Exhibit 10.9
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AMENDED AND RESTATED PIGGYBACK
REGISTRATION AND INVESTOR RIGHTS AGREEMENT
by and among
Oasis Semiconductor, Inc.
and
THE SECURITYHOLDERS NAMED HEREIN
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Dated as of December 22, 1997
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TABLE OF CONTENTS
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1. DEFINITIONS..............................................................................................1
2. PIGGYBACK REGISTRATION...................................................................................3
3. EXPENSES.................................................................................................4
4. REGISTRATION PROCEDURES..................................................................................4
5. UNDERWRITTEN OFFERINGS...................................................................................7
(a) PIGGYBACK UNDERWRITTEN OFFERINGS; PRIORITY..........................................................7
(b) HOLDERS OF REGISTRABLE SECURITIES TO BE PARTIES TO UNDERWRITING AGREEMENT...........................8
(c) SELECTION OF UNDERWRITERS FOR PIGGYBACK UNDERWRITTEN OFFERING.......................................8
(d) HOLDBACK AGREEMENTS.................................................................................8
6. PREPARATION; REASONABLE INVESTIGATION....................................................................9
(a) REGISTRATION STATEMENTS.............................................................................9
(b) CONFIDENTIALITY.....................................................................................9
(c) COOPERATION BY THE COMPANY..........................................................................9
7. INDEMNIFICATION..........................................................................................9
(a) INDEMNIFICATION BY THE COMPANY......................................................................9
(b) INDEMNIFICATION BY THE OFFERORS AND SELLERS........................................................10
(c) NOTICES OF LOSSES, ETC.............................................................................11
(d) CONTRIBUTION.......................................................................................11
(e) OTHER INDEMNIFICATION..............................................................................12
(f) INDEMNIFICATION PAYMENTS...........................................................................12
8. REGISTRATION RIGHTS TO OTHERS...........................................................................12
9. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES............................................................12
10. RULE 144 AND RULE 144A..................................................................................12
11. AMENDMENTS AND WAIVERS..................................................................................13
12. NOMINEES FOR BENEFICIAL OWNERS..........................................................................13
13. ASSIGNMENT..............................................................................................13
14. CALCULATION OF PERCENTAGE INTERESTS IN REGISTRABLE SECURITIES...........................................13
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15. BASIC FINANCIAL INFORMATION AND REPORTING...............................................................14
16. MISCELLANEOUS...........................................................................................14
(a) FURTHER ASSURANCES.................................................................................14
(b) HEADINGS...........................................................................................14
(c) REMEDIES...........................................................................................14
(d) ENTIRE AGREEMENT...................................................................................14
(e) NOTICES............................................................................................15
(f) GOVERNING LAW......................................................................................15
(g) SEVERABILITY.......................................................................................15
(h) COUNTERPARTS.......................................................................................15
17. PROVISIONS SUBJECT TO OTHER AGREEMENTS..................................................................15
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AMENDED AND RESTATED
PIGGYBACK REGISTRATION AND INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED
PIGGYBACK REGISTRATION AND INVESTOR RIGHTS
AGREEMENT, dated as of December 22, 1997 by and among Oasis Semiconductor, Inc.,
a Delaware corporation (the "COMPANY"), and the persons listed in Exhibit A
hereto who are holders of securities of the Company and who are signatories to
this Agreement (individually a "SECURITYHOLDER" and collectively the
"SECURITYHOLDERS"), amends and restates in its entirety that certain Piggyback
Registration Rights Agreement dated as of December 13, 1995 by and among the
Company and certain securityholders (the "Prior Agreement").
On or prior to December 13, 1995, the Company issued 72,666 shares of
Common Stock $.001 par value per share ("Common Stock") to certain
Securityholders. On or about June 3, 1997, the Company issued an additional
7,509 shares of Common Stock to certain Securityholders. On or about November 5,
1997 the Company authorized a 10 for 1 stock split with respect to all shares of
its capital stock, resulting in 801,175 shares of Common Stock outstanding. On
or about December 9 1997 the Company effected a conversion of 397,380 shares of
its outstanding Common Stock into the same number of Series A Preferred Stock,
$.001 par value per share ("Series A Preferred"). Concurrently with the
execution of this Agreement, the Company is issuing 84,302 shares of Series B
Preferred Stock, $.001 par value per share ("Series B Preferred") to JetFax,
Inc., a Delaware corporation ("JetFax"), and intends to issue an additional
103,758 shares of Series B Preferred to JetFax upon the achievement of certain
milestones (the Series A Preferred and the Series B Preferred shall sometimes be
referred to collectively as the "Shares"). To induce the Securityholders to
acquire securities of the Company, the Company hereby undertakes to register
Registrable Securities under the Securities Act as provided herein and to take
certain other actions with respect to the Securities. This Agreement sets forth
the terms and conditions of such undertaking.
In consideration of the premises and the mutual agreements set forth
herein, the parties hereto hereby agree that all consents or conditions required
to be obtained or satisfied under the Prior Agreement in connection with the
transactions contemplated in that certain Series B Preferred Stock Agreement of
even date herewith (the "Series B Agreement") are hereby given and that the
Prior Agreement is amended and restated to read in full as follows:
1. DEFINITIONS.
Unless otherwise defined herein, capitalized terms used herein and in the
recitals above shall have the following meanings:
"AFFILIATE" has the meaning given to such term in Rule 12b-2 under the
Exchange Act.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in Boston,
Massachusetts are authorized or required by
law to be closed.
"COMMON STOCK" means the shares of common stock, $.001 par value per
share, of the Company, as adjusted to reflect any merger, consolidation,
recapitalization,
reclassification, split-up, stock dividend, rights offering or reverse stock
split made, declared or effected with respect to the Common Stock.
"CONTROL" has the meaning given to such term in Rule 12b-2 under the
Exchange Act.
"COMMISSION" means the U.S. Securities and Exchange Commission or any
successor agency or authority.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, or any similar or successor statute.
"EXPENSES" means all expenses incident to the Company's performance of
or compliance with its obligations under this Agreement, including, without
limitation, all registration, filing and listing fees, all fees and expenses of
complying with state securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the fees,
disbursements and other charges of counsel for the Company and of its
independent public accountants, including the expenses incurred in connection
with "cold comfort" letters required by or incident to such performance and
compliance, any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities and the reasonable fees, disbursements and
other charges of one firm of counsel (per registration prepared) to the holders
of Registrable Securities making a request pursuant to Section 2 hereof
(selected by the holders holding a majority of the aggregate number of shares of
the Registrable Securities covered by such registration), but excluding
underwriting discounts and commissions and applicable transfer taxes, if any,
which discounts, commissions and transfer taxes shall be borne by the seller or
sellers of Registrable Securities in all cases; PROVIDED, THAT in the event the
Company shall, in accordance with Section 2 hereof, not register any securities
with respect to which it had given written notice of its intention to register
to holders of Registrable Securities, notwithstanding anything to the contrary
in the foregoing, all of the reasonable costs incurred by Requesting Holders in
connection with such registration shall be deemed to be Expenses.
"PERSON" means any individual, corporation, partnership, firm, joint
venture, association, joint stock company, trust, unincorporated organization,
governmental or regulatory body or subdivision thereof or other entity.
"PUBLIC OFFERING" means a public offering and sale of the Securities
pursuant to an effective registration statement under the Securities Act.
"REGISTRABLE SECURITIES" means any Securities issued or deemed to be
issued to a Securityholder. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (a) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been
Transferred in accordance with such registration statement, (b) they shall have
been sold as permitted by Rule 144 (or any successor provision) under the
Securities Act, or provided that at the tune such securities are proposed to be
sold, they may be sold under Rule 144 without any limitation on the amount of
such securities which may be sold or (c) they shall have ceased to be
outstanding.
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"REQUESTING HOLDERS" has the meaning set forth in Section 2 hereof.
"SECURITIES" means the aggregate number of shares of Common Stock and
shares of Common Stock issued or issuable upon conversion of the Shares, set
forth in Exhibit A, as amended from time to time, and owned by the
Securityholders, and includes any securities of the Company issued or issuable
with respect to such securities by way of a recapitalization, merger,
consolidation or other reorganization or otherwise, whether held by the
Securityholders or any of their permitted Transferees, heirs and successors.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder, or any similar or successor statute.
"SECURITYHOLDERS" means the securityholders of the Company listed on
the signature page hereto under the heading "SECURITYHOLDERS," together with
their Transferees, heirs and successors.
"TRANSFER" means any transfer, sale, assignment, pledge, hypothecation
or other disposition of any interest. "TRANSFEROR" and "TRANSFEREE" have
correlative meanings.
2. PIGGYBACK REGISTRATION.
If the Company at any time after the date hereof proposes to register any
of its securities under the Securities Act by registration on any forms other
than Form S-4 or Form S-8 (or any successor or similar forms), whether or not
pursuant to registration rights granted to other holders of its securities and
whether or not for sale for its own account, it shall, subject to the provisions
of applicable federal and state securities laws, give prompt written notice to
all of the Securityholders that are holders of the Registrable Securities of its
intention to do so and of such Securityholders' rights (if any) under this
Section, which notice, in any event, shall, subject to the provisions of
applicable federal and state securities laws, be given at least fifteen (15)
Business Days prior to the filing of the registration statement relating to such
proposed registration. Upon the written request of any Securityholder that is a
holder of Registrable Securities (a "REQUESTING HOLDER") made within ten (10)
Business Days after the receipt of any such notice (seven (7) Business Days if
the Company states in such written notice or gives telephonic notice to all
Securityholders, with written confirmation to follow promptly thereafter,
stating that (i) such registration will be on Form S-3 and (ii) such shorter
period of time is required because of a planned filing date), which request
shall specify the Registrable Securities intended to be disposed of by such
Requesting Holder and the intended method of disposition, the Company shall
effect the registration under the Securities Act of all Registrable Securities
which the Company has been so requested to register by the Requesting Holders
thereof; PROVIDED, THAT,
(A) prior to the effective date of the registration statement filed
in connection with such registration, immediately upon notification to the
Company from the managing underwriter of the price at which such Securities
are to be sold, the Company shall so advise each Requesting Holder of such
price, and if such price is below the price which any Requesting Holder
shall have indicated to be acceptable to such Requesting Holder, such
Requesting Holder shall then have the right to withdraw its request to have
its Registrable Securities included in such registration statement, and
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(B) if at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Requesting Holder and (i) in the case of a
determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration
(but not from any obligation of the Company to pay the Expenses in
connection therewith), without prejudice, however, to the rights of any
holder or holders of Registrable Securities to include Registrable
Securities in any future registration(s) pursuant to this Section, and (ii)
in the case of a determination to delay registering, shall be permitted to
delay registering any Registrable Securities, for the same period as the
delay in registering such other securities.
3. EXPENSES.
The Company shall pay all Expenses in connection with any registration
initiated pursuant to Section 2 hereof, whether or not such registration shall
become effective and whether or not all or any portion of the Registrable
Securities originally requested to be included in such registration are
ultimately included in such registration.
4. REGISTRATION PROCEDURES.
If and whenever the Company is required to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 2 hereof
(subject to clause (B) of Section 2 hereof), the Company shall, as expeditiously
as possible:
(a) prepare and file with the Commission promptly and in any event on
or before the date that is ninety (90) days after the end of the period
within which requests for registration may be given to the Company the
requisite registration statement to effect such registration and thereafter
use its best efforts to cause such registration statement to become
effective; PROVIDED, HOWEVER, that in the event the Company, in the
exercise of its reasonable business judgment, determines that the filing of
such registration statement with the Commission will have a material
adverse effect on its ability to consummate a material business
transaction, whether or not publicly disclosed. the date for filing such
registration statement may be extended for an additional thirty (30) days
and FURTHER PROVIDED, that the Company may discontinue any registration of
its securities that are not Registrable Securities (and, under the
circumstances specified in Section 2 hereof, its securities that are
Registrable Securities) at any time prior to the effective date of the
registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by
such registration statement until such time as all of such Registrable
Securities have been disposed of in accordance with the intended methods of
disposition by the seller or
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sellers thereof set forth in such registration statement; PROVIDED THAT
such period need not extend beyond nine (9) months after the effective date
of the registration statement;
(c) furnish to each seller of Registrable Securities covered by such
registration statement such number of copies of such drafts and final
conformed versions of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits),
such number of copies of such drafts and final versions of the prospectus
contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under
Rule 424 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, as such seller may reasonably
request;
(d) use its best efforts (A) to register or qualify all Registrable
Securities and other securities covered by such registration statement
under such other securities or blue sky laws of such states or other
jurisdictions of the United States of America as the sellers of Registrable
Securities covered by such registration statement shall reasonably request,
(B) to keep such registration or qualification in effect for so long as
such registration statement remains in effect and (C) to take any other
action that may be reasonably necessary or advisable to enable such sellers
to consummate the disposition in such jurisdictions of the securities to be
sold by such sellers, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation or subject itself to general taxation in any jurisdiction
wherein it would not but for the requirements of this subsection be
obligated to be so qualified or be so taxable or to consent to general
service of process in any such jurisdiction or where such registration or
qualification would require one or more stockholders of the Company to
escrow their shares or refrain from selling their shares for a period of
time;
(e) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such
other federal or state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and counsel to the
seller or sellers of Registrable Securities to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities;
(f) furnish to each seller of Registrable Securities, and each such
seller's underwriters, if any, a signed
(i) opinion of counsel for the Company, dated the effective date
of such registration statement (and, if such registration involves an
underwritten offering, dated the date of the closing under the
underwriting agreement), reasonably satisfactory in form and substance
to such seller, and
(ii) "comfort" letter, dated the effective date of such
registration statement (and, if such registration involves an
underwritten offering, dated the date of the closing under the
underwriting agreement) and signed by the independent public
accountants who have certified the Company's financial statements
included or incorporated by reference in such registration statement.
reasonably satisfactory in form and substance to such seller.
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covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' comfort letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' comfort letters delivered to
underwriters in underwritten Public Offerings of securities and, in the
case of the accountants' comfort letter, such other financial matters, and,
in the case of the legal opinion, such other legal matters, as the sellers
of the Registrable Securities covered by such registration statement, or
the underwriters, if any, may reasonably request;
(g) notify each seller of Registrable Securities and other
securities, covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon 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 any 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, at the request of any such
seller of Registrable Securities, promptly prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus, as supplemented or amended,
shall not include an untrue statement of a material fact or omit 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 under
which they were made;
(h) otherwise comply in all material respects with all applicable
rules and regulations of the Commission and any other governmental agency
or authority having jurisdiction over the offering, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, but not more
than eighteen (18) months, beginning with the first full calendar month
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 promulgated thereunder, and furnish to each seller of
Registrable Securities at least five (5) days prior to the filing thereof
or such shorter period as is reasonable under the circumstances, a copy of
any amendment or supplement to such registration statement or prospectus;
(i) upon a request of the holders of a majority of the aggregate
number of shares of the Registrable Securities requested to be included in
a registration pursuant to Section 2 hereof, use its best efforts to cause
all such Registrable Securities covered by such registration statement to
be listed on a national securities exchange or automated quotation system,
and on each additional national securities exchange or automated quotation
system on which similar securities issued by the Company are then listed,
if the listing of such Registrable Securities is then permitted under the
rules of such exchange or automated quotation system;
(j) enter into such agreements and take such other actions as any
holder or holders of Registrable Securities covered by such registration
statement shall reasonably
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request in order to expedite or facilitate the disposition of such
Registrable Securities; and
(k) for a period of at least twenty four (24) months following the
date such registration statement is declared effective by the Commission,
file with the Commission all periodic information, documents and reports
required pursuant to Section 13 of the Exchange Act in respect of a
security registered pursuant to Section 12 of the Exchange Act.
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing or as is required by applicable
laws and regulations.
Each holder of Registrable Securities agrees that as of the date that a
final prospectus is made available to such holder for distribution to
prospective purchasers of Registrable Securities it shall cease to distribute
copies of any preliminary prospectus prepared in connection with the offer and
sale of such Registrable Securities. Each holder of Registrable Securities
further agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(g), such holder shall
forthwith discontinue such holder's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 4(g) and, if so directed by the Company,
shall deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such holder's possession of the prospectus
relating to such Registrable Securities that are current at the time of receipt
of such notice. If any event of the kind described in Section 4(g) occurs and
such event is the fault solely of a holder (or holders) of Registrable
Securities, notwithstanding the provisions of Section 3 such holder (or holders)
shall pay all Expenses attributable to the preparation, filing and delivery of
any supplemented or amended prospectus contemplated by Section 4(g).
5. UNDERWRITTEN OFFERINGS.
(a) PIGGYBACK UNDERWRITTEN OFFERINGS; PRIORITY. If the Company
proposes to register any of its securities under the Securities Act as
contemplated by Section 2 hereof and such securities are to be distributed by or
through one or more underwriters, the Company shall, if requested by any
Requesting Holders, use its best efforts to arrange for such underwriters to
include all of the Registrable Securities to be offered and sold by such
Requesting Holders among the securities of the Company to be distributed by such
underwriters; PROVIDED, THAT if the managing underwriter of such underwritten
offering shall advise the Company in writing (with a copy to the Requesting
Holders) that if all the Registrable Securities requested to be included in such
registration were so included, in its opinion, the number of shares of
Registrable Securities, if any, proposed to be included in such registration
would exceed the aggregate number of shares which could be sold in such offering
within a price range acceptable to the Company and the Requesting Holders owning
a majority of the number of shares of the Registrable Securities requested to be
included in such registration (such writing to state the basis of such opinion
and the approximate aggregate number of shares of Registrable Securities, if
any, which may be included in such offering without such effect), then the
Company shall include in such
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registration, to the extent of the number of shares of Registrable Securities
which the Company is so advised can be sold in such offering, (i) first,
securities that the Company proposes to issue and sell for its own account and
(ii) second, Registrable Securities requested to be registered by the Requesting
Holders pursuant to Section 2 hereof and other securities as to which the
Company may have granted registration rights, PRO rata among the Requesting
Holders and the holders of such other securities on the basis of the aggregate
number of shares of Registrable Securities requested to be registered by all
such Requesting Holders and the number of such other shares as to which a
registration request shall have been made; PROVIDED, HOWEVER, that no such
reduction shall reduce the amount of Registrable Securities of the Requesting
Holders included in the registration below nineteen percent (19%) of the total
amount of securities included in such registration, unless such Public Offering
is the Company's Initial Public Offering and such registration does not include
securities of any other selling securityholders, in which event any or all of
the registrable Securities of the Requesting Holders may be excluded in
accordance with the first part of this sentence. Any Requesting Holder may
withdraw its request to have all or any portion of its Registrable Securities
included in such offering by notice to the Company within ten (10) days after
receipt of a copy of a notice from the managing underwriter pursuant to this
Section.
(b) HOLDERS OF REGISTRABLE SECURITIES TO BE PARTIES TO UNDERWRITING
AGREEMENT. The holders of Registrable Securities to be distributed by
underwriters in an underwritten offering contemplated by subsection (a) of this
Section 5 shall be parties to the underwriting agreement between the Company and
such underwriters and any such holder, at its option, may require that any or
all of the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such holders and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders. No such holder shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such holder, such holder's
Registrable Securities and such holder's intended method of distribution.
(c) SELECTION OF UNDERWRITERS FOR PIGGYBACK UNDERWRITTEN OFFERING.
The underwriter or underwriters of each piggyback underwritten offering pursuant
to this Section 5 shall be selected by the Company.
(d) HOLDBACK AGREEMENTS. Each holder of Registrable Securities
agrees, if so requested in writing by the managing underwriter for any
underwritten offering pursuant to this Agreement, not to effect any public sale
or distribution of any securities of the Company issued after the date hereof
during the ten (10) days prior to the date on which an underwritten registration
pursuant to Section 2 hereof has become effective and until the later of the
date on which the Public Offering to which such registration relates is
completed or ninety (90) days after the effective date of such underwritten
registration, except as part of such underwritten registration, provided that
all officers and directors of the Company and holders of at least one percent
(1%) of the Company's voting securities enter into similar agreements.
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6. PREPARATION; REASONABLE INVESTIGATION.
(a) REGISTRATION STATEMENTS. In connection with the preparation and
filing of each registration statement under the Securities Act pursuant to this
Agreement, the Company shall give each holder of Registrable Securities
registered under such registration statement, the underwriters, if any, and
their respective counsel and accountants the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment thereof or supplement thereto, and
shall give each of them such access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of any such holders', and such underwriters',
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act. Notwithstanding the foregoing, the Securityholders
acknowledge and agree that with respect to counsel and accountants for the
holders of Registrable Securities, the Company shall be under no obligation to
allow participation and access to more than one law firm and one accounting firm
selected by the holders of Registrable Securities registered under a
registration statement.
(b) CONFIDENTIALITY. Each holder of Registrable Securities shall
maintain the confidentiality of any confidential information received from or
otherwise made available by the Company to such holder of Registrable Securities
in the course of preparation of registration statements pursuant to Section 2
hereof and identified in writing by the Company as confidential. Information
that (i) is or becomes available to a holder of Registrable Securities from a
public source, (ii) is disclosed to a holder of Registrable Securities by a
third-party source who the holder of Registrable Securities reasonably believes
has the right to disclose such information or (iii) is or becomes required to be
disclosed by a holder of Registrable Securities by law or legal process,
including by court order, shall not be deemed to be confidential information for
purposes of this Agreement. The holders of Registrable Securities shall not
grant access, and the Company shall not be required to grant access, to
information under this Section 6 to any Person who will not agree to maintain
the confidentiality (to the same extent a holder of Registrable Securities is
required to maintain confidentiality) of any confidential information received
from or otherwise made available to it by the Company or the holders of
Registrable Securities under this Agreement and identified in writing by the
Company as confidential.
(c) COOPERATION BY THE COMPANY. The Company agrees to cooperate with
the holders of Registrable Securities in the marketing of Securities offered
pursuant to a registration statement prepared pursuant to Section 2 hereof,
including making available on a reasonable basis officers and employees of the
Company to participate in conference calls, meetings and "road shows" with
prospective purchasers.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the case of any registration
statement filed by the Company pursuant to Section 2 hereof, the Company shall,
and hereby agrees to, indemnify and hold harmless, each holder and seller of any
Registrable Securities covered by such registration statement and each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who Controls such holder or
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seller or any such underwriter, and their respective directors, officers,
partners, agents and Affiliates (each, a "COMPANY INDEMNITEE" for purposes of
this Section 7(a)), against any losses, claims, damages, liabilities (or actions
or proceedings, whether commenced or threatened, in respect thereof), joint or
several, and expenses, including, without limitation, the reasonable fees,
disbursements and other charges of legal counsel and reasonable costs of
investigation, to which such Company Indemnitee may become subject under the
Securities Act or otherwise (collectively, a "Loss" or "Losses"), insofar as
such Losses arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered or otherwise offered or sold under
the Securities Act or otherwise, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto
(collectively, "OFFERING DOCUMENTS"), any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances in which they were made not
misleading or any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law in connection with the offering covered by such Offering
Documents; PROVIDED THAT, the Company shall not be liable in any such case to
the extent that any such Loss arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such
Offering Documents in reliance upon and in strict conformity with written
information furnished to the Company by or on behalf of such Company Indemnitee
specifically stating that it is expressly for use therein; and PROVIDED FURTHER,
that the Company shall not be liable to any Person who participates as an
underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who Controls such underwriter in any such case to the extent
that any such Loss arises out of such Person's failure to send or give a copy of
the final prospectus, as the same may be then supplemented or amended, to the
Person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus (provided that the Company has timely
delivered a final prospectus in accordance with Section 4 above). Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such Company Indemnitee and shall survive the transfer of such
securities by such Company Indemnitee.
(b) INDEMNIFICATION BY THE OFFERORS AND SELLERS. In connection with
any registration statement filed by the Company pursuant to Section 2 hereof in
which a Securityholder has registered for sale Registrable Securities, each such
holder or seller of Registrable Securities shall, and hereby agrees to,
indemnify and hold harmless the Company and each of its directors and officers
and each other Person, if any, who Controls the Company (each, a "SECURITYHOLDER
INDEMNITEE" for purposes of this Section 7(b)), against all Losses insofar as
such Losses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Offering Documents, any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the light of
circumstances in which they were made not misleading, if such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in strict conformity with written information furnished to the Company
by such holder or seller of Registrable Securities specifically stating that it
is expressly for use therein or any violation or alleged violation by any such
holder or seller of Registrable Securities of the Securities Act, the Exchange
Act, any state securities law or any rule or regulation promulgated under the
Securities Act, the
10
Exchange Act or any state securities law in connection with the offering covered
by such Offering Documents; PROVIDED HOWEVER, that the liability of such
indemnifying party under this Section 7(b) shall be limited to the amount of the
net proceeds received by such indemnifying party in the offering giving rise to
such liability. Such indemnity shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Securityholder Indemnitee and
shall survive the transfer of such securities by such holder of Registrable
Securities.
(c) NOTICES OF LOSSES, ETC. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a Loss
referred to in the preceding subsections of this Section 7, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action;
PROVIDED HOWEVER, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under the preceding subsections of this Section 7, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, the indemnifying
party shall be entitled to participate in and, unless in such indemnified
party's reasonable judgment, based upon the written advice of its counsel, a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such Loss, to assume and control the defense thereof, in each case
at its own expense, jointly with any other indemnifying party similarly
notified, to the extent that it may wish, with counsel reasonably satisfactory
to such indemnified party, and after its assumption of the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall be liable for any settlement of any such action or proceeding
effected without its written consent, which consent shall not be unreasonably
withheld, delayed or conditioned. No indemnifying party shall, without the
consent of the indemnified party, which consent shall not be unreasonably
withheld, delayed or conditioned, 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 of such Loss or which requires action on the part of
such indemnified party or otherwise subjects the indemnified party to any
obligation or restriction to which it would not otherwise be subject.
(d) CONTRIBUTION. If the indemnification provided for in this Section
7 shall for any reason be unavailable to an indemnified party under subsection
(a) or (b) of this Section 7 in respect of any Loss, then, in lieu of the amount
paid or payable under subsection (a) or (b) of this Section 7, the indemnified
party and the indemnifying party shall contribute to the aggregate Losses
(including legal or other expenses reasonably incurred in connection with
investigating the same) (i) in such proportion as is appropriate to reflect the
relative fault of the Company and the prospective sellers of Registrable
Securities covered by the registration statement which resulted in such Loss or
action in respect thereof, with respect to the statements, omissions or action
which resulted in such Loss or action in respect thereof, as well as any other
relevant equitable considerations, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as shall be
appropriate to reflect the relative benefits received by the Company and such
prospective sellers from the offering of the securities covered by such
11
registration statement; PROVIDED THAT, for purposes of this clause (ii), the
relative benefits received by the prospective sellers shall be deemed not to
exceed the amount received by such prospective sellers. 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. The obligations, if any, of the
selling holders of Registrable Securities to contribute as provided in this
subsection (d) are several in proportion to the relative value of their
respective Registrable Securities covered by such registration statement and not
joint. In addition, no Person shall be obligated to contribute hereunder any
amounts in payment for any settlement of any action or Loss effected without
such Person's consent, which consent shall not be unreasonably withheld, delayed
or conditioned.
(e) OTHER INDEMNIFICATION. The Company and each holder who has
registered for sale Registrable Securities shall, with respect to any required
registration or other qualification of securities under any Federal or state law
or regulation of any governmental authority other than the Securities Act,
indemnify Securityholder Indemnitees and Company Indemnitees, respectively,
against Losses, or, to the extent that indemnification shall be unavailable to a
Securityholder Indemnitee or Company Indemnitee, contribute to the aggregate
Losses of such Securityholder Indemnitee or Company Indemnitee in a manner
similar to that specified in the preceding subsections of this Section 7 (with
appropriate modifications).
(f) INDEMNIFICATION PAYMENTS. The indemnification and contribution
required by this Section 7 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when bills are
received or any Loss is incurred.
8. REGISTRATION RIGHTS TO OTHERS.
If the Company shall at any time hereafter, provide to any holder of any
securities of the Company rights with respect to (i) the registration of such
securities under the Securities Act or the Exchange Act or (ii) the preparation
of an offering document for use in connection with the offer and sale thereof,
(A) such rights shall not be in conflict with or adversely affect any of the
rights provided in this Agreement to the holders of Registrable Securities and
(B) if such rights provided on terms or conditions in the aggregate more
favorable to such holder than the terms and conditions provided in this
Agreement, the Company shall provide (by way of amendment to this Agreement or
otherwise) such more favorable terms or conditions to the holders of Registrable
Securities under this Agreement.
9. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES.
The Company shall not effect or permit to occur any combination,
subdivision or reclassification of Registrable Securities that would materially
adversely affect the ability of the holders of Registrable Securities to include
such Registrable Securities in any registration of its securities under the
Securities Act contemplated by this Agreement or the marketability of such
Registrable Securities under any such registration or other offering.
10. RULE 144 AND RULE 144A.
After the Company has completed its initial Public Offering, the Company
shall take all actions reasonably necessary to enable holders of Registrable
Securities to sell such securities
12
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, (b) Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or (c) any similar rules or regulations
hereafter adopted by the commission, including, without limiting, the generality
of the foregoing, filing on a timely basis all reports required to be filed
under the Exchange Act. Upon the request of any holder of Registrable
Securities, the Company shall deliver to such holder a written statement as to
whether it has complied with such requirements.
11. AMENDMENTS AND WAIVERS.
This Agreement may be amended and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company shall have obtained the written consent to such amendment,
action or omission to act, of the holder or holders of at least 66-2/3% of the
aggregate number of shares of the Registrable Securities affected by such
amendment, action or omission to act (and, in the case of any amendment which
modifies, or any action or omission to act which is in contravention of, any of
the provisions of Section 3 or this Section 11 or as to the percentages of
holders required for any action or omission to perform any act hereunder, or any
amendment, action or omission to act which adversely affects any holder (or
former holder) of Registrable Securities, the written consent of each holder (or
former holder) so affected). The Company must consent to any amendment to this
Agreement.
12. NOMINEES FOR BENEFICIAL OWNERS.
In the event that any Registrable Securities are held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at its election in
writing delivered to the Company, be treated as the holder of such Registrable
Securities for purposes of any request or other action by any holder or holders
of Registrable Securities pursuant to this Agreement or any determination of the
aggregate number of shares of the Registrable Securities held by any holder or
holders of Registrable Securities contemplated by this Agreement. If the
beneficial owner of any Registrable Securities so elects, the Company may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Registrable Securities.
13. ASSIGNMENT.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns. Any Securityholder may assign to any Transferee (as permitted under
applicable law) of its Registrable Securities its rights and obligations under
this Agreement, provided that such Transferee shall agree in writing with the
parties hereto prior to the assignment to be bound by this Agreement as if it
were an original signatory hereto, whereupon such assignee shall for all
purposes be deemed to be a Securityholder under this Agreement. The Company may
not assign this Agreement or any right, remedy, obligation or liability arising
hereunder or by reason hereof.
14. CALCULATION OF PERCENTAGE INTERESTS IN REGISTRABLE SECURITIES. For
purposes of this Agreement, all references to an aggregate number of shares of
the Registrable Securities shall be calculated based upon the aggregate number
of shares of the Registrable Securities outstanding
13
at the time such calculation is made (including any Registrable Securities that
are issuable upon the conversion or exercise of any outstanding securities of
the Company) and shall exclude any Registrable Securities owned by the Company
or any Affiliate of the Company.
15. BASIC FINANCIAL INFORMATION AND REPORTING.
(a) The Company will maintain true books and records of account in
which full and correct entries will be made of all its business transactions
pursuant to a consistent system of accounting established and administered by
the Company's treasurer in consultation with the Company's independent certified
public accountants.
(b) As soon as practicable after the end of each fiscal year of the
Company, and in any event within ninety (90) days thereafter, the Company will
furnish to each holder of Registrable Securities a consolidated balance sheet of
the Company, as at the end of such fiscal Year, and a consolidated statement of
income and expenses of the Company, for such year, all prepared in accordance
with generally accepted accounting practices consistently applied, and setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail. Such financial statements shall be compiled by the
Company's regular independent public accountant or another accountant selected
by the Board of Directors.
(c) The company will furnish to each holder of Registrable
Securities, as soon as possible after the end of the first, second and third
quarterly accounting periods in each fiscal Year of the Company, and in any
event within forty-five (45) days thereafter, a consolidated balance sheet of
the Company, as at the end of each such quarterly period, and a consolidated
statement of income and expenses of the Company, for such period and for the
current fiscal year to date, prepared by the Company treasurer in consultation
with the Company's independent certified public accountants.
16. MISCELLANEOUS.
(a) FURTHER ASSURANCES. Each of the parties hereto shall execute such
documents and other papers and perform such further acts as may be reasonably
required or desirable to carry out the provisions of this Agreement and the
transactions contemplated hereby.
(b) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
any provisions hereof:
(c) REMEDIES. Each Securityholder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and the
Company hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(d) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding of the parties hereto in respect of the subject matter
contained herein, and there are no restrictions, promises, representations,
warranties, covenants, or undertakings with respect to
14
the subject matter hereof, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties hereto with respect to the subject matter hereof.
(e) NOTICES. Any notices or other communications to be given
hereunder by any party to another party shall be in writing, shall be delivered
personally, by telecopy, by certified or registered mail, postage prepaid,
return receipt requested, or by Federal Express or other comparable delivery
service, to the address of the party set forth on Exhibit A hereto or to such
other address as the party to whom notice is to be given may provide in a
written notice to the other parties hereto, a copy of which shall be on file
with the Secretary of the Company. Notice shall be effective when delivered if
given personally, when receipt is acknowledged if telecopied, three days after
mailing if given by registered or certified mail as described above, and one
business day after deposit if given by Federal Express or comparable delivery
service.
(f) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of The Commonwealth of
Massachusetts applicable to
agreements made to be performed entirely in such State.
(g) SEVERABILITY. Notwithstanding any provision of this Agreement,
neither the Company nor any Securityholder shall be required to take any action
which would be in violation of any applicable Federal or state securities law.
The invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity, legality or enforceability of any
other provision of this Agreement in such jurisdiction or the validity, legality
or enforceability of this Agreement, including any such provision, in any other
jurisdiction, it being intended that all rights and obligations of the panes
hereunder shall be enforceable to the fullest extent permitted by law.
(h) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
17. PROVISIONS SUBJECT TO OTHER AGREEMENTS.
The provisions hereof as applied generally or in a specific instance or to
a specific Person are subject to any other agreement to which such Person may be
a party, including without limitation, any stockholder agreement, any agreement
restricting transfers of shares or granting to others a right of first refusal
on any transfer of shares.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
OASIS SEMICONDUCTOR, INC.
By:/s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx, President
SECURITYHOLDERS:
/s/ Xxxxxxx X. Xxxxx, Xx. /s/ Xxxxxxx X. Xxxxx
-------------------------------------- -------------------------------------
Xxxxxxx X. Xxxxx, Xx., as Trustee of Xxxxxxx X. Xxxxx, as Trustee of the
the Xxxxxxx X. Xxxxx Family Trust UAD Xxxxxxx X. Xxxxx Revocable Trust
1/1/97 and as Trustee of the under Agreement dated September 25,
Xxxxxxx X Xxxxx, Xx. Revocable Trust 1989, and as Trustee of the
UAD 9/27/96 Xxxxxxx X Xxxxx, Xx. Family Trust UAD
1/1/97
/s/ Xxxx X. Xxxxx JetFax, Inc.
--------------------------------------
Xxxx X. Xxxxx
By:/s/ Xxxxxx X. Xxxxxx, III
----------------------------------
Xxxxxx X. Xxxxxx, III, President
16
EXHIBIT A
OASIS SEMICONDUCTOR., INC.
Piggyback Registration Rights Agreement
OWNERSHIP OF SECURITIES
Name and Address of Number of Shares of
Securityholder Securities Owned
-------------- ----------------
Xxxx X. Xxxxx 404,370 Shares of Common Stock
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx, 128,120 Shares of Series A Preferred Stock
Trustee of the Xxxxxxx X.
Xxxxx Revocable Trust
under Agreement dated
September 25, 1989
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx 70,600 Shares of Series A Preferred Stock
Trustee of the Xxxxxxx X.
Xxxxx, Xx. Family Trust
UAD 1/1/97
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Xx. 72,930 Shares of Series A Preferred Stock
Trustee of the Xxxxxxx X.
Xxxxx Family Trust
UAD 1/1/97
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Xx. 125,730 Shares of the Series A Preferred Stock
Trustee of the Xxxxxxx X.
Xxxxx, Xx. Revocable Trust
UAD 9/27/96
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
17
JetFax, Inc. 84,302 Shares of Series B Preferred Stock
0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
ATTN: Xxxxxx X. Xxxxxx, III
FAX: (000) 000-0000
NOTICE ADDRESS FOR THE COMPANY:
Oasis Semiconductor, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
18
FIRST JOINDER AND AMENDMENT TO
AMENDED AND RESTATED
PIGGYBACK
REGISTRATION AND INVESTOR RIGHTS AGREEMENT
THIS FIRST JOINDER AND AMENDMENT TO AMENDED AND RESTATED
PIGGYBACK
REGISTRATION AND INVESTOR RIGHTS AGREEMENT, dated as of April 27, 1999 ("First
Joinder") by and among Oasis Semiconductor, Inc., a Delaware corporation (the
"COMPANY"), and the persons listed in Exhibit A hereto who are holders of
securities of the Company and who are signatories to this Agreement
(individually a "SECURITYHOLDER" and collectively the "SECURITYHOLDERS"), amends
that certain Amended and Restated
Piggyback Registration and Investor Rights
Agreement dated as of December 22, 1997 by and among the Company and certain
securityholders.
On or prior to December 13, 1995, the Company issued 72,666 shares of
Common Stock $.001 par value per share ("Common Stock") to certain
Securityholders. On or about June 3, 1997, the Company issued an additional
7,509 shares of Common Stock to certain Securityholders. On or about November 5,
1997 the Company authorized a 10 for 1 stock split with respect to all shares of
its capital stock, resulting in 801,175 shares of Common Stock outstanding. On
or about December 9, 1997 the Company effected a conversion of 397,380 shares of
its outstanding Common Stock into the same number of Series A Preferred Stock,
$.001 par value per share ("Series A Preferred"). On or about December 22, 1997
the Company issued 84,302 shares of Series B Preferred Stock, $.001 par value
per share ("Series B Preferred") to JetFax, Inc., a Delaware corporation
("JetFax"), and on or about April 20, 1998, the Company issued an additional
103,758 shares of Series B Preferred to JetFax (now known as xXxx.xxx Inc.).
Approximately concurrently with the execution of this First Amendment, the
Company is issuing 124,641 shares of its Series C Preferred Stock, $.001 par
value per share (Series C Preferred) to certain persons listed as
Securityholders on Exhibit A. To induce the purchase of the Series C Preferred
of the Company, the Company hereby undertakes to include the Series C Preferred
as Registrable Securities herein and to provide the holders of the Series C
Preferred with all the rights and obligations of Securityholders hereunder.
In consideration of the premises, the parties hereto agree as follows:
1. AMENDMENT TO DEFINITIONS. Section 1 of the Amended and Restated
Piggyback Registration and Investor Rights Agreement is hereby amended by
substituting the following definitions for those set forth therein for the same
terms, and in the case of new definitions, by adding those new definitions to
that Section 1:
"SECURITYHOLDERS" means the securityholders of the Company listed on
the signature page hereto under the heading "SECURITYHOLDERS," and listed on
Exhibit A, together with their permitted Transferees, heirs and successors.
"SHARES" means the Company's shares of Series A Preferred, $.001 par
value per share, Series B Preferred $.001 par value per share, and Series C
Preferred, $.001 par value per share.
2. CONDITIONS TO EFFECTIVENESS. This First Joinder shall take effect on
a date (the "AMENDMENT EFFECTIVE DATE") when each of the parties hereto has duly
executed an original counterpart of this Amendment.
3. RATIFICATION. Except as expressly modified or waived hereby, each term
and provision of the Amended and Restated
Piggyback Registration and Investor
Rights Agreement and the other agreements executed in connection therewith is
hereby ratified and confirmed and shall continue in full force and effect. From
and after the Amendment Effective Date, all references to the Amended and
Restated
Piggyback Registration and Investor Rights Agreement shall be deemed to
be references to the Registration Agreement as amended by this First Joinder.
4. GOVERNING LAW. This First Joinder shall in all respects be governed
by, and construed and enforced in accordance with, the laws of the Commonwealth
of
Massachusetts applicable to agreements to be performed entirely in such
State.
5. COUNTERPARTS. This First Joinder may be executed in any number of
counterparts, which shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this First Joinder as
of the date first set forth above.
OASIS SEMICONDUCTOR, INC.
By:/s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx, President
SECURITYHOLDERS
/s/ Xxxxxxx X. Xxxxx, Xx. /s/ Xxxxxxx X. Xxxxx
-------------------------------------- -------------------------------------
Xxxxxxx X. Xxxxx, Xx., as Trustee of Xxxxxxx X. Xxxxx, as Trustee of the
the Xxxxxxx X. Xxxxx Family Trust Wrean Revocable Trust under Agreement
UAD 1/1/97 and as Trustee of the dated September 25, 1989, and as
Xxxxxxx X. Xxxxx, Xx. Revocable Trustee of the Xxxxxxx X Xxxxx, Xx.
Trust UAD 9/27/96 Family Trust UAD 1/1/97
/s/ Xxxx X. Xxxxx xXxx.xxx Inc.
--------------------------------------
Xxxx X. Xxxxx
/s/ Xxx X. Xxxxxxx By:/s/ Xxxx X. Xxxxx
-------------------------------------- ----------------------------------
Xxx X. Xxxxxxx Xxxx X. Xxxxx, CFO
2
The Sacajawea Fund
/s/ Xxxx X. Xxxxxxxx By:/s/Xxxxxxx X. Xxxxx, Xx.
-------------------------------------- ----------------------------------
Xxxx X. Xxxxxxxx
/s/Xxxxxx X. Xxxxxxxx /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------- -------------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxxxxx X. Xxxxxxxx
/s/Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
3
EXHIBIT A
OASIS SEMICONDUCTOR, INC.
Piggyback Registration Rights Agreement
OWNERSHIP OF SECURITIES
Name and Address of Number of Shares of
Securityholder Securities Owned
-------------- ----------------
Xxxx X. Xxxxx 404,370 Shares of Common Stock
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Trustee of 128,120 Shares of Series A Preferred Stock
the Xxxxxxx X. Xxxxx Revocable
Trust Under Agreement Dated
September 25, 1989
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Trustee of the 70,600 Shares of Series A Preferred Stock
Xxxxxxx X. Xxxxx, Xx. Family
Trust UAD 1/1/97
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Xx., Trustee of 72,930 Shares of Series A Preferred Stock
the Xxxxxxx X. Xxxxx Family
Trust UAD 1/1/97
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Xx., Trustee of 125,730 Shares of the Series A Preferred Stock
the Xxxxxxx X. Xxxxx, Xx. Revocable
Trust UAD 9/27/96
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
xXxx.xxx Inc. 188,060 Shares of Series B Preferred Stock
0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, III, Chairman
Fax (000)000-0000
4
The Sacajawea Fund 43,145 Shares of Series C Preferred Stock
Xxxxxxx X. Xxxxx, Xx., Managing Partner
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Xxx X. Xxxxxxx 10,000 Shares of Series C Preferred Stock
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxx X. Xxxxxxxx 9,587 Shares of Series C Preferred Stock
000 Xxxxxxxxx Xxxxxx, #0
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx 10,000 Shares of Series C Preferred Stock
Litecontrol Corporation
Xxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxxxx X. Xxxxxxxx 23,969 Shares of Series C Preferred Stock
0 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Xxxxxxx Xxxxxxx 9,587 Shares of Series C Preferred Stock
00 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
NOTICE ADDRESS FOR THE COMPANY
Oasis Semiconductor, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
5
EXHIBIT D
SECOND JOINDER AND AMENDMENT TO
AMENDED AND RESTATED
PIGGYBACK
REGISTRATION AND INVESTOR RIGHTS AGREEMENT
THIS SECOND JOINDER AND AMENDMENT TO AMENDED AND RESTATED PIGGYBACK
REGISTRATION AND INVESTOR RIGHTS AGREEMENT, dated as of June 25, 2001 ("SECOND
JOINDER") by and among Oasis Semiconductor, Inc., a Delaware corporation (the
"COMPANY"), and the persons listed in Exhibit A hereto who are holders of
securities of the Company and who are signatories to this Second Joinder
(individually a "SECURITYHOLDER" and collectively the "SECURITYHOLDERS"), amends
that certain Amended and Restated Piggyback Registration and Investor Rights
Agreement dated as of December 22, 1997 by and among the Company and certain
securityholders.
On or prior to December 13, 1995, the Company issued 72,666 shares of
Common Stock $.001 par value per share ("Common Stock") to certain
Securityholders. On or about June 3, 1997, the Company issued an additional
7,509 shares of Common Stock to certain Securityholders. On or about November 5,
1997 the Company authorized a 10 for 1 stock split with respect to all shares of
its capital stock, resulting in 801,175 shares of Common Stock outstanding. On
or about December 9, 1997 the Company effected a conversion of 397,380 shares of
its outstanding Common Stock into the same number of Series A Preferred Stock,
$.001 par value per share ("Series A Preferred"). On or about December 22, 1997
the Company issued 84,302 shares of Series B Preferred Stock, $.001 par value
per share ("Series B Preferred") to JetFax, Inc., a Delaware corporation
("JetFax"), and on or about April 20, 1998, the Company issued an additional
103,758 shares of Series B Preferred to JetFax (now known as J2 Global
Communications Inc.). On or about May 5, 1999, the Company issued an additional
106,288 shares of Series C Preferred to various investors. On or about September
17, 1999, the Company authorized a 10 for 1 stock split with respect to its
Common Stock. Approximately concurrently with the execution of this Second
Joinder, the Company is issuing 669,372 shares of its Series D Preferred Stock,
$.001 par value per share (Series D Preferred) to certain persons listed as
Securityholders on Exhibit A. To induce the purchase of the Series D Preferred
of the Company, the Company hereby undertakes to include the Series D Preferred
as Registrable Securities herein and to provide the holders of the Series D
Preferred with all the rights and obligations of Securityholders hereunder.
In consideration of the premises, the parties hereto agree as follows:
1. AMENDMENT TO DEFINITIONS. Section 1 of the Amended and Restated
Piggyback Registration and Investor Rights Agreement is hereby amended by
substituting the following definitions for those set forth therein for the same
terms, and in the case of new definitions, by adding those new definitions to
that Section 1:
"SECURITYHOLDERS" means the securityholders of the Company listed on
the signature page hereto under the heading "SECURITYHOLDERS," and listed on
Exhibit A, together with their permitted Transferees, heirs and successors.
"SHARES" means the Company's shares of Series A Preferred, $.001 par
value per share, Series B Preferred $.001 par value per share, Series C
Preferred, $.001 par value per share, and Series D Preferred, $.001 par value
per share.
2. CONDITIONS TO EFFECTIVENESS. This Second Joinder shall take effect
on a date (the "AMENDMENT EFFECTIVE DATE") when each of the parties hereto has
duly executed an original counterpart of this Amendment.
3. RATIFICATION. Except as expressly modified or waived hereby, each term
and provision of the Amended and Restated Piggyback Registration and Investor
Rights Agreement and the other agreements executed in connection therewith is
hereby ratified and confirmed and shall continue in full force and effect. From
and after the Amendment Effective Date, all references to the Amended and
Restated Piggyback Registration and Investor Rights Agreement shall be deemed to
be references to the Registration Agreement as amended by this Second Joinder.
4. GOVERNING LAW. This Second Joinder shall in all respects be
governed by, and construed and enforced in accordance with, the laws of the
Commonwealth of
Massachusetts applicable to agreements to be performed entirely
in such State.
5. COUNTERPARTS. This Second Joinder may be executed in any number of
counterparts, which shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Second Joinder as
of the date first set forth above.
OASIS SEMICONDUCTOR, INC.
By:/s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx, President
SECURITYHOLDERS
/s/ Xxxxxxx X. Xxxxx, Xx. /s/ Xxxxxxx X. Xxxxx
-------------------------------------- -------------------------------------
Xxxxxxx X. Xxxxx, Xx., as Trustee of Xxxxxxx X. Xxxxx, as Trustee of the
the Xxxxxxx X. Xxxxx Family Trust Wrean Revocable Trust under Agreement
UAD 1/1/97 and as Trustee of the dated September 25, 1989, and as
Xxxxxxx X Xxxxx, Xx. Revocable Trustee of the Xxxxxxx X Xxxxx, Xx.
Trust UAD 9/27/96 Family Trust UAD 1/1/97
/s/ Xxxx X. Xxxxx J2 Global, Inc.
--------------------------------------
Xxxx X. Xxxxx
By:[unsigned]
----------------------------------
2
/s/ Xxx X. Xxxxxxx
--------------------------------------
Xxx X. Xxxxxxx
The Sacajawea Fund
/s/ Xxxx X. Xxxxxxxx By:/s/Xxxxxxx X. Xxxxx, Xx.
-------------------------------------- -------------------------------------
Xxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx, Xx.
/s/Xxxxxx X. Xxxxxxxx /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------- ----------------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxxxxx X. Xxxxxxxx
/s/Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
3
--------------------------------------
Xxx X. Xxxxxxx
The Sacajawea Fund
By:
-------------------------------------- -------------------------------------
Xxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx, Xx.
-------------------------------------- ----------------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxxxxx X. Xxxxxxxx
/s/Xxxxxx X. Xxxxxxx
-------------------------------------- ----------------------------------------
Xxxxxxx Xxxxxxx Xxxxxx X. Xxxxxxx
/s/Xxxxxxx X. Xxxxxx /s/Xxxxx X. Xxxxx XX
-------------------------------------- ----------------------------------------
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxx XX
/s/Xxxx X. Xxxxxxx /s/Xxxx X. Xxxxx XX
-------------------------------------- ----------------------------------------
Xxxx X. Xxxxxxx Xxxx X. Xxxxx XX
/s/X. X. Xxxxxxxxx
--------------------------------------
Xxxxxxxx X. Xxxxxxxxx
3
EXHIBIT A
OASIS SEMICONDUCTOR, INC.
Piggyback Registration Rights Agreement
OWNERSHIP OF SECURITIES
Name and Address of Number of Shares of
Securityholder Securities Owned
-------------- ----------------
Xxxx X. Xxxxx 4,043,370 Shares of Common Stock
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Trustee of 128,120 Shares of Series A Preferred Stock
the Xxxxxxx X. Xxxxx Revocable
Trust Under Agreement Dated
September 25, 1989
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Trustee of the 70,600 Shares of Series A Preferred Stock
Xxxxxxx X. Xxxxx, Xx. Family
Trust UAD 1/1/97
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Xx., Trustee of 72,930 Shares of Series A Preferred Stock
the Xxxxxxx X. Xxxxx Family
Trust UAD 1/1/97
00 Xxx Xxxxx Xxxx
Xxxxxx, Xx 00000
Xxxxxxx X. Xxxxx, Xx., Trustee of 125,730 Shares of the Series A Preferred Stock
the Xxxxxxx X. Xxxxx, Xx. Revocable
Trust UAD 9/27/96
00 Xxx Xxxxx Xxxx
Xxxxxx, Xx 00000
J2 Global Communications Inc. 188,060 Shares of Series B Preferred Stock
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, General Counsel
4
The Sacajawea Fund 43,145 Shares of Series C Preferred Stock
Xxxxxxx X. Xxxxx, Xx., Managing Partner 202,840 Shares of Series D Preferred Stock
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Xxx X. Xxxxxxx 10,000 Shares of Series C Preferred Stock
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxx X. Xxxxxxxx 9,587 Shares of Series C Preferred Stock
000 Xxxxxxxx Xxxxxx, #00X
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx 10,000 Shares of Series C Preferred Stock
000 Xxxxxx Xxxxx 60,852 Shares of Series D Preferred Stock
Xxxxxxx, XX 00000
Xxxxxxxxx X. Xxxxxxxx 23,969 Shares of Series C Preferred Stock
0 Xxxxxxxxx Xxxxxx 40,568 Shares of Series D Preferred Stock
Xxxxxx Xxxx, XX 00000
Xxxxxxx Xxxxxxx 9,587 Shares of Series C Preferred Stock
00 Xxxx Xxxxxx 40,568 Shares of Series D Preferred Stock
Xxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 81,136 Shares of Series D Preferred Stock
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Xxxxx X. Xxxxx XX 40,568 Shares of Series D Preferred Stock
00 Xxxxxxx Xxxx
Xxxxx, XX 00000
Xxxx X. & Xxxxx X. Xxxxxxx 40,568 Shares of Series D Preferred Stock
000 Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxx XX 60,852 Shares of Series D Preferred Stock
00 Xxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxxx X. Xxxxxxxxx 40,568 Shares of Series D Preferred Stock
000 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
5
NOTICE ADDRESS FOR THE COMPANY:
Oasis Semiconductor, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000