EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into as of this October 1, 1996, by and between Integrated Device
Technology, Inc., a Delaware corporation ("Acquirer"), and Xxxx X. and Xxxx Xxx
Xxxx, on one hand, and Xxxxx X. Xxxx, on the other hand (collectively, the
"Target Shareholders"), who will receive shares of Acquirer common stock (the
"Acquirer Common Stock") in the Merger (as defined below).
WHEREAS, Integrated Device Technology Xxxxxxx Corp., a wholly
owned California subsidiary of Acquirer ("Merger Sub"), will be merged with and
into Baccarat Silicon, Inc. ("Target") pursuant to the terms of an Agreement of
Merger, dated October 1, 1996 (the "Agreement of Merger"), and the related
Agreement and Plan of Reorganization, dated October 1, 1996 (the "Plan of
Reorganization"), among Acquirer, Merger Sub and Target (the "Merger");
WHEREAS, in the Merger, the Target Shareholders will exchange
all of their shares of Target common stock for seven hundred eighty-two thousand
four hundred forty-five (782,445) shares of Acquirer Common Stock (the "Exchange
Shares");
WHEREAS, pursuant to Section 1.5 of the Plan of
Reorganization, immediately after the filing of the Agreement of Merger with the
Secretary of State of California (the "Effective Time"), the Target Shareholders
may cause Acquirer to register the Exchange Shares pursuant to a Form S-3 (as
defined below), provided that the Target Shareholders have entered into this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants set forth herein, the parties agree as follows:
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Article 1:
(a) Registration. The terms "register," "registered"
and "registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as amended
(the "Securities Act"), and the declaration or ordering of effectiveness of such
registration statement.
(b) Registrable Securities. The term "Registrable
Securities" means: (1) the Exchange Shares; and (2) any shares of Common Stock
of the Acquirer issued as (or issuable upon the conversion or exercise of any
warrant, right or other security that is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, all such
Exchange Shares described in clause (1) of this subsection (b); excluding in all
cases, however, any Registrable Securities sold by a person in a transaction in
which rights under this Article 1 are not assigned in accordance
with this Agreement or any Registrable Securities sold to the public or sold
pursuant to Rule 144 promulgated under the Securities Act.
(c) Registrable Securities Then Outstanding. The
number of shares of "Registrable Securities then outstanding" shall mean the
number of shares of Common Stock which are Registrable Securities and (1) are
then issued and outstanding or (2) are then issuable pursuant to the exercise or
conversion of then outstanding and then exercisable options, warrants or
convertible securities.
(d) Holder. For purposes of this Article 1 and
Articles 2 and 3 hereof, the term "Holder" means any person owning of record at
least 100,000 shares of Registrable Securities that have not been sold to the
public or pursuant to Rule 144 promulgated under the Securities Act or any
assignee of record of such Registrable Securities to whom rights under this
Article 1 have been duly assigned in accordance with this Agreement. The term
"Holder" includes (i) all corporations, partnerships or other organizations that
a Holder controls through beneficial ownership in combination with members of
the Holder's immediate family of at least 50% of such corporation, partnership
or other organization and (ii) any individual who is a member of a Holder's
immediate family.
(e) Form S-3. The term "Form S-3" means such form
under the Securities Act as is in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the SEC which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Acquirer with the SEC.
(f) SEC. The term "SEC" or "Commission" means the
U.S. Securities and Exchange Commission.
1.2 Piggyback Registrations. The Acquirer shall notify all
Holders of Registrable Securities in writing at least fifteen (15) days prior to
filing any registration statement under the Securities Act for purposes of
effecting a public offering of Common Stock of the Acquirer (including, but not
limited to, registration statements relating to secondary offerings of
securities of the Acquirer, but excluding registration statements relating to
any registration under Section 1.3 of this Agreement or to any employee benefit
plan or a corporate reorganization) and will afford each such Holder an
opportunity to include in such registration statement all or any part of the
Registrable Securities then held by such Holder. Each Holder desiring to include
in any such registration statement all or any part of the Registrable Securities
held by such Holder shall, within five (5) days after receipt of the
above-described notice from the Acquirer, so notify the Acquirer in writing, and
in such notice shall inform the Acquirer of the number of Registrable Securities
such Holder wishes to include in such registration statement. If a Holder
decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Acquirer, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent
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registration statement or registration statements as may be filed by the
Acquirer with respect to offerings of its securities, all upon the terms and
conditions set forth herein.
(a) Underwriting. If a registration statement under
which the Acquirer gives notice under this Section 1.2 is for an underwritten
offering, then the Acquirer shall so advise the Holders of Registrable
Securities. In such event, the right of any such Holder's Registrable Securities
to be included in a registration pursuant to this Section 1.2 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the managing underwriter or underwriter(s) selected for
such underwriting. Notwithstanding any other provision of this Agreement, if the
managing underwriter(s) determine(s) in good faith that marketing factors
require a limitation of the number of shares to be underwritten, then the
managing underwriter(s) may exclude shares (including Registrable Securities)
from the registration and the underwriting, and the number of shares that may be
included in the registration and the underwriting shall be allocated, first, to
the Acquirer, and second, to each of the Holders requesting inclusion of their
Registrable Securities in such registration statement on a pro rata basis based
on the total number of Registrable Securities then held by each such Holder;
provided, however, that the right of the underwriters to exclude shares
(including Registrable Securities) from the registration and underwriting as
described above shall be restricted so that: (i) the number of Registrable
Securities included in any such registration is not reduced below twenty percent
(20%) of the shares included in the registration; and (ii) all shares that are
not Registrable Securities and are held by persons who are employees or
directors of the Acquirer (or any subsidiary of the Acquirer) shall first be
excluded from such registration and underwriting before any Registrable
Securities are so excluded. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Acquirer and the underwriter, delivered at least ten (10) business days
prior to the effective date of the registration statement. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded and
withdrawn from the registration. For any Holder which is a partnership or
corporation, the partners, retired partners and shareholders of such Holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "Holder," and any pro rata reduction with respect to such "Holder" shall
be based upon the aggregate amount of shares carrying registration rights owned
by all entities and individuals included in such "Holder," as defined in this
sentence.
(b) Expenses. All expenses incurred in connection
with a registration pursuant to this Section 1.2 (excluding underwriters' and
brokers' discounts and commissions and any additional special counsel fees for
individual Holders), including, without limitation all federal and "Blue Sky"
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Acquirer and reasonable fees and disbursements
of one counsel for the selling Holders shall be borne by the Acquirer.
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1.3 Form S-3 Registration. In case the Acquirer shall receive
from a Holder, if a Holder holds at least 100,000 shares of Registrable
Securities, a written request or requests that the Acquirer effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by the Holder, then
the Acquirer will:
(a) Notice. Promptly give written notice of the
proposed registration and the Holder's request therefor, and any related
qualification or compliance, to all other Holders of Registrable Securities; and
(b) Registration. As soon as practicable, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within twenty (20) days after receipt of such written
notice from the Acquirer; provided, however, that the Acquirer shall not be
obligated to effect or maintain any such registration, qualification or
compliance pursuant to this Section 1.3:
(1) if Form S-3 is not available for such
offering by the Holders;
(2) if the Holders, together with the
holders of any other securities of the Acquirer entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public of an amount equal to or less than
they could sell within three (3) months under Rule 144;
(3) if the Acquirer shall furnish to the
Holders a certificate signed by the President or Chief Executive Officer of the
Acquirer stating that in the good faith judgment of the Board of Directors of
the Acquirer, it would be detrimental to the Acquirer and its shareholders for
such Form S-3 Registration to be effected at such time, in which event the
Acquirer shall have the right to defer the filing of the Form S-3 registration
statement no more than once during any twelve month period for a period of not
more than 120 days after receipt of the request of the Holder or Holders under
this Section 2.4;
(4) in any particular jurisdiction in which
the Acquirer would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance; or
(5) if the Acquirer has effected two
registrations pursuant to this Section 1.3.
(c) Expenses. Subject to the foregoing, the Acquirer
shall file a Form S-3 registration statement covering the Registrable Securities
and other securities
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so requested to be registered pursuant to this Section 1.3 as soon as
practicable after receipt of the request or requests of the Holders for such
registration. The Acquirer shall pay all expenses incurred in connection with
each registration requested pursuant to this Section 1.3, (excluding
underwriters' or brokers' discounts and commissions), including, without
limitation, all filing, registration and qualification, printers' and accounting
fees and the reasonable fees and disbursements of one counsel for the selling
Holder or Holders and counsel for the Acquirer. Each Holder participating in a
registration pursuant to this Section 1.3 shall bear such Holder's proportionate
share (based on the total number of shares sold in such registration other than
for the account of the Acquirer) of all discounts, commissions or other amounts
payable to underwriters or brokers in connection with such offering.
Notwithstanding the foregoing, the Acquirer shall not be required to pay for any
expenses of any registration proceeding begun pursuant to this Section 1.3 if
the registration request is subsequently withdrawn at the request of the Holders
of a majority of the Registrable Securities to be registered, unless the Holders
of a majority of the Registrable Securities then outstanding agree to forfeit
their right to demand registration pursuant to this Section 1.3 (in which case
such right shall be forfeited by all Holders of Registrable Securities);
provided, however, that if at the time of such withdrawal, the Holders have
learned of a material adverse change in the condition, business or prospects of
the Acquirer not known to the Holders at the time of their request for such
registration and have withdrawn their request for registration with reasonable
promptness after learning of such material adverse change, then the Holders
shall not be required to pay any of such expenses and shall retain their rights
pursuant to this Section 1.3.
1.4 Obligations of the Acquirer. Whenever required to effect
the registration of any Registrable Securities under this Agreement, the
Acquirer shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its reasonable
best efforts to cause such registration statement to become effective, and, upon
the request of the Target Shareholders, if the Target Shareholders holds any
Registrable Securities, or the Holders of a majority of the Registrable
Securities registered thereunder, keep such registration statement effective for
up to thirty (30) days, which thirty-day period shall be tolled for any period
during which any of the selling Holders is prohibited from selling Acquirer
securities either pursuant to Acquirer's policy on xxxxxxx xxxxxxx or as a
result of any such Holder's position with Acquirer; provided, however, that the
selling Holders cannot sell Registrable Securities pursuant to such registration
statement while the thirty-day period is tolled.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
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(c) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them that are included in such registration.
(d) Use its reasonable best efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Acquirer shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter(s) of such offering. Each
Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing.
(g) Furnish, at the request of any Holder requesting
registration of Registrable Securities, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such securities are
being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated as of such date, of
the counsel representing the Acquirer for the purposes of such registration, in
form and substance as is customarily given to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities and (ii) a
"comfort" letter dated as of such date, from the independent certified public
accountants of the Acquirer, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
1.5 Furnish Information. It shall be a condition precedent to
the obligations of the Acquirer to take any action pursuant to Sections 1.2 or
1.3 that the selling Holders shall furnish to the Acquirer such information
regarding themselves, the
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Registrable Securities held by them, and the intended method of disposition of
such securities as shall be required to timely effect the registration of their
Registrable Securities.
1.6 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Article 1.
1.7 Indemnification. In the event any Registrable Securities
are included in a registration statement under Sections 1.2 or 1.3:
(a) By the Acquirer. To the extent permitted by law,
the Acquirer will indemnify and hold harmless each Holder, the partners,
officers and directors of each Holder, any underwriter (as defined in the
Securities Act) for such Holder and each person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended, (the "1934 Act"), against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the l934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue
statement of a material fact contained in such
registration statement, including any preliminary
prospectus or final prospectus contained therein or
any amendments or supplements thereto, provided by
Target;
(ii) 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 as a result of Target's action; or
(iii) any violation or alleged violation by
the Acquirer of the Securities Act, the 1934 Act, any
federal or state securities law or any rule or
regulation promulgated under the Securities Act, the
1934 Act or any federal or state securities law in
connection with the offering covered by such
registration statement as a result of actions of
Target;
and the Acquirer will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this
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subsection 1.7(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Acquirer (which consent shall not be unreasonably withheld),
nor shall the Acquirer be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder, partner, officer, director, underwriter or controlling person of
such Holder.
(b) By Selling Holders. To the extent permitted by
law, each selling Holder will indemnify and hold harmless the Acquirer, each of
its directors, each of its officers who have signed the registration statement,
each person, if any, who controls the Acquirer within the meaning of the
Securities Act, any underwriter and any other Holder selling securities under
such registration statement or any of such other Holder's partners, directors or
officers or any person who controls such Holder within the meaning of the
Securities Act or the 1934 Act, against any losses, claims, damages or
liabilities (joint or several) to which the Acquirer or any such director,
officer, controlling person, underwriter or other such Holder, partner or
director, officer or controlling person of such other Holder may become subject
under the Securities Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will reimburse any
legal or other expenses reasonably incurred by the Acquirer or any such
director, officer, controlling person, underwriter or other Holder, partner,
officer, director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
1.7(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; and provided,
further, that the total amounts payable in indemnity by a Holder under this
Section 1.7(b) in respect of any Violation shall not exceed the net proceeds
received by such Holder in the registered offering out of which such Violation
arises.
(c) Notice. Promptly after receipt by an indemnified
party under this Section 1.7 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
1.7, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential conflict of
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interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.7, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.7.
(d) Defect Eliminated in Final Prospectus. The
foregoing indemnity agreements of the Acquirer and Holders are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes effective or the
amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus), such indemnity agreement shall not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for just and
equitable contribution to joint liability under the Securities Act in any case
in which either (i) any Holder exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for indemnification
pursuant to this Section 1.7, but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 1.7 provides for indemnification in such case or (ii) contribution
under the Securities Act may be required on the part of any such selling Holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 1.7; then, and in each such case, the Acquirer and
such Holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion so that such Holder is responsible for the portion represented
by the percentage that the public offering price of its Registrable Securities
offered by and sold under the registration statement bears to the public
offering price of all securities offered by and sold under such registration
statement, and the Acquirer and other selling Holders are responsible for the
remaining portion; provided, however, that, in any such case, (A) no such Holder
will be required to contribute any amount in excess of the public offering price
of all such Registrable Securities offered and sold by such Holder pursuant to
such registration statement, and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
(f) Survival. The obligations of the Acquirer and
Holders under this Section 1.7 shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
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(g) Limitation of Indemnification. The
indemnification provisions contained in this Section 1.7 apply only with respect
to a registration statement covering Registrable Securities and do not apply to
any other agreement or obligation of indemnity under federal or state securities
laws between Acquirer and any Target Shareholder, including, without limitation,
any indemnification agreement between Xxxx X. Xxxx and Acquirer and any
Directors' and Officers' Insurance Policy existing for the benefit of Xxxx X.
Xxxx or Acquirer.
1.8 "Market Stand-Off" Agreement. Each Holder hereby agrees
that it shall not, to the extent requested by the Acquirer or an underwriter of
securities of the Acquirer, directly or indirectly, sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase, pledge or otherwise transfer or dispose of any Registrable
Securities for up to 90 days following the effective date of a registration
statement of the Acquirer filed under the Securities Act; provided, however,
that such agreement shall not be applicable to Registrable Securities sold
pursuant to such registration statement. In order to enforce the foregoing
covenant, the Acquirer shall have the right to place restrictive legends on the
certificates representing the shares subject to this Section and to impose stop
transfer instructions with respect to the Registrable Securities and such other
shares of stock of each Holder (and the shares or securities of every other
person subject to the foregoing restriction) until the end of such period.
1.9 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission that may at any time
permit the sale of the Registrable Securities to the public without
registration, the Acquirer agrees to:
(a) Make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities Act, at
all times;
(b) Use its reasonable best efforts to file with the
Commission in a timely manner all reports and other documents required of the
Acquirer under the Securities Act and the 1934 Act; and
(c) So long as a Holder owns any Registrable
Securities, to furnish to the Holder forthwith upon request a written statement
by the Acquirer as to its compliance with the reporting requirements of said
Rule 144, and of the Securities Act and the 1934 Act, a copy of the most recent
annual or quarterly report of the Acquirer, and such other reports and documents
of the Acquirer as a Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing a Holder to sell any such
securities without registration.
1.10 Termination of the Acquirer's Obligations. The Acquirer
shall have no obligations pursuant to Sections 1.2 and 1.3 with respect to: (i)
any request or requests for registration made by any Holder on a date more than
five (5) years after the date if this Agreement; or (ii) any Registrable
Securities proposed to be sold by a Holder in a registration pursuant to
Sections 1.2 and 1.3 if, in the opinion of counsel to the Acquirer, all such
Registrable Securities proposed to be sold by a Holder may be sold in a
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three-month period without registration under the Securities Act pursuant to
Rule 144 under the Securities Act.
1.11 Legends. It is understood and agreed by each Holder that,
for the three-year period commencing with the Effective Time (unless and until
such securities are sold pursuant to an effective Registration Statement), the
certificates or other instruments evidencing the Registrable Securities shall
bear the following or any substantially similar legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. THE INVESTOR SHOULD BE AWARE THAT IT MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN
COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
The Acquirer also may issue to its transfer agent stop transfer instructions
with respect to the stock as a means of effectuating compliance with the
limitations set forth in this Section 1.11.
1.12 Other Obligations of Holders. Each Holder hereby agrees
it shall comply with Section 16(b) of the 1934 Act and Rule 10b-6 promulgated
thereunder.
2. ASSIGNMENT AND AMENDMENT.
2.1 Assignment. Notwithstanding anything herein to the
contrary:
(a) Registration Rights. The registration rights of a
Holder under Article 1 hereof may be assigned to any party who acquires shares
of Registrable Securities with a value of $500,000 or more from the Holder;
provided, however, that no party may be assigned any of the foregoing rights
unless the Acquirer is given written notice by the assigning party at the time
of such assignment stating the name and address of the assignee and identifying
the securities of the Acquirer as to which the rights in question are being
assigned; and provided, further, that any such assignee shall receive
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such assigned rights subject to all the terms and conditions of this Agreement,
including, without limitation, the provisions of this Article 2.
2.2 Amendment of Rights. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Acquirer and the Target Shareholders (and/or any of their
permitted successors or assigns). Any amendment or waiver effected in accordance
with this Section 2.2 shall be binding upon the Target Shareholders, each
Holder, each permitted successor or assignee of the Target Shareholders or such
Holder and the Acquirer.
3. GENERAL PROVISIONS.
3.1 Governing Law. The internal laws of the State of
California (irrespective of its choice of law principles) will govern the
validity of this Agreement, the construction of its terms and the interpretation
and enforcement of the rights and duties of the parties hereto.
3.2 Assignment; Binding Upon Successors and Assigns. Subject
to the provisions of Section 2.1, the provisions of this Agreement will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
3.3 Severability. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of the void or unenforceable provision.
3.4 Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
both parties reflected hereon as signatories.
3.5 Other Remedies. Except as otherwise provided herein (and
specifically subject to the limitations in Section 1.7 above), any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby or by law on such party,
and the exercise of any one remedy will not preclude the exercise of any other.
3.6 Amendment and Waivers. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the
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Acquirer and the Target Shareholders (and/or any of their permitted successors
or assigns). Any amendment or waiver effected in accordance with this Section
3.6 shall be binding upon the Target Shareholders, each Holder, each permitted
successor or assignee of the Target Shareholders or such Holder and the
Acquirer. The waiver by a party of any breach hereof or default in the
performance hereof will not be deemed to constitute a waiver of any other
default or any succeeding breach or default. The Agreement may be amended by the
parties hereto at any time before or after approval of the Target Shareholders,
but, after such approval, no amendment will be made which by applicable law
requires the further approval of the Target Shareholders without obtaining such
further approval.
3.7 No Waiver. The failure of any party to enforce any of the
provisions hereof will not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
3.8 Expenses. Except as provided herein, each party will bear
its respective expenses and legal fees incurred with respect to this Agreement
and the transactions contemplated hereby.
3.9 Attorneys' Fees. Should suit be brought to enforce or
interpret any part of this Agreement, the prevailing party will be entitled to
recover, as an element of the costs of suit and not as damages, reasonable
attorneys' fees to be fixed by the court (including, without limitation, costs,
expenses and fees on any appeal). The prevailing party will be entitled to
recover its costs of suit, regardless of whether such suit proceeds to final
judgment.
3.10 Notices. Any notice or other communication required or
permitted to be given under this Agreement will be in writing, will be delivered
personally or by registered or certified mail, postage prepaid, and will be
deemed given upon delivery, if delivered personally, or five days after deposit
in the mails, if mailed, to the following addresses:
(i) If to Acquirer:
0000 Xxxxxxx Xxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.;
(ii) If to Target Shareholders:
00000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000;
or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 3.10.
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3.11 Construction of Agreement. This Agreement has been
negotiated by the respective parties hereto and their attorneys, and the
language hereof will not be construed for or against either party. A reference
to an Article, a Section or an exhibit will mean an Article or a Section in, or
exhibit to, this Agreement unless otherwise explicitly set forth. The titles and
headings herein are for reference purposes only and will not in any manner limit
the construction of this Agreement, which will be considered as a whole.
3.12 No Joint Venture. Nothing contained in this Agreement
will be deemed or construed as creating a joint venture or partnership between
any of the parties hereto. No party is by virtue of this Agreement authorized as
an agent, employee or legal representative of any other party. No party will
have the power to control the activities and operations of any other and their
status is, and at all times will continue to be, that of independent contractors
with respect to each other. No party will have any power or authority to bind or
commit any other. No party will hold itself out as having any authority or
relationship in contravention of this Section.
3.13 Further Assurances. Each party agrees to cooperate fully
with the other parties and to execute such further instruments, documents and
agreements, and to give such further written assurances, as may be reasonably
requested by any other party to evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents and purposes
of this Agreement.
3.14 Absence of Third-Party Beneficiary Rights. No provisions
of this Agreement are intended, nor will be interpreted, to provide or create
any third-party beneficiary rights or any other rights of any kind in any
client, customer, affiliate, stockholder or shareholder, partner or any party
hereto or any other person or entity unless specifically provided otherwise
herein, and, except as so provided, all provisions hereof will be personal
solely between the parties to this Agreement.
3.15 Public Announcement. Acquirer may issue such press
releases, and make such other disclosures regarding the Merger, as it determines
are required under applicable securities laws or regulatory rules.
3.16 Entire Agreement. This Agreement, the Plan of
Reorganization and the exhibits hereto constitute the entire understanding and
agreement of the parties hereto with respect to the subject matter hereof and
supersede all prior and contemporaneous agreements or understandings,
inducements or conditions, express or implied, written or oral, between the
parties with respect hereto. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof.
3.17 Adjustments for Stock Splits, Etc. Wherever in this
Agreement there is a reference to a specific number of shares of Common Stock of
the Acquirer, then, upon the occurrence of any subdivision, combination or stock
dividend of such class of stock, the specific number of shares so referenced in
this Agreement shall
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automatically be proportionally adjusted to reflect the affect on the
outstanding shares of such class of stock by such subdivision, combination or
stock dividend.
3.18 Aggregation of Stock. All shares held or acquired by
affiliated entities or persons shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
INTEGRATED DEVICE TECHNOLOGY, INC. XXXX X. AND XXXX XXX XXXX
By: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxx X. Xxxx
------------------------------- --------------------------
Its: President and Chief Executive Officer Xxxx X. Xxxx
/s/ Xxxx Xxx Xxxx
--------------------------
Xxxx Xxx Xxxx
XXXXX X. XXXX
/s/ Xxxxx X. Xxxx
--------------------------
Xxxxx X. Xxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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