EXHIBIT C
AMENDMENT NO. 1 TO REGISTRATION AGREEMENT
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THIS AMENDMENT NO. 1 TO REGISTRATION AGREEMENT ("Amendment No. 1") is
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made and entered into as of December 29, 1999, by and among Integrated Circuit
Systems, Inc., a Pennsylvania corporation (the "Company"), each of the Persons
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listed on Schedule I attached hereto (the "Xxxx Stockholders"), each of the
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Persons listed on Schedule II attached hereto (the "Bear Xxxxxxx Stockholders")
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and each of the Persons listed on Schedule V attached hereto (the "Intel
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Stockholders").
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All of the Stockholders other than the Intel Stockholder are parties
to that certain Registration Agreement dated as of May 11, 1999 (the "Original
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Agreement"). Pursuant to a Series A Cumulative Convertible Preferred Stock
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Purchase Agreement dated December 23, 1999 between the Company and Intel
Corporation (the Purchase Agreement"), the Company has agreed to sell to Intel
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Corporation, and Intel Corporation has agreed to purchase from the Company,
certain shares of the Company's Series A Cumulative Convertible Preferred Stock
(the "Preferred Stock"). Pursuant to the Purchase Agreement, the Company has
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agreed to provide certain registration rights to the Intel Stockholders, as more
particularly set forth in this Amendment.
The parties hereto, intending to be legally bound, hereby agree as
follows:
1. Amendment to Original Agreement. This Amendment constitutes an
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amendment to the Original Agreement. The Original Agreement, as amended by this
Amendment, is herein referred to as the "Agreement." Except as specifically
amended pursuant to the terms of this Amendment, all of the terms of the
Original Agreement shall continue in full force and effect. Unless otherwise
provided in this Agreement, capitalized terms used herein shall have the
meanings set forth in paragraph 9 of the Agreement.
2. Demand Registrations. Paragraphs (a), (b), (c) and (g) of Section
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1 of the Original Agreement are hereby amended to read in full as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after the date
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hereof and prior to an IPO, the holders of a majority of the Class
A Common (excluding any shares of Class A Common issued upon
conversion of Preferred Stock) may request, and at any time after
an IPO, subject to the limitations set forth in Section 1(b) and
1(c) hereof, the holders of a majority of the Xxxx Registrable
Securities, the holders of a majority of the Intel Registrable
Securities or the holders of a majority of Bear Xxxxxxx
Registrable Securities may request a registration (a "Demand")
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under the Securities Act of all or part of their Registrable
Securities on Form S-1 or any similar long-form registration
("Long-Form Registrations") or, if available, on
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Form S-2 or S-3 (including pursuant to Rule 415 under the
Securities Act) or any similar short-form registration ("Short-
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Form Registrations"). Each Demand shall specify the approximate
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number of Registrable Securities requested to be registered and
the anticipated per share price range for such offering. Within
ten (10) days after receipt of any Demand, the Company will give
written notice of such requested registration to all other holders
of Registrable Securities and, subject to paragraph 1(d) below,
will include in such registration all Registrable Securities with
respect to which the Company has received written requests for
inclusion therein within fifteen (15) days after the receipt of
the Company's notice. All registrations requested pursuant to this
paragraph 1(a) are referred to herein as "Demand Registrations."
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(b) Long-Form Registrations. The holders of a majority of the
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Xxxx Registrable Securities will be entitled to request (i) three
Long-Form Registrations in which the Company will pay all
Registration Expenses and (ii) any other number of Long-Form
Registrations in which Registration Expenses will be paid in
accordance with Section 5(c) hereof. Each of the following groups
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will be entitled to request one Long-Form Registration in which
the Company will pay all Registration Expenses: (i) the holders of
a majority of the Intel Registrable Securities and (ii) the
holders of a majority of the Bear Xxxxxxx Registrable Securities.
A registration shall not count as one of the permitted Long-Form
Registrations until it has become effective and the holders of
Registrable Securities initially requesting the Long-Form
Registration are able to register and sell at least 95% of the
Registrable Securities requested to be included in such
registration by such holders; provided that in any event the
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Company will pay all Registration Expenses in connection with any
registration initiated as a Long-Form Registration whether or not
it has become effective and whether or not such registration has
counted as one of the permitted Long-Form Registrations. Long-Form
Registrations may be underwritten or non-underwritten
registrations.
(c) Short-Form Registrations. In addition to the Long-Form
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Registrations provided pursuant to Section 1(b): (i) holders of a
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majority of Xxxx Registrable Securities will be entitled to
request unlimited Short-Form Registrations in which the Company
will pay all Registration Expenses; and (ii) each of the following
groups will be entitled to request three Short-Form
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Registrations (to be filed no more frequently than one in any six-
month period) in which the Company will pay all Registration
Expenses: (1) the holders of a majority of Intel Registrable
Securities and (2) the holders of a majority of the Bear Xxxxxxx
Registrable Securities. Notwithstanding anything contained herein
to the contrary, Demand Registrations will be Short-Form
Registrations whenever the Company is permitted to use any
applicable short form. After the Company has become subject to the
reporting requirements of the Securities Exchange Act, the Company
will use its best efforts to make Short-Form Registrations
available for the sale of Registrable Securities.
(d) Priority on Demand Registrations. The Company will not
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include in any Demand Registration any securities which are not
Registrable Securities without the prior written consent of the
holders of a majority of the Xxxx Registrable Securities or, in
the case where the holders of Intel Registrable Securities or Bear
Xxxxxxx Registrable Securities have made a Demand pursuant to
Section 1, the holders of a majority of Intel Registrable
Securities or Bear Xxxxxxx Registrable Securities, respectively.
If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing (with a copy
to each party hereto requesting registration of Registrable
Securities) that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested
to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold therein
without adversely affecting the marketability of the offering, the
Company will include in such registration prior to the inclusion
of any securities which are not Registrable Securities: (i)
subject to the proviso set forth below, not less than 20% of the
securities requested to be registered by the holders requesting
such Demand Registration, (ii) the number of Registrable
Securities requested to be included which in the opinion of such
underwriters can be sold without adversely affecting the
marketability of the offering, (1) subject to the proviso set
forth below, first pro rata among the respective holders
requesting such Demand Registration under Section 1(a), and then
(2) to the extent that any additional Registrable Securities can
still be included, pro rata among the respective holders of the
remaining Registrable Securities on the basis of the amount of
Registrable Securities owned by each such holder and then (3) to
the extent that any securities which are not Registrable
Securities can still be
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included, pro rata among the respective holders thereof on the
basis of the amount of such securities owned by each such holder;
provided, however, that the priorities set forth in clauses (i)
and (ii)(1) set forth above shall not apply if holders of
Registrable Securities making the Demand have registered any
Registrable Securities in the six months preceding the date of the
Demand. Any Persons other than holders of Registrable Securities
who participate in Demand Registrations which are not at the
Company's expense, if any, must pay their share of the
Registration Expenses as provided in Section 5 hereof.
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* * * * *
(g) Selection of Underwriters. The holders of a majority of
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the Xxxx Registrable Securities or, in the case where the holders
of Intel Registrable Securities have requested the Demand
Registration pursuant to Section 1, the holders of a majority of
Intel Registrable Securities, or, in the case where the holders of
Bear Xxxxxxx Registrable Securities have requested the Demand
Registration pursuant to Section 1, the holders of a majority of
Bear Xxxxxxx Registrable Securities, will have the right to select
the investment banker(s) and manager(s) to administer the
offering."
3. Restrictions on Demand Registrations. Paragraph (e) of Section 1
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of the Original Agreement is hereby amended by replacing the words "six months"
in the second sentence thereof with the words "90 days" and by adding the
following to the end of the first sentence thereof: "provided, further that the
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Company may postpone the filing or effectiveness of a registration statement in
accordance with this Section 3 no more than 90 days in any 12-month period."
4. Holdback Agreements. Paragraph (a) of Section 3 of the Original
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Agreement is hereby amended to read in full as follows:
"3. Holdback Agreements.
(a) Notwithstanding anything else in this Agreement to the
contrary (but subject to the proviso in the last sentence of this
paragraph 3(a)), to the extent not inconsistent with applicable
law, each holder of Registrable Securities agrees not to effect
any public sale or distribution (including sales pursuant to Rule
144) of equity securities of the Company, or any securities,
options or rights convertible into or exchangeable or exercisable
for such securities during the period (the "LockUp Period") that
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is agreed to with respect to such holder by the
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underwriter managing the registered public offering and the
Company, with the consent of the holders of a majority of the Xxxx
Registrable Securities (in the case of a Piggyback Registration)
or the underwriter managing the registered public offering and the
holders of a majority of the Xxxx Registrable Securities included
in such registration (in the case of a Demand Registration);
provided that the LockUp Period shall not be more restrictive upon
the holders of Intel Registrable Securities or Bear Xxxxxxx
Registrable Securities than upon the holders of Xxxx Registrable
Securities. The LockUp Period may include a period before and a
period after the effective date of any (i) underwritten Demand
Registration (except as part of such underwritten registration),
or (ii) underwritten Piggyback Registration (except as part of
such underwritten registration or pursuant to registrations of
Form S-4 or Form S-8 or any successor form); provided that the
portion of the LockUp Period following the effective date of any
registration shall in no event exceed the 180-day period following
such effective date; and further provided that with respect to any
holders of Intel Registrable Securities or Bear Xxxxxxx
Registrable Securities, after a Qualified Initial Public Offering
has taken place, the holders of Intel Registrable Securities and
Bear Xxxxxxx Registrable Securities shall be subject to a LockUp
Period with respect to such Intel Registrable Securities and Bear
Xxxxxxx Registrable Securities only if: (x) such holders offer
securities in the registration that is the subject of such LockUp
Period, (y) officers and directors of the Company enter into
holdback agreements providing for restrictions during the LockUp
Period that are no less restrictive than those that are applicable
to such holders, and (z) the portion of the LockUp Period
following the effective date of such registration does not exceed
the 90-day period following such effective date."
5. Definitions. Section 9 of the Original Agreement is hereby
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amended by amending the defined terms in the Agreement that are set forth below
and by adding definitions for the terms "Intel Registrable Securities" and
"Qualified Initial Public Offering," as follows:
"Group" means each of the Xxxx Stockholders, the Bear
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Xxxxxxx Stockholders, the Executive Stockholders, the Intel
Stockholders and the holders of Other Registrable Securities.
"Intel Registrable Securities" means (i) any shares of
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Common Stock issuable upon conversion of Preferred Stock; and (ii)
any shares of Common Stock issued or
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issuable directly or indirectly with respect to the securities
referred to in clause (i) by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization, including a
recapitalization or exchange; provided that in the event that
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pursuant to such recapitalization or exchange, Non-Participating
Securities are issued, such Non-Participating Securities will not
be Registrable Securities.
"IPO" means the initial sale of Common Stock to the public
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pursuant to an underwritten offering registered under the
Securities Act.
"Qualified Initial Public Offering" shall have the meaning
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given in the Stockholders Agreement.
"Other Registrable Securities" means any shares of Common
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Stock held by Other Stockholders or other Persons that are a
party to this Agreement that are of the same class and type as
Xxxx Registrable Securities but that do not constitute Xxxx
Registrable Securities, Bear Xxxxxxx Registrable Securities,
Intel Registrable Securities or Executive Stockholder Registrable
Securities.
"Preferred Stock" means any capital stock of the Company
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having a preference over the Common Stock as to dividends or
assets or both and that is convertible into Common Stock.
"Registrable Securities" means collectively the Xxxx
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Registrable Securities, Bear Xxxxxxx Registrable Securities,
Intel Registrable Securities, Executive Stockholder Registrable
Securities and Other Registrable Securities. For purposes of this
Agreement, a Person will be deemed to be a holder of Registrable
Securities whenever such Person has the right to acquire such
Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected, and,
except as set forth in the definition of "Executive Stockholder
Registrable Securities", such Person shall be entitled to
exercise the rights of a holder of Registrable Securities
hereunder. As to any particular shares constituting Registrable
Securities, such shares will cease to be Registrable Securities
when they have been (x) effectively registered under the
Securities Act and disposed of in
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accordance with the registration statement covering them, or (y)
sold to the public through a broker, dealer or market maker
pursuant to Rule 144 (or by similar provision then in force)
under the Securities Act.
All other defined terms set forth in Section 9 of the Original Agreement that
are not amended as set forth in this Section 5 shall remain in full force and
effect.
6. Miscellaneous.
(a) The provisions of paragraphs (d), (f), (g), (h), (i) and (j)
of Section 10 of the Original Agreement are incorporated by reference herein as
if set forth in full in this Amendment.
(b) Paragraph (e) of Section 10 of the Original Agreement is
hereby amended to read in full as follows:
"(e) Additional Parties. The Board of Directors of the
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Company shall be entitled, but not obligated, with the consent of Person(s)
holding at least a majority of the Xxxx Registrable Securities, to allow
any purchaser of equity securities (or securities or rights convertible or
exercisable into equity securities), of the same type and class of the
Registrable Securities, to execute a counterpart to this Agreement and
become a party hereto (each, an "Additional Party"), in which case the
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equity securities issued or issuable to any such Additional Party shall be
deemed a holder of "Executive Stockholder Registrable Securities," "Xxxx
Registrable Securities", "Bear Xxxxxxx Registrable Securities," "Intel
Registrable Securities" or "Other Registrable Securities," as the case may
be, in accordance with the definitions thereof; provided, however, that if
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allowing such Person to become an Additional Party shall adversely affect
any Group in a manner adversely different than any other Group, no such
Person shall become an Additional Party without the prior written consent
of such Group adversely affected thereby (with it being understood that if
the admission of an Additional Party is adversely different to the holders
of Bear Xxxxxxx Registrable Securities or otherwise reduces or diminishes
any rights applicable to the holders of Bear Xxxxxxx Registrable Securities
without reducing or diminishing the same rights applicable to the holders
of Xxxx Registrable Securities in the same manner, such admission shall
require the consent of the holders of a majority of the Bear Xxxxxxx
Registrable Securities). Except as set forth in this Section 10(e), the
Company will not grant to any other Persons any registration rights."
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(c) The obligations of the parties hereto with respect to Intel
Registrable Securities, and any rights of the holders of Intel Registrable
Securities set forth herein, shall expire, to the extent not earlier terminated
or expired, on the seventh anniversary of the first issuance of a share of
Preferred Stock.
(d) Paragraph (c) of Section 2 of the Original Agreement is hereby
amended by replacing the word "os" in the last sentence thereof with the word
"of."
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
INTEGRATED CIRCUIT SYSTEMS, INC.
By: /S/ XXXX X. XXX
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Name: Xxxx X. Xxx
Its: President and Chief Executive Officer
INTEL CORPORATION
By: /S/ Arvind Sodhni
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Name: Arvind Sodhni
Its: Vice President and Teasurer
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XXXX STOCKHOLDERS:
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XXXX CAPITAL FUND VI, L.P. BCIP ASSOCIATES II-B
By: Xxxx Capital Partners VI, L.P. By:/S/ XXXXXXX XXXXXX
Its: General Partner ----------------------------------
Name: Xxxxxxx Xxxxxx
Its: Managing Director
By: Xxxx Capital Investors VI, Inc.
Its: General Partner
By: /S/ XXXXXXX XXXXXX BCIP ASSOCIATES II-C
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Name: Xxxxxxx Xxxxxx
Its: Managing Director
By: /S/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
BCIP TRUST ASSOCIATES II Its: Managing Director
By: /S/ XXXXXXX XXXXXX PEP INVESTMENTS PTY LTD.
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Name: Xxxxxxx Xxxxxx
Its: Managing Director
By: /S/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
BCIP TRUST ASSOCIATES II-B Its: Managing Director
By: /S/ XXXXXXX XXXXXX XXXXXXXX STREET PARTNERS II
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Name: Xxxxxxx Xxxxxx
Its: Managing Director
By:________________________________
Name:
BCIP ASSOCIATES II Its:
By: /S/ XXXXXXX XXXXXX XXXXXXXX STREET PARTNERS 1998
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Name: Xxxxxxx Xxxxxx DIF, L.L.C.
Its: Managing Director
By:_______________________________
Name:
Its:
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BEAR XXXXXXX STOCKHOLDERS:
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ICST ACQUISITION CORP.
By: /S/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Its: Vice President
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Schedule I
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Xxxx Capital Fund VI, L.P.
BCIP Trust Associates II
BCIP Trust Associates II-B
BCIP Associates II
BCIP Associates II-B
BCIP Associates II-C
PEP Investments PTY Ltd.
Xxxxxxxx Street Partners II
Xxxxxxxx Street Partners 1998 DIF, L.L.C.
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Schedule II
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ICST Acquisition Corp.
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Schedule V
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Intel Corporation
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