than the effective date of such Registration
Statement.
The Company may require the Investors to promptly
furnish in writing to the Company such information regarding the
distribution of the Registrable Securities as the Company may from time
to time reasonably request and such other information as may be legally
required in connection with such registration including, without
limitation, all such information as may be requested by the SEC or the
National Association of Securities Dealers, Inc. (the "NASD"). The
Investors agree to provide such information as shall be reasonably
requested in connection with such registration within ten (10) business
days after receiving such written request and the Company shall not be
responsible for any delays in obtaining or maintaining the effectiveness
of the Registration Statement caused by the Investors' failure to timely
provide such information. The Investors agree that, upon receipt of any
notice from the Company of the happening of any event of the kind
described in Section 3.1(e) hereof, the Investors will forthwith
discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until the
Investors' receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3.1(e) hereof, and, if so directed by
the Company, the Investors will deliver to the Company all copies, other
than permanent file copies then in the Investors' possession, of the most
recent prospectus covering such Registrable Securities at the time of
receipt of such notice. In the event the Company shall give such notice,
the Company shall extend the period during which such Registration
Statement shall be maintained effective (including the period referred to
in Section 3.1(a) hereof) by the number of days during the period from
and including the date of the giving of notice pursuant to Section 3.1(e)
hereof to the date when the Company shall make available to the Investors
a prospectus supplemented or amended to conform with the requirements of
Section 3.1(e) hereof.
SECTION 3.2 REGISTRATION EXPENSES. In connection with each
Registration Statement, the Company shall pay the following registration
expenses incurred in connection with the registration thereunder (the
"Registration Expenses"): (i) all registration and filing fees,
(ii) fees and expenses of compliance with securities or blue sky laws,
(iii) printing expenses, (iv) the Company's internal expenses (including,
without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), (v) the fees and
expenses incurred in connection with the listing of the Registrable
Securities, and (vi) the fees and expenses of any special experts and
legal counsel retained by the Company in connection with such
registration. The Company shall have no obligation to pay any
underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities, or the cost of any special audit required by the
Investors, such costs to be borne by the Investors.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Investor, its partners, Affiliates,
officers, directors, employees and duly authorized agents, and each
Person or entity, if any, who controls such Investor within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, together with
the partners, Affiliates, officers, directors, employees and duly
authorized agents of such controlling Person or entity (collectively, the
"Controlling Persons"), from and against any loss, claim, damage,
liability, reasonable attorneys' fees, costs or expenses and costs and
expenses of investigating and defending any such claim (collectively,
"Damages"), joint or several, and any action in respect thereof to
which each Investor, its partners, Affiliates, officers, directors,
employees and duly authorized agents, and any such Controlling Person may
become subject under the Act or otherwise, insofar as such Damages (or
proceedings in respect thereof) arise out of, or are based upon, any
untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement, prospectus, supplement or amendment
relating to the Registrable Securities or any preliminary prospectus, or
arises out of, or are based upon, any omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same
are based upon information furnished in writing to the Company by each
Investor expressly for use therein, and shall reimburse each Investor,
its partners, Affiliates, officers, directors, employees and duly
authorized agents, and each such Controlling Person for any legal and
other expenses reasonably incurred by such Investor, its partners,
Affiliates, officers, directors, employees and duly authorized agents, or
any such Controlling Person in investigating or defending or preparing to
defend against any such Damages or proceedings; provided, however, that
the Company shall not be liable to such Investor to the extent that
(i) such Investor failed to send or deliver a copy of the final
prospectus with or prior to the delivery of written confirmation of the
sale by such Investor to the Person asserting the claim from which such
Damages arise, and (ii) the final prospectus would have corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission upon which the claim is asserted and from which the Damages
arise.
SECTION 4.2 INDEMNIFICATION BY THE INVESTORS. Each Investor
agrees to indemnify and hold harmless the Company, its partners,
Affiliates, officers, directors, employees and duly authorized agents and
each Person or entity, if any, who controls the Company within the mean-
ing of Section 15 of the Act or Section 20 of the Exchange Act (a
"Controlling Person"), together with the partners, Affiliates,
officers, directors, employees and duly authorized agents of such
Controlling Person or entity, to the same extent as the foregoing
indemnity from the Company to the Investor, but only with reference to
information related to the Investor or its plan of distribution,
furnished in writing by the Investor or on the Investor's behalf
expressly for use in any Registration Statement or prospectus relating to
the Registrable Securities, or any amendment or supplement thereto, or
any preliminary prospectus. In case any action or proceeding shall be
brought against the Company or its partners, Affiliates, officers,
directors, employees or duly authorized agents or any such Controlling
Person or its partners, Affiliates, officers, directors, employees or
duly authorized agents, in respect of which indemnity may be sought
against the Investor, the Investor shall have the rights and duties given
to the Company, and the Company or its partners, Affiliates, officers,
directors, employees or duly authorized agents, or such Controlling
Person, or its partners, Affiliates, officers, directors, employees or
duly authorized agents, shall have the comparable rights and duties given
to the Investor by Section 4.1. The Company shall be entitled to receive
indemnities on customary terms from Underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in
the distribution, to the same extent as provided above, with respect to
information so furnished in writing by such persons specifically for
inclusion in any prospectus or Registration Statement.
SECTION 4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly
after receipt by any person or entity in respect of which indemnity may
be sought pursuant to Section 4.1 or 4.2 (an "Indemnified Party") of
notice of any claim or the commencement of any action, the Indemnified
Party shall, if a claim in respect thereof is to be made against the
person or entity from whom such indemnity may be sought (an
"Indemnifying Party"), promptly notify the Indemnifying Party in
writing of the claim or the commencement of such action. In the event an
Indemnified Party shall fail to give such notice as provided in this
Section 4.3 and the Indemnifying Party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, the
indemnification provided for in Section 4.1 or 4.2 shall be reduced to
the extent of any actual prejudice resulting from such failure to so
notify the Indemnifying Party; provided, that the failure to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any
liability which it may have to an Indemnified Party other than that
liability arising under Section 4.1 or 4.2. If any such claim or action
shall be brought against an Indemnified Party, and it shall notify the
Indemnifying Party thereof, the Indemnifying Party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any
other similarly notified Indemnifying Party, to assume the defense
thereof. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume the defense of such claim or action, the
Indemnifying Party shall not be liable to the Indemnified Party for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided that the Indemnified Party shall have the right
to employ separate counsel to represent the Indemnified Party and its
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Indemnified
Party against the Indemnifying Party, but the fees and expenses of such
counsel shall be for the account of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed
to the retention of such counsel or (ii) in the reasonable judgment of
the Company and such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential
conflicts of interest between them, it being understood, however, that
the Indemnifying Party shall not, in connection with any one such claim
or action or separate but substantially similar or related claims or
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (together with appropriate local
counsel) at any time for all Indemnified Parties, or for fees and
expenses that are not reasonable. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement
of any claim or pending or threatened proceeding in respect of which the
Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all
liability arising out of such claim or proceeding. Whether or not the
defense of any claim or action is assumed by the Indemnifying Party, such
Indemnifying Party will not be subject to any liability for any
settlement made without its consent.
SECTION 4.4 CONTRIBUTION. If the indemnification provided for in
this Article 4 is unavailable to the Indemnified Parties in respect of
any Damages referred to herein, then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such Damages as
between the Company on the one hand and the Investors on the other, in
such proportion as is appropriate to reflect the relative fault of the
Company and of the Investors in connection with such statements or
omissions, as well as other equitable considerations. The relative fault
of the Company on the one hand and of the Investors on the other 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 such
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Investor agrees that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by
pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
Indemnified Party as a result of the Damages referred to in the
immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 4.4, contribution by any seller of Registrable Securities
shall be limited to the gross amount of proceeds received by such seller
from the sale of such Registrable Securities. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 TERM. The registration rights provided to the holders
of Registrable Securities hereunder shall terminate on the earlier of:
(i) the second anniversary of the date of this Agreement, or (ii) as to
any Buyer, the date as of which such Buyer may sell all of the
Registrable Securities that it holds in reliance upon Rule 144
promulgated under the Securities Act (or successor thereto), provided,
however, that the provisions of Article 4 hereof shall survive any
termination of this Agreement.
SECTION 5.2 RULE 144. The Company covenants that it will file all
reports required to be filed by it under the Act and the Exchange Act in
a timely manner and that it will take such further action as holders of
Registrable Securities may reasonably request, all to the extent required
from time to time to enable the Investors to sell Registrable Securities
without registration under the Act within the limitation of the
exemptions provided by (a) Rule 144, as such Rule may be amended from
time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. If at any time the Company is not required to file such
reports, it will, upon the request of any holder of Registrable
Securities, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144. Upon the request of the
Investors, the Company will deliver to the Investors a written statement
as to whether it has complied with such requirements.
SECTION 5.3 AMENDMENT AND MODIFICATION. Any provision of this
Agreement may be waived, provided that such waiver is set forth in a
writing executed by the party against whom the enforcement of such waiver
is sought. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of the holders of a
majority of the then outstanding Registrable Securities. Notwithstanding
the foregoing, the waiver of any provision hereof with respect to a
matter that relates exclusively to the rights of holders of Registrable
Securities whose securities are being sold pursuant to a Registration
Statement, and does not directly or indirectly affect the rights of other
holders of Registrable Securities, may be given by holders of at least a
majority of the Registrable Securities being sold by such holders;
provided that the provisions of this sentence may not be amended, modi-
fied or supplemented except in accordance with the provisions of the
immediately preceding sentence. No course of dealing between or among
any person having any interest in this Agreement will be deemed effective
to modify, amend or discharge any part of this Agreement or any rights or
obligations of any person under or by reason of this Agreement.
SECTION 5.4 SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT. This
Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns. The Investors may assign their rights under this
Agreement to any subsequent holder of Preferred Stock, Warrants or
Conversion Shares, provided that the Company shall have the right to
require any holder of Registrable Securities to execute a counterpart of
this Agreement as a condition to such holder's claim to any rights
hereunder. This Agreement, together with the Subscription Agreement and
the Warrants sets forth the entire agreement and understanding between
the parties as to the subject matter hereof and merges and supersedes all
prior discussions, agreements and understandings of any and every nature
among them.
SECTION 5.5 SEPARABILITY. In the event that any provision of this
Agreement or the application of any provision hereof is declared to be
illegal, invalid or otherwise unenforceable by a court of competent
jurisdiction, the remainder of this Agreement shall not be affected
except to the extent necessary to delete such illegal, invalid or
unenforceable provision unless that provision held invalid shall
substantially impair the benefits of the remaining portions of this
Agreement.
SECTION 5.6 NOTICES. All notices, demands, requests, consents,
approvals or other communications required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in
writing and shall be personally served or deposited in the mail,
registered or certified, return receipt requested, postage prepaid, or
delivered by reputable air courier service with charges prepaid, or
transmitted by hand delivery, telegram, telex or facsimile, addressed as
set forth below, or to such other address as such party shall have
specified most recently by written notice:
(i) if to the Company, to:
Sigma Designs, Inc.
00000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Director of Investor Relations
Facsimile No.: (000) 000-0000
with copies (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
and
(ii) if to the Investors, to the address and facsimile number set
forth following such Investors' names in Exhibit A to the
Subscription Agreement.
Notice shall be deemed given on the date of service or transmission
if personally served or transmitted by telegram, telex or facsimile.
Notice otherwise sent as provided herein shall be deemed given on the
third business day following the date mailed or on the second business
day following delivery of such notice by a reputable air courier service.
SECTION 5.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA,
WITHOUT GIVING EFFECT TO PROVISIONS GOVERNING CONFLICTS OF LAWS THEREOF.
SECTION 5.8 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this
Agreement, nor shall they affect their meaning, construction or effect.
SECTION 5.9 COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an original
instrument and all of which together shall constitute one and the same
instrument.
SECTION 5.10 FURTHER ASSURANCES. Each party shall cooperate and
take such action as may be reasonably requested by another party in order
to carry out the provisions and purposes of this Agreement and the
transactions contemplated hereby.
SECTION 5.11 ARBITRATION; REMEDIES. Any dispute that arises
between the parties to this Agreement shall first be submitted for
resolution to arbitration under the rules of the American Arbitration
Association of Santa Xxxxx County, California. In the event of a breach
or a threatened breach by any party to this Agreement of its obligations
under this Agreement, any party injured or to be injured by such breach
will be entitled to specific performance of its rights under this
Agreement or to injunctive relief, in addition to being entitled to
exercise all rights provided in this Agreement and granted by law. The
parties agree that the provisions of this Agreement shall be specifically
enforceable, it being agreed by the parties that the remedy at law,
including monetary damages, for breach of any such provision will be
inadequate compensation for any loss and that any defense or objection in
any action for specific performance or injunctive relief that a remedy at
law would be adequate is waived.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by the undersigned, thereunto duly authorized, as of the
date first set forth above.
SIGMA DESIGNS, INC.
By:
Xxxxx X. Xxxx
Chairman and Chief Executive Officer
PREFERRED HARDWARE DISTRIBUTORS, INC.
By:
Xxxxxx Xxxxx
President
JFIC Inc.
By:
Xxxxxx Xxxx
President
MULTIVENTURE TECHNOLOGIES, INC.
By:
Xxxxx Xxx
Chief Executive Officer
[REGISTRATION RIGHTS SIGNATURE PAGE
