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EXHIBIT 10.10
PLX TECHNOLOGY, INC.
STOCK RESTRICTION, INFORMATION RIGHTS AND
REGISTRATION RIGHTS AGREEMENT
This First Amended Agreement is made as of 3rd day of July 1991, among
PLX Technology, Inc., a California corporation (the company") and the persons
and entities listed on the "Schedule of Holders of Registrable Securities"
attached hereto including the purchasers of Series D Preferred Stock following
the date of this First Amended Agreement (the "Series D Purchasers")
(collectively the "Purchasers").
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, the parties hereto mutually agree as follows:
SECTION 1
Affirmative Covenants of the Company
Notwithstanding any provision of the Company's Bylaws regarding
delivery or nondelivery of financial information to shareholders of the Company,
the Company hereby covenants and agrees as follows:
1.1 Basic Financial Information. The Company will furnish the
following reports to each Purchaser for so long as it is a holder of any shares
of the Company's Series A Preferred Stock or Series B Preferred Stock or Series
C Preferred Stock or Series D Preferred Stock (collectively "Shares") or Common
Stock into which the Shares are convertible:
(a) As soon as practicable after the end of each
fiscal year, and in any event within 90 days thereafter, a consolidated balance
sheet of the Company and its subsidiaries, if any, as of the end of such fiscal
year, and a consolidated statement of income and a consolidated statement of
changes in financial position of the Company and its subsidiaries, if any, for
such year, prepared in accordance with generally accepted accounting principles
(subject to such reasonable exceptions as may be disclosed by Company) and
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and compiled and reviewed by independent
public accountants of recognized national standing selected by the Company.
(b) As soon as practicable after the end of the
first, second and third quarterly accounting periods in each fiscal year of the
Company, and in any event within 45 days thereafter, a consolidated balance
sheet of the Company and its subsidiaries, if any, as of the end of each such
quarterly period, and, if requested by holders of a majority of the Shares, a
consolidated statement of income and a consolidated statement of changes in
financial position of the Company and its subsidiaries, if any, for such period
and for the current fiscal year to date, prepared in accordance with generally
accepted accounting principles (subject to such reasonable exceptions as may be
disclosed by Company). Said financial statements shall be signed by an officer
of the Company who shall state that such financial statements are in accordance
with
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generally accepted accounting principals (subject to such reasonable exceptions
as may be disclosed by Company).
1.2 Additional Information.
(a) As long as Purchaser holds at least 150,000
Shares (or an equivalent number of Shares and/or Common Stock issued upon
conversion of the Shares), as adjusted for recapitalizations, stock splits,
stock dividends, and the like, and the Company is not subject to the reporting
requirements Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Company will deliver to such Purchaser the
following reports:
(i) As soon as practicable after the end
of each month beginning with April 1989, and in any event within 30 days
thereafter, consolidated balance sheets of the Company and its subsidiaries, if
any, at the end of such month, and consolidated statements of income and, if
requested by holders of a majority of the Shares, sources and uses of funds for
each month and for the current year to date, prepared in accordance with
generally accepted accounting principles (subject to such reasonable exceptions
as may; be disclosed by Company).
(ii) Within 30 days of the end of each
fiscal year, an operating plan for the upcoming fiscal year.
(b) For so long as a Purchaser is eligible to
receive such reports, it shall have the right to visit and inspect any of the
properties of the Company or any of its subsidiaries, and to discuss their
affairs, finances and accounts with their officers, all at such reasonable times
and as often as may be reasonably requested.
1.3 Assignment of Rights to Information. The rights granted
pursuant to Section 1.1 and 1.2 may be assigned or otherwise conveyed by any
Purchaser or by any subsequent transferee of any such rights, subject to the
satisfaction of the requirements prescribed for the rights set forth in Section
1.2; provided that the Company is given written notice by such transferee at the
time of the transfer, or within a reasonable time after such transfer, of the
name and address of such transferee and said transferee's agreement to be bound
by the provisions of Section 1.4 hereto; and provided further that the Company
may refuse such assignment or conveyance if the proposed transferee is a
competitor of the Company.
1.4 Confidentiality. Each Purchaser agrees that he or it will
keep confidential and will not disclose or divulge any confidential, proprietary
or secret information which such Purchaser may obtain from the Company, and
which is prominently marked "confidential", "proprietary" or "secret", pursuant
to financial statements, reports and other materials submitted by the Company as
required hereunder, or pursuant to visitation or inspection rights granted
hereunder unless such information is known, or until such information becomes
known, to the public, or unless the Company gives its written consent to the
Purchaser's release of such information, except that no such written consent
shall be required (and Purchaser shall be free to release such information) if
such information is to be provided to Purchaser's lawyer or
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accountant, or to an officer, director or general or limited partner of a
Purchaser provided that each such person agrees to keep such information
confidential pursuant to the terms of this Section 1.4.
1.5 Market Standoff. The Company shall obtain a market
standoff agreement in the form of Section 2.9 of this agreement from all the
holders, of securities of the Company.
SECTION 2.
Registration Rights
2.1 Certain Definitions. As used in this Section 2, the
following terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Registrable Securities" means (i) shares of the Company's
Common Stock issued or issuable pursuant to the conversion of the Series A
Preferred Stock or Series B Preferred Stock or Series C Preferred Stock or
Series D Preferred Stock of the Company (the "Existing Shares") and (ii) any
Common Stock of the Company issued as a dividend or other distribution with
respect to, or in exchange or in replacement of, the Shares, the Existing Shares
or such Common Stock.
The terms "register", "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by
the Company in complying with Sections 2.2, 2.3 and 2.10 hereof, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company, fees and disbursements of a single
counsel for the Holders, blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company which shall be paid in any
event by the Company).
"Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale.
"Holder" shall mean any holder of outstanding shares of
Registrable Securities.
"Initiating Holders" shall mean any Holder or Holders of not
less than 50% of the Registrable Securities then outstanding and not registered
at the time of any request for registration pursuant to Section 2.2 of this
agreement.
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2.2 Requested Registration. In case the Company shall receive
from Initiating Holders a written request that the Company effect any
registration (other than a registration on Form S-3 or any related form of
Registration Statement) with respect to at least twenty percent (20%) of all the
Registrable Securities the outstanding (or any lesser percentage if the
anticipated gross offering price would exceed $5,000,000), the Company will:
(a) promptly give written notice of the proposed
registration to all other Holders; and
(b) as soon as practicable, use its diligent best
efforts to effect such registration (including, without limitation, the
execution of an undertaking to file posteffective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act) as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request given within fifteen (15) days after receipt of such written
notice from the Company; provided that the Company shall not be obligated to
take any action to effect any such registration, qualification or compliance
pursuant to this Section 2.2:
(i) In any particular jurisdiction in
which the Company would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance unless the
Company is already subject to service in such jurisdiction and except as may be
required by the Securities Act;
(ii) Prior to the earlier of (A) January
1, 1993 or (B) one year following the effective date of the Company's first
registered underwritten offering to the general public of its securities for its
own account;
(iii) Within four (4) months immediately
following the effective date of any registration statement pertaining to an
underwritten public offering of securities of the Company for its own account
(other than a registration relating solely to a Commission Rule 145 transaction
or a registration relating solely to employee benefit plans or a registration on
any registration form which does not include substantially the same information
as would be required to be included in a registration statement covering the
sale of Registrable Securities); and
(iv) After the Company has effected an
aggregate of two registrations pursuant to this Section 2.2 and such
registrations have been declared or ordered effective.
Subject to the foregoing clauses (i) through (iv) and to Section
2.2(d), the Company shall file a registration statement covering the Registrable
Securities so requested to be registered as soon as practicable after receipt of
the request of the Initiating Holders, and in any event within one hundred
twenty (120) days of such request; provided, however, that if the Company shall
furnish to such Initiating Holders a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be
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seriously detrimental to the Company and its shareholders for such registration
statement to be filed on or before the date filing would be required and it is
therefore essential to defer the date of such filing, the Company shall have the
right to defer such filing for a period of not more than one hundred twenty
(120) days after receipt of the request of the Initiating Holders; provided,
however that the Company may not make such certification more than once in any
12 month period.
(c) Underwriting. If the Initiating Holders intend
to distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to Section 2.2 and the Company shall include such information in the
written notice referred to in Section 2.2(a). The right of any Holder to
registration pursuant to Section 2.2 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 requested (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders
and such Holder) to the extent provided herein.
The Company shall (together with all Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders. Notwithstanding any other provision of this Section 2.2, if the
underwriter (or the managing underwriter on behalf of the underwriters)
determines that marketing factors require a limitation of the number of shares
to be underwritten and so advises the Initiating Holders in writing, then the
Initiating Holders shall so advise all Holders' (except those Holders who have
indicated to the Company their decision not to distribute any of their
Registrable Securities through such underwriting) and the- number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all such Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities owned by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration.
If any Holder disapproves of the terms of the underwriting,
such person may elect to withdraw therefrom by written notice to the Company,
the underwriter (or managing underwriter on behalf of all of the underwriters)
and the Initiating Holders. The Registrable Securities and/or other securities
so withdrawn from such underwriting shall also be withdrawn from such
registration; provided, however, that, if by the withdrawal of such Registrable
Securities a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the maximum of any limitation imposed by
the underwriters), then the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used in determining the
underwriter limitation in this Section 2.2(c).
If the underwriter (or managing underwriter on behalf of all
of the underwriters) has not limited the number of Registrable Securities to be
underwritten, the Company may include securities for its own account in such
registration if the underwriters so agree and if the number
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of Registrable Securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
(d) Delay of Registration. If at the time of any
request to register Registrable Securities pursuant to this Section 2.2 the
Company is engaged or has fixed plans to engage within sixty (60) days of the
time of the request in a registered public offering as to which the Holders may
include Registrable Securities pursuant to Sections 2.2 or 2.3, then the Company
may at its option direct that such request be delayed for a period not in excess
of six months from the effective date of such offering, provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and, provided further, that no other
person or entity could require the Company to file a registration statement
during such period. Such right to delay a request may be exercised by the
Company not more than once in any two-year period.
2.3 Company Registration.
(a) If at any time or from time to time, the Company
shall determine to register any of its Common Stock, for its own account or for
the account of stockholders (other than the Holders) exercising any demand
registration rights which they may have, other than a registration relating
solely to employee benefit plans, or a registration relating solely to a
Commission Rule 145 transaction or any Rule adopted by the Commission in
substitution thereof or in amendment thereto, or a registration on any
registration form which does not include substantially the same information as
would be required to be included in a registration statement covering the sale
of Registrable Securities, the Company will:
(i) promptly give to each Holder written
notice thereof ; and
(ii) include in such registration (and any
related qualification under blue sky laws or other compliance therewith), and in
any underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made within fifteen (15) days after receipt of such
written notice from the Company, by any Holder or Holders.
(b) Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Section 2.3(a)(i). In such event the right of any
Holder to registration pursuant to Section 2.3 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 securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 2.3, if the
underwriter (or managing underwriter on behalf of all of the underwriters)
determines that marketing factors require a limitation of the number of shares
to be underwritten, the underwriter (or managing underwriter on behalf of all of
the underwriters) may exclude some or all Registrable Securities from such
registration and underwriting. The Company shall so advise all Holders (except
those
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Holders who have indicated to the Company their decision not to distribute any
of their Registrable Securities through such underwriting), and the number of
shares of Registrable Securities that may be included in the registration and
underwriting shall be allocated among such Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities owned by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any Holder
disapproves of the terms of any such underwriting, such person may elect to
withdraw therefrom by written notice to the Company and the underwriter. The
Registrable Securities and/or other securities so withdrawn from such
underwriting shall also be withdrawn from such registration.
2.4 Expenses of Registration. All Registration
Expenses incurred in connection with any registration, qualification or
compliance pursuant to Section 2.2 or any registration under Section 2.3 or
Section 2.10 shall be borne by the Company; and all Selling Expenses shall be
borne by the holders of the securities so registered prorata on the basis of the
number of shares so registered; provided, however, that if a request for
registration pursuant to Section 2.2 is made at a time when the Company is
unable to use year-end financial statements in the registration statement filed
pursuant to such request and a special audit is required because of such
inability, then the Company shall bear up to $15,000 of the costs and fees of
the Company's auditors resulting from such special audit, and any additional
costs and fees in excess of $15,000 resulting from such special audit shall be
allocable to the sellers, including the Company, of the securities so
registered, borne pro rata on the basis of the number of shares registered.
2.5 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 2,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Keep such registration, qualification or
compliance effective for a period of one hundred twenty (120) days or until the
Holder or Holders have completed the distribution described in the registration
statement relating thereto, whichever first occurs;
(b) Furnish such number of prospectuses and other
documents incident thereto as a Holder from time to time may reasonably request;
(c) Use its best efforts and qualify the securities
covered by such registration statement under such securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders, provided
that the Company 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 such states or jurisdictions;
(d) 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 underwriter or underwriters of
such offering. Each Holder participating in such underwriting shall also enter
into and perform its obligations under such an agreement; and
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(e) Notify each Holder of Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto covered by such registration statement 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.
2.6 Indemnification.
(a) The Company will indemnify each Holder, each of
its officers and directors and partners, and such Holder's legal counsel and
independent accountants and each person controlling such Holder, with respect to
whose Registrable Securities registration, qualification or compliance has been
effected pursuant to this Section 2, and each underwriter, if any, and each
person who controls any underwriter against all claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on (i) any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other similar
document (including any amendment or supplement thereto and any related
registration statement notification or the like) incident to any such
registration, qualification or compliance, or based on 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 in the light of the
circumstances under which they were made, or (ii) any violation by the Company
of any federal, state or common law rule or regulation applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, qualification or compliance, and will reimburse each such
Holder, each of its officers, directors and partners, and such holder's legal
counsel and independent accountants and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission based upon written information furnished to the
Company by an instrument duly executed by such Holder or underwriter and stated
to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held
by such Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each legal counsel and independent accountant of the
Company, each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such underwriter
within the meaning of the Securities Act, and each other such Holder, each of
its officers and directors and each person controlling such Holder, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other similar document (including any amendment or
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supplement thereto), or 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 in the light of the circumstances under which they were
made, and will reimburse the Company, such Holders, such directors, officers,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein;
provided, however, that the obligations of such Holders hereunder shall be
limited to an amount equal to the proceeds to each such Holder of Registrable
Securities sold as contemplated herein.
(c) Each party entitled to indemnification under
this Section 2.6 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has received written notice of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom, provided that
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be approved by the Indemnified Party (whose approval shall
not unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, provided, however that the Indemnifying Party
shall bear the expense of such Indemnified Party if the Indemnified Party
reasonably determines that representation of both parties by the same counsel
would be inappropriate due to actual or potential conflicts of interest. The
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 2 unless
such failure to give notice shall materially adversely affect the Indemnifying
Party in the defense of any such claim or any such litigation. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.
2.7 Information by Holder. The Holder or Holders of
Registrable Securities included in any registration shall furnish to the Company
such information regarding such Holder or Holders and the distribution proposed
by such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Section 2.
2.8 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Restricted Securities to the public without
registration, after such time as a public market exists for the Common Stock of
the Company, the Company agrees to:
(a) Use its best efforts to facilitate the sale of
the Restricted Securities to the public, without registration under the
Securities Act, pursuant to Rule 144 under the
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Securities Act ("Rule 144"), provided that th is shall not-require the Company
to file reports under the Securities Act and the Exchange Act at anytime prior
to the Company's being otherwise required to file such reports.
(b) Make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities Act at
all times after the effective date of the first registration under the
Securities Act filed by the Company for an offering of its securities to the
general public;
(c) Use its best efforts to file with the Commission
in a timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act, as amended (at any time after it has
become subject to such reporting requirements);
(d) So long as a Purchaser owns any Restricted
Securities, to furnish to the Purchaser forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 (at any time after ninety (90) days after the effective date of the
first registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements),
(ii) a copy of the most recent annual or quarterly report of the Company, and
(iii) such other reports and documents so filed by the Company as a Purchaser
may reasonably request in availing itself of any rule or regulation of the
Commission allowing a Purchaser to sell any such securities without
registration.
2.9 "Market Stand-off" Agreement. Purchasers hereby agree, if
requested by the Company and the underwriter managing the offering of Common
Stock (or other securities) of the Company, not to sell or otherwise transfer or
dispose of any Common Stock (or other securities) of the Company held by
Purchasers, without the prior consent of the Company or of such underwriter
during any period requested by the Company and such underwriter (not to exceed
one hundred fifty (150) days) following the effective date of a registration
statement of the Company filed under the Securities Act provided that:
(a) such agreement shall only apply to the first
such registration statement of the Company including shares (or securities) to
be sold on its behalf to the public in an underwritten offering; and
(b) all officers and directors of the Company enter
into similar agreements. The Company may impose stop-transfer instructions with
respect to the shares (or securities) subject to the foregoing restriction until
the end of said period.
2.10 Form S-3. The Company shall use its best efforts to
qualify for registration on Form S-3 and to that end the Company shall register
(whether or not required by law to do so) its Common Stock under the Exchange
Act within one hundred twenty (120) days following the end of the fiscal year in
which the Company first registered any securities of the Company on Form S1.
After the Company has qualified for the use of Form S-3, the Holders of
Registrable Securities shall have the right to request up to two (2)
registrations on Form S-3 in
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each twelve month period thereafter under this Section 2.10 (such requests shall
be in writing and shall state the number of shares of Registrable Securities to
be disposed of and the intended method of disposition of such shares by such
Holder or Holders), provided that the Company shall not be required to effect a
registration pursuant to this Section 2.10 unless the Holder or Holders
requesting registration propose to dispose of shares of Registrable Securities
which they reasonably anticipate will have an aggregate disposition price
(before deduction of underwriting discounts and expenses of sale) of at least
$500,000.
The Company shall give notice to all Holders of Registrable Securities
of the receipt of a request for registration pursuant to this Section 2.10 and
shall provide a reasonable opportunity for other Holders to participate-in the
registration. In the event a registration pursuant to this Section 2.10 shall be
underwritten, the substantive provisions of Section 2.2(c) shall apply to such
underwritten registration. Subject to the foregoing, the Company will use its
best efforts to effect promptly the registration of all shares of Registrable
Securities on Form S-3 to the extent requested by the Holder or Holders thereof
for purposes of disposition, and in any event within ninety (90) days of such
request; provided, however, that if the Company shall furnish to such Initiating
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such registration
statement to be filed on or before the date filing would be required and it is
therefore essential to defer the date of such filing, the Company shall have the
right to defer such filing for a period of not more than sixty (60) days after
receipt of the request of the Initiating Holders; provided, however that the
Company may not make such certification more than once in any 12 month period.
2.11 Transfer of Registration Rights. The rights to cause the
Company to register securities granted Purchasers under Sections 2.2, 2.3 and
2.10 may be assigned or otherwise conveyed by any Holder; provided, that the
Company is given written notice by such transferee at the time of or within a
reasonable time after said transfer, stating the name and address of said
transferee and said transferee's agreement to be bound by the provisions of
Section 2. of this agreement. Each Purchaser will cause any proposed transferee
of the Shares (or of the Common Stock into which the Shares are convertible)
held by a Purchaser to agree to take and hold such securities subject to the
provisions and upon the conditions specified in this Section 2.
2.12 Certain Limitations in Connection with Future Grants of
Registration Rights. From and after the date of this agreement, the Company
shall not, without the consent of at least 67% of the Registrable Securities
then held by Holders, enter into any agreement with any holder or prospective
holder of any securities of the Company providing for the granting to such
holder of registration rights except that the Company may, without such consent,
amend this Agreement to provide any prospective holder which acquires securities
in a financing to raise capital for the Company may have Common Stock issuable
as a result of such financing included in the definition of "Registrable
Securities" hereunder, provided that the rights thereby granted are shared pro
rata with the existing Holders.
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2.13 Termination of Registration Rights. The rights granted to
any holder under Section 2.3 to include Registrable Securities in any
registration shall terminate ten (10) years from the date of the Company's
initial registration statement including shares on its behalf to be sold to the
public is declared effective by the Commission and shall also terminate earlier
(but in no event prior to one year after the date of the Company's initial
public offering, as to any Holder who could sell all shares of Common Stock in
any 90 day period pursuant to Rule 144.
SECTION 3.
Restrictions on Transferability of Notes; Compliance with Securities Act
3.1 Restrictions on Transferability. The Series B Preferred
Stock which certain Purchasers received upon the conversion of certain
convertible promissory notes and the Series C Preferred Stock which certain
Purchasers received in exchange for cash and the Series D Preferred Stock which
certain Series D Purchasers are receiving in exchange for cash (collectively
"Shares"), and the Common Stock into which Series B and Series C and Series D
Preferred Stock is convertible, shall not be transferable except upon the
conditions specified in this Section 3, which conditions are intended to insure
compliance with the provisions of the Securities Act. Each Purchaser will cause
any proposed transferee of Shares or of the Common Stock into which the Shares
are convertible held by a Purchaser to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Section 3.
Each Purchaser represents that it (i) is experienced in evaluating and investing
in high technology companies such as the Company, (ii) is experienced in
investing in private placement transactions, (iii) is capable-of evaluating the
risks and merits of its investment in the Company and has the capacity to
protect its own interests, (iv) is acquiring the Shares for investment for its
own account and not with a view to, or for resale in connection with, any
distribution thereof, and it has no present intention of selling or distributing
the Shares or any of the Common Stock into which the Shares are convertible, (v)
understands that the shares have not been registered under the Securities Act
and must be held indefinitely unless subsequently registered under the
Securities Act or unless an exemption from registration is available and that no
public market now exists for any securities of the Company and that a public
market may never exist for the Shares or the Common Stock into which they are
convertible, and (vi) has had an opportunity to discuss the Company's business,
management and financial affairs with its management and obtain any additional
information it considered necessary or desirable.
3.2 Restrictive Legend. Each certificate representing (i) the
Shares or (ii) shares of the Company's Common Stock issued upon conversion of
the Series B or Series C or Series D Preferred Stock and (iii) any securities
issued in respect of such Preferred Stock or Common Stock (collectively,
"Restricted Securities"), shall (unless otherwise permitted by the provisions of
Section 3.3 below) be stamped or otherwise imprinted with a legend substantially
in the following form (in addition to any legend required under applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER
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SAID ACT OR AS PROVIDED IN THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES
AND RESTRICTING THEIR TRANSFER. COPIES OF THE AGREEMENT MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE CORPORATION AT THE CORPORATION'S PRINCIPAL PLACE OF BUSINESS.
3.3 Notice of Proposed Transfers. The holder of each
certificate representing Restricted Securities by acceptance thereof agrees to
comply in all respects with the provisions of this Section 3.3. Prior to any
proposed transfer of any Restricted Securities, unless there is in effect a
registration statement under the Securities Act covering the proposed transfer,
the holder thereof shall give written notice to the Company of such holder's
intention to effect such transfer. Each such notice shall describe the manner
and circumstances of the proposed transfer in sufficient detail, and shall be
accompanied (except in the following cases, with respect to which the
requirements set forth in the balance of this sentence need not be complied
with: transactions in compliance with Rule 144 so long as the Company is
furnished with evidence of compliance with such Rule; transactions involving the
distribution of Restricted Securities by any Purchaser which is a general or
limited partnership to any of its partners, or retired partners, or to the
estate of any of its partners or retired partners, so long as such transaction
does not involve the disposition of such Restricted Securities for value;
transactions involving the transfer of Restricted Securities by any holder who
is an individual to a trust for the benefit of such shareholder or his family
members; or transfer by gift, will or intestate succession by any holder who is
an individual to his spouse, lineal descendants or ancestors) by either (i) an
unqualified written opinion of legal counsel who shall be reasonably
satisfactory to the Company addressed to the Company and reasonably satisfactory
in form and substance to the Company's counsel, to the effect that the proposed
transfer of the Restricted Securities may be effected without registration under
the Securities Act, or (ii) a "no action" letter from the Commission to the
effect that the distribution of such securities without registration will not
result in a recommendation by the staff of the Commission that action be taken
with respect thereto, whereupon the holder of such Restricted Securities shall
be entitled to transfer such Restricted Securities in accordance with the terms
of the notice delivered by the holder to the Company. Each certificate
evidencing the Restricted Securities transferred as above provided shall bear
the appropriate restrictive legend set forth in Section 3.2 above, except that
such certificate shall not bear such restrictive legend if in the opinion of
counsel for the Company such legend is not required in order to establish
compliance with any provisions of the Securities Act.
SECTION 4.
Miscellaneous
4.1 Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts between California residents entered into and to be performed entirely
within the State of California.
4.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Purchaser and
the closing of the transactions contemplated hereby.
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4.3 Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
4.4 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire understanding
and agreement between the parties with regard to the subjects hereof and
thereof. Any term of this Agreement may be amended and the observance of any
term of this agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and the holders of at least 67% of the outstanding Existing Shares,
as defined in Section 2.1, (including, for such purposes, on a proportional
basis, any shares of Common Stock into which any of the Existing Shares have
been converted that have not been sold to the public). Any amendment or waiver
effected in accordance with this section shall be binding upon each holder of
any securities purchased under this agreement at the time outstanding (including
securities into which such securities have been converted), each future holder
of all such securities, and the Company. Provided, however, consent of sixty
seven (67%) of the holders of a Series of Preferred Stock shall be required for
any amendment that would adversely affect that Series in a different manner than
other shares of the Preferred Stock.
4.5 Effect of Amendment or Waiver. Each Purchaser acknowledges
that by the operation of Section 4.4 hereof the holders of 67% of the
outstanding Existing Shares (and Common Stock issued upon conversion thereof),
or of a Series (as the case may be), will have the right and power to diminish
or eliminate all rights of such Purchaser under this Agreement.
4.6 Rights of Purchasers. Each holder of the Shares (and
Common Stock issued upon conversion thereof) shall have the absolute right to
exercise or refrain from exercising any right or rights that such holder may
have by reason of this Agreement or the Existing Shares of including without
limitation the right to consent to the waiver of any obligation of the Company
under this Agreement and to enter into an Agreement with the Company for the
purpose of modifying this Agreement or any agreement effecting any such
modification, and such holder shall not incur any liability to any other holder
or holders of the Existing Shares with respect to exercising or refraining from
exercising any such right or rights.
4.7 Notices, etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
first-class mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed (a) if to a Purchaser, at such Purchaser's address set
forth in the Schedule of Holders of Registrable Securities, or at such other
address as such Purchaser shall have furnished to the Company in writing, or (b)
if to any other holder of any Shares, at such address as such holder shall have
furnished the Company in writing, or, until any such holder so furnishes an
address to the Company, then to and at the address of the last holder of such
Shares who has so furnished an address to the Company, or (c) if to the Company,
at 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 or at such other address as
the Company shall have furnished to each Purchaser and each such other holder in
writing and shall be deemed to have been received (a) upon delivery if delivered
by hand or by messenger or (b) five (5) days after mailing, if mailed.
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4.8 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any holder of any Existing Shares, upon any
breach or default of the Company under this Agreement, shall impair any such
right, power or remedy of such holder nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereunder occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any holder of any breach or default under
this Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
4.9 Counterparts. This Agreement may be executed in any number
of counterparts, each of which may be executed by less than all of the
Purchasers, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
4.10 Severability. In the case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
4.11 Gender. The use of the neuter gender herein shall be
deemed to include the masculine and the feminine gender, if the context so
requires.
4.12 Effectiveness. This Agreement was initially effective
upon execution by holders of at least eighty percent (80%) of the Existing
Shares. This First Amended Agreement shall be effective upon approval by 67% of
the Purchasers as defined under the Agreement, and execution by the Series D
Purchasers.
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This First Amended Agreement is hereby executed as of the date first
above written. PLX TECHNOLOGY, INC.
PLX TECHNOLOGY, INC.
By:__________________________
Xxxxxxx X. Xxxxxxx
President
Schedule of Holders of Registrable
Securities
("PURCHASERS")
CALIFORNIA PARTNERS
XXXXXX ASSOCIATES,
a California Limited Partnership
By:_____________________________________
Xxxxxxx X. Xxxxxx
Chief Financial Officer
ARBOR FINANCIAL CORPORATION
By:_____________________________________
D. Xxxxx Xxxx President
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L.S. & Co.
By:_____________________________________
Xxxxxxxx X. Xxxxxxxx
BEAGLE LTD.
By:_____________________________________
Xxxx Xxxxxxx
By:_____________________________________
Xxxxxxx X. Xxxxxxx
By:_____________________________________
Xxxxxxx X. Xxxxxx III
GC&H PARTNERS
By:_____________________________________
Xxxxxxx Xxxxxxxx
By:_____________________________________
Xxxxxxx Xxxxxxx
By:_____________________________________
Xxxxxx Xxxxxxx
By:_____________________________________
Xxx-Xx Xxx
00
00
XXX
By:_____________________________________
Xxxxxx Xxxxx
By:_____________________________________
Xxxxx Xxxxxxxx
By:_____________________________________
Xxxxxxx Xxxxxxx
By:_____________________________________
D. Xxxxx Xxxx, Xx.
By:_____________________________________
Xxxxxxx Xxxxxxx
By:_____________________________________
Xxxxxxx Xxxxxx
By:_____________________________________
Onslow Xxxxxxx
By:_____________________________________
Xxxxxxx Xxxxxxx
By:_____________________________________
Xxxxx Xxx
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SIGNATURES OF SERIES D PURCHASERS:
FIRM NAME: ____________________________________
SIGNATURE: By: ________________________________
NAME: ____________________________________
FIRM NAME: ____________________________________
SIGNATURE: By: ________________________________
NAME: ____________________________________
FIRM NAME: ____________________________________
SIGNATURE: By: ________________________________
NAME: ____________________________________
FIRM NAME: ____________________________________
SIGNATURE: By: ________________________________
NAME: ____________________________________
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