EXHIBIT 10.8
NOGATECH, INC.
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES A PREFERRED STOCK PURCHASE AGREEMENT is entered into as of
February 28, 1996, by and among NOGATECH, INC., a California corporation
(hereinafter the "Corporation"), and Xx. Xxxx Xxxxxx or any nominee company
including one in formation (hereinafter referred to as the "Investor").
RECITALS
A. The Corporation desires to raise money by the sale of Series A
Preferred Stock to the Investor.
B. The Investor desires to purchase shares of Series A Preferred
Stock from the Corporation, and the Corporation desires to sell shares of
Series A Preferred Stock to the Investor, on the terms and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties contained in this Agreement, the parties agree
as follows:
1. AUTHORIZATION AND SALE OF PREFERRED STOCK.
a. AUTHORIZATION. The Corporation will authorize on, or
before, the Closing the sale and issuance of up to seventy-four thousand one
hundred seventy-four (74,074) shares of its Series A Convertible Preferred
Stock (hereinafter the "Series A Preferred Stock") to the Investor, having
the rights, privileges and preferences as set forth in the Amended and
Restated Articles of Incorporation (hereinafter the "Articles") in the form
attached to this Agreement as Exhibit A.
b. SALE OF SERIES A PREFERRED STOCK. Subject to the terms
and conditions hereof, the Corporation will issue and sell to the Investor,
seventy-four thousand seventy-four (74,074) shares of Series A Preferred
Stock (the "Shares") at a per share purchase price of 3,375/10,000 U.S.
Dollars ($0.3375), for an aggregate purchase price of Twenty-five Thousand
U.S. Dollars (U.S. $25,000) (the "Purchase Price").
2. ISSUANCE AND PAYMENT.
a. CLOSING. Subject to the terms and conditions hereof,
the closing of the purchase and sale of the Shares (hereinafter the
"Closing") shall be held (via facsimile transmittal and wire transfers or
cashier's check) at the Corporation's counsel's offices located at 0000
Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx, on, or about, December 28, 1995, at 5:00
p.m., local time, or at such other time and place upon which the Corporation
and the Investor shall agree (the date of the Closing is hereinafter referred
to as the "Closing Date"). If Investor chooses to wire the Purchase Price,
the wire transfer of the Purchase Price (plus an additional Fifteen Dollars
($15.00) for international wire transfers) shall be sent to Pezzola &
Xxxxxx'x Attorney Trust Account at: SUMMIT BANK, 0000 Xxxxxxxx, Xxxxxxx, XX
00000; for deposit into ACCOUNT No. 01-00000000 (Summit Bank's telephone
number is (000) 000-0000 and its ABA Number is 000000000). The wire
instructions shall include a message identifying the name of the Investor as
the originator of the wire. If Investor chooses to send a cashier's check,
it shall be made payable to "Pezzola & Xxxxxx Trust Account for the benefit
of Nogatech, Inc." and shall identify Investor as the originator.
b. ISSUANCE OF SHARES. At the Closing, or as soon as
practical thereafter, the Corporation will deliver to the Investor a
certificate, registered in its name, representing the Shares to be purchased
by the Investor, against payment of the purchase price therefor, by cashier's
check payable to the Corporation, or by wire transfer through the
Corporation's counsel, Pezzola & Xxxxxx, or as otherwise instructed by the
Corporation.
3. CORPORATION'S WARRANTIES. The Corporation hereby represents
and warrants effective as of the Closing as follows:
a. CORPORATE ORGANIZATION AND STANDING. The Corporation is
a corporation duly organized, existing and in good standing under the laws of
the State of California. The Corporation has the requisite corporate power
to carry on its business as presently conducted, and as proposed or
contemplated to be conducted in the future, and to enter into and carry out
the provisions of this Agreement and the transactions contemplated hereby.
The Corporation is not presently qualified to do business as a foreign
corporation in any jurisdiction where the failure to be so qualified would
materially and adversely affect the Corporation's business.
b. SUBSIDIARIES. The Corporation has no subsidiaries or
affiliated companies and does not otherwise own or control, directly or
indirectly, any equity interest in any corporation, association or business
entity, except for its Israeli subsidiary, Nogatech, Ltd.
c. CORPORATE CAPITALIZATION.
i. Immediately prior to, or simultaneously with, the
Closing, the Corporation's authorized capital stock shall include only two
authorized classes of capital stock consisting of (i) sixteen million
(16,000,000) shares of Preferred Stock,
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fifteen million (15,000,000) shares of which shall be designated as Series A
Convertible Preferred Stock, and (ii) forty million (40,000,000) shares of a
sole class of Common Stock.
ii. Except as contemplated or set forth in this
Agreement, there are no outstanding preemptive or other rights, options,
warrants, conversion rights or agreements for the purchase or acquisition
from the Corporation of any shares of its capital stock.
iii. As of the date hereof, the Corporation does not
have any declared and unpaid dividends (whether payable in cash, securities
or other consideration).
d. AUTHORIZATION. All corporate action on the part of the
Corporation, its directors and shareholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Corporation, the
authorization, sale, issuance and delivery of the Series A Preferred Stock
(and the Common Stock issuable upon conversion of the Series A Preferred
Stock) and the performance of all of the Corporation's obligations hereunder
has been taken or will be taken prior to the Closing. This Agreement, when
executed and delivered by the Corporation, shall constitute a valid and
binding obligation of the Corporation, enforceable in accordance with its
terms, except as may be limited by principles of public policy, and subject
to laws of general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific performance, injunctive
relief or other equitable remedies. The Shares, when issued in compliance
with the provisions of this Agreement, will be validly issued, will be fully
paid and nonassessable, and will have the rights, preferences and privileges
described in the Articles; the Common Stock issuable upon conversion of the
Shares has been duly and validly reserved and, when issued in compliance with
the provisions of this Agreement and the Articles, will be validly issued,
fully paid and nonassessable; and the Shares and such Common Stock will be
free of any liens or encumbrances, assuming the Investor takes the Shares
with no notice thereof, other than any liens or encumbrances created by or
imposed upon the Shares hereunder; provided, however, that the Shares (and
the Common Stock issuable upon conversion thereof) may be subject to
restrictions on transfer under state and/or federal securities laws.
e. FINANCIAL STATEMENTS. The Corporation has made
available to the Investor the consolidated audited Balance Sheet and
Statement of Operations of the Corporation, together with its subsidiaries,
for the period ended August 31, 1995 (collectively the "Financial
Statements"). The Financial Statements are complete and correct in all
material respects. To the Corporation's knowledge, the Financial Statements
accurately set out and describe the Corporation's financial condition and
operating results and that of its subsidiary as of the dates, and during the
periods, indicated therein. To the Corporation's
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knowledge, since August 31, 1995 there has not been any material change in
the assets, liabilities, financial condition or operations of the Corporation
or its subsidiary, from that reflected in the Financial Statements, except
changes in the ordinary course of business which have not been, either in any
case or in the aggregate, materially adverse.
f. MATERIAL LIABILITIES. Neither the Corporation nor its
subsidiary has any material liabilities or obligations, absolute or
contingent (individually or in the aggregate), except (i) the liabilities and
obligations set forth in the Financial Statements; (ii) liabilities and
obligations which have been incurred subsequent to August 31, 1995 in the
ordinary course of business which have not been, either in any case or in the
aggregate, materially adverse; and (iii) liabilities and obligations under a
lease for its principal offices and leases for equipment and liabilities and
obligations under sales, procurement and other contracts and arrangements
entered into in the normal course of business.
g. LITIGATION. There are no actions, proceedings or, to
the Corporation's best knowledge, investigations pending, or any threat
thereof, against or affecting the Corporation which, either individually or
in the aggregate, might result in any material adverse change in the
business, prospects, condition, affairs or operations of the Corporation or
in any of its properties or assets, or in any material impairment of the
right or ability of the Corporation to carry on its business as proposed to
be conducted, and none which questions the validity of this Agreement or any
action taken or to be taken in connection herewith.
h. GOVERNMENTAL CONSENTS. To the Corporation's knowledge,
no consent, approval, order, authorization or registration, qualifications,
designation, license, declarations or filings with any Federal or state
governmental authority is required on the part of the Corporation in
connection with the consummation of the transactions contemplated herein,
except for applicable security law filings and the IITSSA filing set forth in
Section 4(h) below.
i. REGISTRATION RIGHTS. The Corporation has granted
registration rights to the current holders of the shares of Series A
Convertible Preferred Stock, as successors in interest to the prior holders
of such shares, pursuant to the terms and conditions set forth in a Stock
Purchase Agreement dated as of January 1, 1993 (the "1993 Agreement"), among
the Corporation, DSP Group, Inc. and Scitex Corporation, Ltd. Except as
provided hereunder and in the 1993 Agreement, the Corporation is not a party
to any "registration rights agreement" or any similar
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agreement pursuant to which any person would have the right to cause, under
any circumstances, the registration of securities under the Securities Act of
1933, as amended (the "Securities Act").
j. DISCLOSURE. No representation or warranty by the
Corporation in this Agreement or in any statement or certificate furnished or
to be furnished to the Investor pursuant hereto or in connection with the
transactions contemplated hereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
k. SURVIVAL OF REPRESENTATIONS. All representations made
by the Corporation in or under this Agreement shall be true and accurate as
of the Closing.
4. INVESTOR REPRESENTATIONS AND WARRANTIES. The Investor
represents and warrants to the Corporation that:
a. INVESTMENT. The Investor is acquiring the Shares and
any shares of Common Stock issuable pursuant to conversion of the Shares
(hereinafter collectively the "Securities") for investment for their own
account, and not with a present intention to resell in connection with, any
distribution thereof, and they have no present intention of selling or
distributing any such Securities. It understands that the Securities have
not been registered under the Securities Act by reason of a specific
exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment as
expressed herein.
b. RULE 144. The Investor acknowledges that because the
Securities have not been registered under the Securities Act, the Securities
must be held indefinitely unless subsequently registered under the Securities
Act or an exemption from such registration is available. The Investor is
aware of the provisions of Rule 144 promulgated under the Securities Act
which permits limited resale of shares purchased in a private placement under
certain circumstances.
c. NO PUBLIC MARKET. The Investor understands that no
public market now exists for any securities issued by the Corporation and
that it is uncertain whether a public market will ever exist for any such
securities.
d. ACCESS TO DATA. The Investor has had an opportunity to
discuss the Corporation's business, management and financial affairs with its
management and to obtain any additional information given to it necessary or
appropriate for deciding whether or not to purchase the Securities. The
Investor acknowledges that no representations or warranties have been made
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by the Corporation or any agent thereof except as set forth in this Agreement.
e. INVESTMENT EXPERIENCE. The Investor is an "accredited
investor" as that term is defined in Regulation D promulgated by the
Securities and Exchange Commission.
f. PREVIOUS INVESTMENTS. The Investor is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment contemplated
herein.
g. RISKS. The Investor understands that an investment in
the Corporation involves a high degree of risk and is suitable only for an
investor who can afford a loss of their entire investment and who have no
need for liquidity from their investment.
h. IITSSA COMPLIANCE. The Investor shall provide to the
Corporation all such information as is necessary to complete the forms
required to be filed by the Corporation with the U.S. Department of Commerce,
Bureau of Economic Analysis, under the International Investment and Trade in
Services Survey Act, as amended, and regulations issued thereunder.
i. GOVERNMENTAL CONSENTS. To the Investor's knowledge, no
consent, approval, order, authorization or registration, qualifications,
designation, license, declarations or filings with any Israeli governmental
authority is required on the part of the Investor in connection with the
consummation of the transactions contemplated herein.
j. RESTRICTIONS ON TRANSFER RE REGULATION S.
PLEASE INITIAL WHERE INDICATED BELOW
______INITIAL i. NOT A "U.S. PERSON". The Investor hereby certifies that
(i) it is not a "U.S. Person" as defined under Rule 902, Section (o) of
Regulation S promulgated under the Securities Act, incorporated herein by
reference and is not acquiring the Securities for the account or benefit of
any U.S. Person, and (ii) it is acquiring the Securities in an "offshore
transaction" as defined under Section (i) of such Rule 902, incorporated
herein by reference.
ii. TRANSFER RESTRICTIONS. The Corporation
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shall not register any transfer of the Securities not made in accordance with
the provisions of Regulation S. In addition to any other restrictions on
transfer set forth in this Agreement, the Investor agrees to transfer the
Securities only (i) in accordance with the provisions of Regulation S,
pursuant to registration under the Securities Act, or pursuant to an
available exemption from registration, and (ii) in accordance with any
applicable state securities laws. Unless so registered or exempt therefrom,
such transfer restrictions shall include but not be limited to and the
Investor warrants and represents the following:
(i) Investor shall not sell the Securities to any
U.S. Person, whether directly or indirectly, or for the account or benefit of
any such U.S. Person for a period of at least one year after the purchase of
the Securities;
(ii) Any other offer or sale of the Securities shall
be made only if any subsequent purchaser certifies in writing that it is not
a U.S. Person and is not acquiring the Securities for the account or benefit
of any U.S. Person or is a U.S. Person who purchased the Securities in a
transaction that did not require registration under the Securities Act; and
(iii) Any transferee of the Securities shall agree in
writing to resell the Securities only in accordance with the provisions of
Regulation S, pursuant to registration under the Securities Act, or pursuant
to an available exemption from registration.
5. RESTRICTIVE LEGENDS. Each certificate or other written
documentation representing any of the Securities which the Investor is
purchasing or may purchase hereunder and any other securities issued upon any
stock split, stock dividend, recapitalization, merger, consolidation or
similar event (unless no longer required in the opinion of the counsel for
the Corporation) shall be stamped or otherwise imprinted with legends
substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
QUALIFIED UNDER ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, OR
THE HOLDER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THE
SECURITIES SATISFACTORY TO THE CORPORATION, STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND
THE QUALIFICATION REQUIREMENTS UNDER STATE
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LAW."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER PURSUANT TO REGULATION S PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED EXCEPT PURSUANT TO THE PROVISIONS UNDER
REGULATION S OR PURSUANT TO REGISTRATION UNDER SUCH ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION."
The Corporation shall be entitled to enter stop transfer notices on
its stock books with respect to the Securities.
6. AFFIRMATIVE COVENANTS OF THE CORPORATION. So long as the
Investor owns of record and beneficially at least fifty percent (50%) of the
Series A Preferred Stock shares purchased by it hereunder, until the
Corporation effects a registered underwritten public offering of its common
stock, the Corporation shall deliver to such Investor internally prepared
quarterly and annual financial statements.
7. REGISTRATION RIGHTS. At any time after three (3) years from
the Closing Date, or eighteen (18) months after the Corporation's initial
public offering, whichever is earlier, Persons holding at least twenty
percent (20%) of the Common Stock issuable upon conversion of all the Series
A Preferred Stock may request registration by the Corporation of their
shares, if the anticipated aggregate gross cash proceeds would exceed Ten
Million Dollars ($10,000,000). In such event, the Corporation will use its
best efforts to cause such shares to be registered. The Corporation shall
only be obligated to effect two (2) registrations under these demand
registration rights provisions. Persons holding Series A Preferred Stock or
Common Stock issuable upon conversion of the Series A Preferred Stock, shall
be entitled to S-3 registration rights no more often than once per every
eighteen (18) month period on form S-3, if available for use by the
Corporation, for an aggregate offering price of at least One Million Dollars
($1,000,000) per offering. Persons holding Series A Preferred Stock or
Common Stock issuable upon conversion of the Series A Preferred Stock shall
be entitled to unlimited "piggyback" registrations on a registration of the
Corporation's equity, subject to a prorata cutback with all those holding
"piggyback" registration rights in the underwriters' discretion and
reasonable lock-ups as requested by underwriters. The registration expenses
(exclusive of underwriting discounts and commissions) shall be borne by the
Corporation for all permitted registrations.
8. NEGATIVE COVENANTS. The Corporation shall not, without the
vote or written consent of the holders of a majority of the shares of Series
A Stock, voting as a separate class:
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i. create any new class or series of shares having
preference over the Series A Stock;
ii. merge, consolidate, or reorganize, where such
merger, consolidation, or reorganization results in the change of a majority
of the members of the Board of Directors;
iii. sell all or substantially all of its assets or
sell more than 50% of the Corporation's Common Stock in one transaction or
series of related transactions.
iv. enter into a transaction with a related party on
terms and conditions which are not done in the ordinary course of business or
which are not done on terms and conditions which represent a fair value to
the Corporation.
9. MISCELLANEOUS.
a. SURVIVAL. The covenants and agreements made herein
shall survive the Closing of the transactions contemplated hereby and shall
end when fewer than fifty percent (50%) of the Shares are outstanding or upon
the consummation of an initial public offering of any of the Corporations'
shares.
b. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
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.
c. ENTIRE AGREEMENT. This Agreement and the exhibits
attached hereto and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between and among the parties
with regard to the subjects hereof and thereof.
d. NOTICE. Any notice, payment, report or other
communication required or permitted to be given by one party to any other
party by this Agreement shall be in writing and either (i) served personally
on the other party or parties; (ii) sent by express, registered or certified
first class mail, postage prepaid, addressed to the other party or parties at
its or their address or addresses as indicated next to their signatures
below, or to such other address as any addressee shall have theretofore
furnished to the other parties by like notice; (iii) delivered by commercial
courier to the other party or parties; or (iv) sent by facsimile. Such
notice shall be deemed received on the second day after transmittal if sent
by one day courier together with a transmission of such notice by facsimile
if the recipient has the capability to receive a facsimile at its address and
if sent by other methods shall be deemed received upon receipt.
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e. FINDER'S AND BROKER'S FEES. The Corporation and
Investor each represents and warrants that it has retained no finder or
broker in connection with the transactions contemplated by this Agreement.
Each party hereby agrees to indemnify and to hold the other harmless from any
liability for any finder's or broker's fee to any broker or other person or
firm (and the costs and expenses of defending against such liability or
asserted liability) for which such indemnifying person, or any of its
employees or representatives, are responsible.
f. TITLES AND SUBTITLES. The titles of the Sections and
subsections of this Agreement are for the convenience of reference only and
are not to be considered in construing this Agreement.
g. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
h. APPLICABLE 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.
i. USE OF PROCEEDS. The Corporation may use the proceeds
of this financing for (i) working capital purposes; or (ii) capital
investment.
j. ARBITRATION. Any dispute between the parties arising
out of this Agreement shall be submitted to final and binding arbitration in
the City of Cupertino, County of Santa Xxxxx, State of California, under the
Commercial Arbitration Rules of the American Arbitration Association then in
effect, upon written notification and demand of either party therefor. In
the event either party demands such arbitration, the American Arbitration
Association shall be requested to submit a list of prospective arbitrators
consisting of persons experienced in matters involving securities offerings.
The provisions of California Code of Civil Procedure Section 1283.05 and the
laws of the State of California are incorporated herein and shall be
applicable to the arbitration. In making the award, the arbitrator shall
award recovery of costs and expenses of the arbitration and reasonable
attorneys' fees to the prevailing party. Any award may be entered as a
judgment in any court of competent jurisdiction.
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Should judicial proceedings be commenced to enforce or carry out this
provision or any arbitration award, the prevailing party in such proceedings
shall be entitled to reasonable attorneys' fees and costs in addition to
other relief. Either party shall have the right, prior to receiving an
arbitration award, to obtain preliminary relief from a court of competent
jurisdiction to avoid injury or prejudice to that party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
CORPORATION:
NOGATECH, INC.
a California corporation
00000 Xxxxxxx Xxxxx Xxxxxxxxx, 0xx Xx.
Xxxxxxxxx, Xxxxxxxxxx 00000
By: /s/ N. Hod
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(Signature)
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(Print Name and Title)
Investor: Number of Shares:
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XX XXXX XXXXXX 74,074
/s/ Xxxxxx
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(Signature)
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(Print and Name)
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(Print Address)
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