EXHIBIT 2.2
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as
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of October 4, 1995, by and between SEMTECH CORPORATION, a Delaware corporation
(the "Company"), and each of the Persons who have executed this Agreement and
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are named in Annex A to this Agreement (each sometimes referred to herein
individually as an "Investor" and sometimes collectively as the "Investors").
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RECITALS
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A. Investors collectively own all of the outstanding shares of common
stock of Gamma, Inc. (dba ECI Semiconductor), a California corporation ("ECI").
B. Concurrently herewith, Semtech Acquisition Corp., a California
corporation and wholly owned subsidiary of the Company ("Acquisition") merged
with and into ECI (the "Merger") in accordance with the terms and conditions set
forth in that certain Agreement and Plan of Merger dated October 4, 1995 (the
"Merger Agreement").
C. In connection with the Merger, Investors will receive an aggregate of
775,000 shares of newly issued common stock of the Company (the "Shares") in
exchange for all of their stock in ECI.
D. The execution and delivery of this Agreement by the parties hereto are
a condition to consummation of the transactions contemplated in the Merger
Agreement.
Therefore, the parties hereto hereby agree as follows:
1. Definitions. Unless the context otherwise requires, the terms defined
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in this Section 1 shall have the meanings herein specified for all purposes of
this Agreement, applicable to both the singular and plural forms of any of the
terms herein defined.
"Agreement" means this Registration Rights Agreement.
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"Board" means the Board of Directors of the Company.
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"Closing Date" means the Closing Date as such term is defined in the Merger
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Agreement.
"Common Stock" means the common stock of the Company.
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"Commission" means the Securities and Exchange Com mission.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Investor" has the meaning assigned to it in the introductory paragraph of
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this Agreement.
"Person" includes any natural person, corporation, trust, association,
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company, partnership, joint venture and other entity and any government,
governmental agency, instrumentality or political subdivision.
"Prospectus" means the prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" means all reasonable expenses incurred by the
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Company in complying with Section 2 hereof, including all registration and
filing fees, listing fees for the Shares, printing expenses, fees and
disbursements of counsel for the Company, and blue sky fees and expenses in all
states.
"Registrable Securities" means all Shares and any Common Stock issued or
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issuable in respect of the Shares
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pursuant to any stock split, stock dividend, recapitalization, or similar event;
provided, however, that Registrable Securities shall cease to be Registrable
Securities when they may be sold pursuant to Rule 144 under the Securities Act.
"Registration Statement" means any registration statement of the Company
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which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
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amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission (excluding Rule 144A).
"Securities Act" means the Securities Act of 1933, as amended.
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2. Registration
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(a) Registration. The Company shall, not later than 90 days after
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the Closing Date (the "Filing Date"), prepare and file with the Commission a
Registration Statement pursuant to Rule 415 (or any appropriate similar rule
that may be adopted by the Commission) under the Securities Act covering the
Registrable Securities (the "Registration"). The Registration shall be on Form
S-3 or another appropriate form permitting registration of such Registrable
Securities for resale by such holders from time to time.
(b) Effectiveness. The Company shall use its best efforts to cause
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the Registration to become effective under the Securities Act as soon as
practicable following the Filing Date. Subject to the requirements of the
Securities Act including, without limitation, requirements relating to updating
through post-effective amendments or otherwise, the Company shall use its best
efforts to keep the Registration continuously effective until the third
anniversary of the Closing Date. The Company shall use its best efforts to take
such actions under the laws of various
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states as may be required to cause the resale of the Shares pursuant to the
Registration to be lawful.
(c) Following the effectiveness of a Registration Statement filed
pursuant to this section, the Company may, at any time, suspend the
effectiveness of such Registration for up to 60 days, as appropriate (a
"Suspension Period"), by giving notice to each Investor, if the Company shall
have determined that the Company may be required to disclose any material
corporate development which disclosure may have a material adverse effect on the
Company. Notwithstanding the foregoing, no more than two Suspension Periods
(i.e., 120 days) may occur in immediate succession. The period of any such
suspension of the registration statement shall be added to the period of time
the Company agrees to keep the Registration Statement effective as provided in
Section 2(b). The Company shall use its best efforts to limit the duration and
number of any Suspension Periods. Each Investor agrees that, upon receipt of any
notice from the Company of a Suspension Period, such Investor shall forthwith
discontinue disposition of shares covered by such Registration Statement or
prospectus until such Investor (i) is advised in writing by the Company that the
use of the applicable prospectus may be resumed, (ii) has received copies of a
supplemental or amended prospectus, if applicable, and (iii) has received copies
of any additional or supplemental filings which are incorporated or deemed to be
incorporated by reference in such prospectus.
3. Expenses of Registration. All Registration Expenses shall be borne by
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the Company; provided, however, that the term Registration Expenses shall not
include, and in no event will the Company be obligated to pay, expenses and fees
of counsel for the Investors, stock transfer taxes or underwriters' discounts or
commissions relating to Registrable Securities.
4. Obligations of the Company. To effect the registration of the
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Registrable Securities, the Company shall, as expeditiously as reasonably
possible.
(a) Prepare and file with the Commission such amendments and
supplements to a Registration Statement with respect to the Registrable
Securities and the prospectus used in connection with such Registration
Statement as may be necessary to comply with the provisions of the Securities
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Act with respect to the disposition of all securities covered by such
Registration Statement.
(b) Furnish to the Investors such numbers of copies of a Prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(c) Use its best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by the Investors,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(d) Notify each Investor of Registrable Securities covered by such
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the Prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(e) Furnish, at the request of any Investor requesting registration
of Registrable Securities pursuant to this Agreement, on the date the
Registration Statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the Investors of
Registrable Securities and (ii) a letter, dated such date, from the independent
accountants of the Company, in form and substance as is customarily given by
independent accountants to underwriters in an underwritten public offering,
addressed to the Investors requesting registration of Registrable Securities,
but only to the extent the foregoing opinions or letters are simultaneously
delivered to the underwriter in connection with such Registration Statement.
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5. Indemnification.
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(a) The Company will, and does hereby undertake to, indemnify and
hold harmless each Investor, each of such Investor's officers, directors,
partners and agents, and each Person controlling such Investor, with respect to
any registration, qualification, or compliance effected pursuant to this
Agreement, against all claims, losses, damages, and liabilities (or actions in
respect thereto) to which they may become subject under the Securities Act, the
Exchange Act, or other federal or state law arising out of or based on (i) any
untrue statements (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular, or other similar document (including any
related Registration Statement, notification, or the like) incident to any such
registration, qualification, or compliance, or based on any omission (or alleged
omission ) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) any violation
or alleged violation by the Company of any federal, state or common law rule or
regulation applicable to the Company in connection with any such registration,
qualification, or compliance, and will reimburse, as incurred, each such
Investor, each such underwriter, and each such director, officer, partner, agent
and controlling person, for any legal and any other expenses reasonably incurred
in connection with investigating or defending any such claim, loss, damage,
liability, or action; provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability or expense,
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company by an instrument duly executed by such
Investor and stated to be specifically for use therein.
(b) Each Investor will, if Registrable Securities held by or issuable
to such Investor are included in such registration, qualification, or
compliance, indemnify the Company, each of its directors, and each officer who
signs a Registration Statement in connection therewith, and each person
controlling the Company, and each other Investor, each of such other Investor's
officers, partners, directors and agents and each person controlling such other
Investor, against all claims, losses, damages, and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such Registration
Statement,
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prospectus, offering circular, or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse, as
incurred, the Company, each such other Investor, and each such director,
officer, partner, and controlling person, for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) was made in such Registration Statement,
prospectus, offering circular, or other document, in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Investor and stated to be specifically for use therein. In
no event will any Investor be required to enter into any agreement or
undertaking in connection with any registration under this Agreement providing
for any indemnification or contribution obligations on the part of such Investor
greater than such Investor's obligations under this Agreement.
(c) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to provide such
indemnification (the "Indemnifying Party") of any claim as to which
indemnification may be sought promptly after such Indemnified Party has actual
knowledge thereof, 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 subject to approval by the Indemnified Party (whose
approval shall not be unreasonably withheld) and the Indemnified Party may
participate in such defense at the Indemnifying Party's expense if
representation of such Indemnified Party would be inappropriate due to actual or
potential differing interests between such Indemnified Party and any other party
represented by such counsel in such proceeding; and provided further that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 5, except
to the extent that such failure to give notice shall materially adversely
affect the Indemnifying Party in the defense of any such claim or any such
litigation. No Indemnifying Party, in the defense of any such claim or
litigation,
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shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff therein, to
such Indemnified Party, of a release from all liability in respect to such claim
or litigation.
6. Information by Investor. Each Investor shall furnish to the Company
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such information regarding such Investor and the distribution proposed by such
Investor as the Company may reasonable request in writing and as shall be
required in connection with any registration, qualification, or compliance
referred to in this Agreement.
7. Delay of Registration. No Investor shall have any right to obtain or
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seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
8. Rule 144 Reporting. With a view to making available to the Investors
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the benefits of certain rules and regulations of the Commission which may permit
the sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144, as long as Registrable Securities are
outstanding;
(b) File with the Commission, in a timely manner, all reports and
other documents required of the Company under the Securities Act and the
Exchange Act;
(c) So long as any Investor owns any Registrable Securities, furnish
to such Investor forthwith upon request: a copy of the most recent annual or
quarterly report of the Company; and such other reports and documents as such
Investor may reasonably request in availing itself of any rule or regulation of
the Commission allowing it to sell any such securities without registration.
9. Miscellaneous.
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9.1 Waivers and Amendments. With the written consent of the
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Investors holding a majority of the Registrable Securities then outstanding, the
obligations of
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the Company and the rights of the Investors under this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely), and
with the same consent the Company, when authorized by resolution of its Board,
may enter into a supplementary agreement for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of any supplemental agreement or modifying in any manner the
rights and obligations hereunder of the Investors and the Company; provided,
however, that no such waiver or supplemental agreement shall reduce the
aforesaid proportion of Registrable Securities, which are required to consent to
any waiver or supplemental agreement, without the consent of the Investors then
holding all of the Registrable Securities. Upon the effectuation of each such
waiver, consent or agreement of amendment or modification, the Company agrees to
give promptly written notice thereof to the Investors who have not previously
consented thereto in writing. Neither this Agreement nor any provision hereof
may be changed, waived, discharged or terminated orally or by course of dealing,
but only by a statement in writing signed by the party against which enforcement
of the change, waiver, discharge or termination is sought, except to the extent
provided in this Section 9.1. No waiver by any party of the breach of any term
or provision contained in this Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such
breach, or a waiver of the breach of any other term or covenant contained in
this Agreement.
9.2 Effect of Waiver or Amendment. Each Investor acknowledges that
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by operation of Section 9.1 hereof Investors holding a majority of the
Registrable Securities will, subject to the limitations contained in such
Section 9.1, have the right and power to diminish or eliminate certain rights of
such Investor under this Agreement.
9.3 Rights of Investors Inter Se. Each Investor shall have the
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absolute right to exercise or refrain from exercising any right or rights which
such Investor may have by reason of this Agreement including, without
limitation, the right to consent to the waiver of any obligation of the Company
under this Agreement and to enter into an agreement with the Company for the
purpose of modifying this Agreement or any agreement effecting any such
modification, and such Investor shall not incur any liability to any other
Investor
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or Investors with respect to exercising or refraining from exercising any such
right or rights.
9.4 Notices. All notices, requests, consents and other
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communications required or permitted hereunder shall be in writing and shall be
delivered, or mailed first class postage prepaid, registered or certified mail,
(a) If to any Investor, addressed to such Investor at its address
shown on Annex A hereto, or at such other address as such Investor may specify
by written notice to the Company, or
(b) If to the Company, at 000 Xxxxxxxx Xxxx, Xxxxxxx Xxxx, XX
00000-0000, Attention: Xx. Xxxx X. Xxx, or at such other address as the Company
may specify by written notice to the Investors, and each such notice, request,
consent and other communication shall for all purposes of the Agreement be
treated as being effective or having been given when delivered, if delivered
personally, or, if sent by mail, at the earlier of its actual receipt or three
(3) days after the same has been deposited in a regularly maintained receptacle
for the deposit of United States mail, addressed and postage prepaid as
aforesaid.
9.5 Severability. Should any one or more of the provisions of this
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Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement,
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
9.6 Parties in Interest. All the terms and provisions of this
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Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto, whether so
expressed or not. Subject to the immediately preceding sentence, this Agreement
shall not run to the benefit of or be enforceable by any Person other than a
party to this Agreement and its successors and assigns.
9.7 Headings. The headings of the sections, subsections and
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paragraphs of this Agreement have been inserted for convenience of reference
only and do not con stitute a part of this Agreement.
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9.8 Choice of Law. It is the intention of the parties that the
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internal substantive laws, and not the laws of conflicts, of the State of
California should govern the enforceability and validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties.
9.9 Counterparts. This Agreement may be executed in any number of
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counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed personally or by a duly authorized representative thereof as of the
day and year first above written.
SEMTECH CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxx
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Title: PRESIDENT
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/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
/s/Xxxxx X Xxxxxxx
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Xxx Xxxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
EXTEK COMPANY,
a Virginia corporation
By:________________________________
Title:_____________________________
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ANNEX A
Initial Number of
Shares of
Registrable
Name of Investor Address of Investor Securities
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Xxxxxxx Xxxxx 00000 Xxxx Xxxxx Xxxx 000,000
Xxx Xxxxx, XX 00000
Xxxxxxx Xxxxxx 9510 Sugar Babe Drive 77,024
Xxxxxx, XX 00000
Xxx Xxxxxxx 0000 Xxxxxxx Xxx 00,000
Xxxxxxxxx, XX 00000
Xxxx Xxxxxx 00000 Xxxxx Xxxxx 14,968
Xxxxxxx, XX 00000
EXTEK Company X.X. Xxx 000 00,000
Xxxxxxx, XX 00000
