EXHIBIT 2.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of April 16, 2002, between Xicor, Inc., a California corporation
("Parent"), and Xxxxx Xxxxxxxxxxx (the "Holder's Agent"), as agent for the
members listed on Schedule A hereto (the "Members").
RECITALS
A. Parent, Analog Integration Partners LLC, a California limited liability
company (the "Company"), Valley Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Parent ("Sub"), the Holder's Agent and certain other
parties have entered into an Agreement and Plan of Merger, dated as of April 16,
2002 (the "Merger Agreement"), which provides for the merger of Sub with and
into the Company, with the Company as the surviving company and a wholly-owned
subsidiary of Parent (the "Merger"). Pursuant to the Merger, all outstanding
membership interests of the Company will be exchanged for a combination of cash
and Parent Common Stock (as such term is defined in the Merger Agreement) upon
the terms and subject to the conditions described in the Merger Agreement.
B. The Members desire to have liquidity with respect to the shares of
Parent Common Stock they receive in the Merger.
C. Parent desires to grant each of the Members registration rights as
provided herein.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements herein contained, the Company and the Holder's Agent, on behalf
of the Members, agree as follows:
1. Definitions of Certain Terms. As used herein, the following terms shall
have the following meanings. Capitalized terms used but not otherwise defined in
this Agreement shall have the meanings given to them in the Merger Agreement.
(a) "Closing Date" means the Closing Date as defined in Article I of
the Merger Agreement.
(b) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC issued thereunder, as they may
be in effect from time to time.
(c) "Form S-3" means such form under the Securities Act as in effect
on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which similarly permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the commission.
(d) "Holder" means any Member holding Registrable Shares and any
other person or entity holding Registrable Shares to whom the registration
rights granted in this Agreement have been transferred pursuant to Section 8
hereof.
(e) "Registrable Shares" means the shares of Parent Common Stock
issued to the Members pursuant to the Merger (including shares held in the
escrow account), and any other securities issued by Parent as a dividend or
other distribution with respect to, or in exchange for or in replacement of,
such shares; provided, however, Registrable Shares shall not include shares of
Parent Common Stock that have been registered under the Securities Act and
disposed of pursuant to the registration statement used to effect such
registration or that can be sold without registration in accordance with Rule
144 of the Securities Act.
(f) "SEC" means the United States Securities and Exchange
Commission, or any governmental agency succeeding to its functions.
(g) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC issued thereunder, as they may be in
effect from time to time.
2. Shelf Registration. Parent agrees that within forty-five (45) days of
the Closing Date, Parent shall cause to be filed a registration statement (a
"Shelf Registration") on Form S-3 under the Securities Act for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 thereunder or any
similar rule that may be adopted by the SEC and permitting sales in ordinary
course brokerage or dealer transactions not involving any underwritten public
offering, covering all of the Registrable Shares. Parent shall use commercially
reasonable efforts thereafter (a) to cause the Shelf Registration to be declared
effective by the SEC as promptly as practicable and (b) subject to Section 3 and
Section 4 hereof, to keep the Shelf Registration continuously effective until
the earlier to occur of (i) subject to any extension of time pursuant to Section
4(b) of this Agreement, the first anniversary of the Closing Date (the "Time
Period"), and (ii) the first date on which no Registrable Shares originally
covered by the Shelf Registration shall constitute Registrable Shares (such
period during which the Shelf Registration is effective is referred to herein as
the "Registration Period").
3. Registration Procedures. After Parent commences the registration of the
Registrable Shares pursuant to the Shelf Registration, Parent shall take all
reasonable actions to permit registration and sale of the Registrable Shares
pursuant to the Shelf Registration, including the following:
(a) furnish to the Holders such number of copies of the Shelf
Registration, each amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in the Shelf Registration (including
any preliminary prospectus) and such other documents as the Holders may
reasonably request in order to facilitate the disposition of the Registrable
Shares owned by the Holders;
(b) use commercially reasonable efforts to register or qualify such
Registrable Shares under such other securities or "blue sky" laws of such
jurisdictions as the Holder's Agent reasonably requests in writing and to do any
and all other acts and things that may be reasonably necessary or advisable to
register or qualify for sale in such jurisdictions the Registrable Shares owned
by the Holders; provided, however, that Parent shall not be required (i) to
qualify to do business in any jurisdiction where it is not then so qualified or
(ii) to consent to general service of process in any jurisdiction where it is
not then so subject to service of process; and
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(c) use commercially reasonable efforts as promptly as practicable
to cause all Registrable Shares covered by the Shelf Registration to be listed
on the Nasdaq Nation Market or other securities exchange or market, if any, on
which similar securities issued by Parent are then listed.
4. Stop Order; Postponement of Registration; Xxxxxxx Xxxxxxx.
(a) Parent will notify the Holders promptly of: (i) any request by
the SEC or any other federal or state governmental authority during the period
of effectiveness of the Shelf Registration for amendments or supplements to the
Shelf Registration or any prospectus used in connection with the Shelf
Registration (the "Prospectus"); (ii) the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of the Shelf Registration or the initiation of any proceedings for
that purpose; (iii) the receipt by Parent of any notification with respect to
the suspension of the qualification of the Registrable Shares for sale in any
jurisdiction; (iv) the happening of any event which makes any statement made in
the Shelf Registration or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect,
or which requires the making of any changes in the Shelf Registration or
Prospectus so that, in the case of the Shelf Registration, it will not contain
any untrue statement of material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of material fact or omit to state any material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and (v) Parent's reasonable determination that a
post-effective amendment to the Shelf Registration would be appropriate.
Immediately upon receipt of any such notice, the Holders shall cease to offer
and sell any Registrable Shares pursuant to the Shelf Registration. Parent shall
use all reasonable efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if any such stop order is issued or
any such qualification is suspended, to obtain as soon as possible the
withdrawal or revocation thereof, and will notify the Holders at the earliest
practicable date of the date on which the Holders may offer and sell Registrable
Shares pursuant to the Shelf Registration.
(b) Parent will notify the Holders promptly of the occurrence of any
event or the existence of any state of facts that, in the reasonable judgment of
Parent, should be or could be required to be set forth in the Prospectus used in
connection with the Shelf Registration (the "Prospectus"); provided, however,
that Parent shall not be required to disclose such event or facts, or the nature
thereof, to the Holders. Immediately upon receipt of such notice, the Holders
shall cease to offer or sell any Registrable Shares pursuant to such Prospectus,
cease to deliver or use such Prospectus and, if so requested by Parent, return
to Parent, at its expense, all copies (other than permanent file copies) of such
Prospectus. Promptly after Parent determines that the information may be
included in an amendment or supplement to the Prospectus, Parent will use
commercially reasonable efforts to amend or supplement such Prospectus as
promptly as practicable in order to set forth or reflect such event or state of
facts. In the event that Parent determines in good faith that the disclosure of
such information would be detrimental to Parent or its shareholders, Parent
shall be permitted to delay the filing of such an amendment or supplement to the
Prospectus for a period of time to extend no longer than sixty (60) days. Parent
shall not exercise this delay right more than four times in any twelve-month
period. Parent will furnish copies of such amendment or supplement
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to the Prospectus to the Holders. In the event Holders are prevented from
selling Registrable Shares through the Shelf Registration as a result of this
Section 4(b), then the Time Period shall be extended by the number of days that
such Holders are prevented from making such sales as a result of this Section
4(b).
(c) It is intended that the Holders shall be subject to Parent's
xxxxxxx xxxxxxx policies, and that the Holders shall cease to offer or sell any
Registrable Shares pursuant to such Prospectus and cease to deliver or use such
Prospectus during any black-out period specified by Parent's xxxxxxx xxxxxxx
policy.
5. Information Concerning the Holders.
(a) The obligations of Parent to take the actions contemplated by
Section 2 and Section 3 hereof with respect to an offering of Registrable Shares
shall be subject to the condition that each Holder shall (i) conform to all
applicable requirements of the Securities Act and the Exchange Act with respect
to the offering and sale of securities and (ii) advise each underwriter, broker
or dealer through which any of such Registrable Shares are offered that such
Registrable Shares are part of a distribution that is subject to the prospectus
delivery requirements of the Securities Act. Each Holder shall furnish to Parent
in writing such information and furnish such documents as may be reasonably
required by Parent in the preparation of (A) the Prospectus (or any amendment or
supplement thereto) with respect to any offering of Registrable Shares and (B)
any qualification of such Registrable Shares under state securities or "blue
sky" laws pursuant to Section 3(b) hereof, and shall promptly notify Parent of
the occurrence, from the date on which such information or documents are
furnished to the date of the closing for the sale of such Registrable Shares, of
any event relating to such Holder that is required under the Securities Act to
be set forth in the Prospectus (or any amendment or supplement thereto).
(b) At the end of the Registration Period, the Holders shall
discontinue sales of Registrable Shares pursuant to the Shelf Registration after
Parent has given notice to the Holders of its intention to remove from
registration the securities covered by the Registration Statement which remain
unsold, and the Holders shall notify Parent promptly upon receipt of such notice
from Parent of the number of shares of the Holders that are registered but
remain unsold.
6. Expenses of Registration. Parent shall pay all reasonable expenses
incident to its performance of or compliance with this Agreement and
registration of Registrable Shares in connection herewith, including (a) all
SEC, stock exchange or market and National Association of Securities Dealers,
Inc. registration and filing fees, (b) all fees and expenses incurred in
complying with securities or "blue sky" laws, (c) all printing, messenger and
delivery expenses, (d) all fees and disbursements of Parent's independent public
accountants and counsel, and (e) the reasonable fees and expenses of one counsel
to the Holders, not to exceed a total of $5,000 (all of such expenses herein
referred to as "Registration Expenses"). The Registration Expenses shall not
include any sales or underwriting discounts, commissions or fees attributable to
the sale of the Registrable Shares, which shall be borne by the Holders.
7. Indemnification and Contribution.
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(a) Parent agrees to indemnify, to the extent permitted by law and
subject to the terms of this Agreement, each Holder and each person, if any, who
controls such Holder (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses (including reasonable
attorneys' fees) arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in the Shelf Registration (or any
amendment thereto) or the Prospectus (or any amendment or 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 made therein in the light of
the circumstances under which they were made not misleading; provided, however,
that Parent shall not be liable to any Holder or each person, if any, who
controls such Holder (within the meaning of the Securities Act) (i) to the
extent that any such loss, claim, damage, liability or expense arises out of, or
is based upon any untrue or alleged untrue statement, or any omission, if such
statement or omission shall have been made in reliance upon and in conformity
with information relating to such Holder or person furnished in writing to
Parent by such Holder or person expressly for use in the preparation of the
Shelf Registration (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) or (ii) if a copy of the Prospectus (or any
amendment thereto) relating to the Shelf Registration was not sent or given by
or on behalf of such Holder to a purchaser of the Holder's Registrable Shares,
if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Registrable Shares to such purchaser, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
(b) In connection with the Shelf Registration, each Holder will
indemnify, to the extent permitted by law and subject to the terms of this
Agreement, Parent, its directors, officers, employees and agents and each person
who controls Parent (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses (including reasonable
attorneys' fees) arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in the Shelf Registration (or any
amendment thereto) or the Prospectus (or any amendment or 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 made therein in the light of
the circumstances under which they were made not misleading, to the extent that
such untrue statement or omission was made in reliance upon and in conformity
with information furnished in writing to Parent by such Holder expressly for use
in the preparation of the Shelf Registration (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto); provided, that the
liability of each Holder hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares by such Holder under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the net proceeds
received by such Holder.
(c) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge 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 be unreasonably
withheld or delayed); and provided, further, that the delay or failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying
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Party of its obligations under this Section 7, except to the extent that the
Indemnifying Party shall have been materially adversely affected by such delay
or failure. The Indemnified Party may participate in such defense at the
Indemnified Party's expense; provided, however, that the Indemnifying Party
shall pay any such reasonable expense if the Indemnified Party shall have
reasonably concluded that there may be a conflict between the positions of the
Indemnifying Party and the Indemnified Party in conducting the defense of any
such claim or litigation resulting therefrom. No Indemnified Party shall consent
to entry of any judgment or settle any claim or litigation without the prior
written consent of the Indemnifying Party.
(d) If the indemnification provided for in this Section 7 from the
Indemnifying Party is unavailable to an Indemnified Party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein as a
result of a judicial determination that such indemnification may not be enforced
in such case notwithstanding this Agreement, the Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expense, as well as any other relevant equitable considerations. The relative
fault of such Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation and no Holder will be required to contribute any
amount in excess of the public offering price (less underwriting discounts and
selling commissions) of all such Registrable Stock offered by it pursuant to
such Registration Statement.
8. Transfer of Registration Rights. The registration rights of any Holder
(and of any transferee of any Holder or its transferees) under this Agreement
with respect to any Registrable Shares may be transferred to any transferee who
(i) acquires at least 50,000 (or, if less, all of the Registrable Shares of a
Holder) of such Registrable Shares, (ii) is a partner, member or stockholder of
a Holder that is a partnership, limited liability company or corporation,
respectively, or (iii) is a family member of a Holder or a trust or family
limited partnership controlled by a Holder; provided that Parent is given
written notice by the Holder at the time of such transfer stating the name and
address of the transferee and identifying the Registrable Shares with respect to
which the rights under this Agreement are being assigned and such transferee
executes and delivers such agreements as Parent may reasonably require in order
to confirm that such transferee agrees to be bound by this Agreement.
9. Amendment of Registration Rights. This Agreement may not be amended,
modified or supplemented by the parties hereto in any manner, except by a
written instrument that is signed by Parent and the Holder's Agent.
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10. Termination. The registration rights set forth in this Agreement shall
terminate as to any Holder at the earlier of such time as (i) subject to any
extension of time pursuant to Section 4(b) of this Agreement, the first
anniversary of the Closing Date, or (ii) the first date on which no Registrable
Shares originally covered by the Shelf Registration shall constitute Registrable
Shares.
11. Grant of Additional Registration Rights. The Holders acknowledge that
Parent may acquire other companies and in the course of such acquisitions may
grant the equity owners thereof registration rights with respect to their shares
of Parent on terms that would be negotiated at such time and may be materially
different than the terms of this Agreement.
12. No Waiver. The terms and conditions of this Agreement may be waived
only by a written instrument (a) signed by the Holder's Agent in the case where
a Holder or the Holder's Agent is waiving compliance and (b) signed by Parent in
the case where Parent is waiving compliance. The failure of any party hereto to
enforce at any time any of the provisions of this Agreement shall in no way be
construed to be a waiver of any such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of such party
thereafter to enforce each and every such provision. No waiver of any breach of
or non-compliance with this Agreement shall be held to be a waiver of any other
or subsequent breach or non-compliance. The rights and remedies herein provided
are cumulative and are not exclusive of any rights or remedies that any party
may otherwise have at law or in equity.
13. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California, regardless of
the other laws that might govern under applicable principles of conflicts of
laws thereof.
14. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered by hand, sent by facsimile
transmission with confirmation of receipt, sent via a reputable overnight
courier service with confirmation of receipt requested, or mailed by registered
or certified mail (postage prepaid and return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice), and shall be deemed given on the date on which
delivered by hand or otherwise on the date of receipt as confirmed:
To Parent:
Xicor, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Page Xxxxxxxxx, Esq.
Xxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
To the Holder's Agent:
Xxxxx Xxxxxxxxxxx
00000 Xxxxxxx Xxx
Xxx Xxxxx Xxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No: (000) 0000-0000
with a copy to:
Xxxxxxxx, Xxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxx
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
To a Holder:
At their respective addresses appearing on Section 2.3 of the
Disclosure Schedule.
15. Construction of Agreement. A reference to a Section or Schedule shall
mean a Section in or Schedule to this Agreement unless otherwise expressly
stated. The titles and headings herein are for reference purposes only and shall
not in any manner limit the construction of this Agreement which shall be
considered as a whole. The words "include," "includes" and "including" when used
herein shall be deemed in each case to be followed by the words "without
limitation."
16. Entire Agreement, Assignability, etc. This Agreement and the Merger
Agreement and the documents and other agreements among the parties hereto and
thereto as contemplated by or referred to herein or therein constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement is not intended to
confer upon any person other than the parties hereto and the Members any rights
or remedies hereunder, except as otherwise expressly provided herein and shall
not be assignable by operation of law or otherwise, except as provided in
Section 8 hereof.
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17. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, each of which shall remain in full force and effect.
18. Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same Agreement.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed as an agreement under seal as of the date first written
above.
XICOR, INC.
By: /s/ Xxxxx XxXxxxx
--------------------------------------------
Name: Xxxxx XxXxxxx
Title: President and Chief Executive Officer
HOLDER'S AGENT
By: /s/ Xxxxx Xxxxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
SCHEDULE A
MEMBERS
1. Xxxx X. Xxxxxx
2. Xxxx Xxxxxx
3. Xxxxx Xxxxxxxx
4. Xxxxxxxxxxx Ventures Limited LP
5. Xxxxxx Ventures Limited LLC
