EXHIBIT 10.12
NOGATECH, INC.
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into as of January 13, 2000, by and between NOGATECH,
INC., a Delaware corporation (the "Corporation"), Challenge Fund-Etgar, L.P.,
a Delaware limited partnership, Xxx Xxxx Dreyfus & Cie, S.A., Xxxxx Xxxxxx,
Corex Israeli Industries, Ltd., Holland Venture BV, Ophir Holdings, Ltd.,
Docor International BV, Inventech Ltd., Ronchal Investments NV and Nomura
International plc (each individually, a "Holder" and collectively, the
"Holders").
RECITALS
A. Challenge Fund-Etgar, L.P., Xxx Xxxx Dreyfus & Cie, S.A., Xxxxx
Xxxxxx, Corex Israeli Industries, Ltd. ("Corex" and collectively, the 1997
Investors"), Holland Venture BV, Ophir Holdings, Ltd., Docor International
BV, Inventech Ltd., and Ronchal Investments NV (collectively, the "Holland
Investors", and together with the 1997 Investors, the "Existing Investors")
each entered into either (i) an Amended and Restated Registration Rights
Agreement with Nogatech, Inc., a California corporation ("Nogatech
California") dated as of August 17, 1997 (the "1997 Registration Rights
Agreement); or (ii) a Series A Preferred Stock Purchase Agreement with
Nogatech California, dated as of June 4, 1998 ( the "1998 Stock Purchase
Agreement", and together with the 1997 Registration Rights Agreement, the
"Prior Agreements").
B. Nogatech California was merged with and into the Corporation in
December 1999, and the shareholders of Nogatech California received in the
merger shares of common stock and Series A Convertible Preferred Stock, as
applicable, of the Corporation.
C. As of the date hereof, Nomura International plc ("Nomura") has
entered into a Series B Preferred Stock Agreement ("Purchase Agreement") with
the Corporation pursuant to which the Corporation is obligated to enter into
this Agreement.
D. The Existing Investors, Nomura, and the Corporation desire to
enter into this Agreement to (i) make the Corporation a party to this
Agreement and reflect that the Corporation's securities are subject to the
registration rights set forth in the Prior Agreements, (ii) to include Nomura
as a party to this Agreement as an inducement to Nomura to purchase shares of
Series B Convertible Preferred Stock of the Corporation, and (iii) to amend
and restate the 1997 Registration Rights Agreement and Section7 of the 1998
Stock Purchase Agreement such that the terms and conditions of the 1997
Registration Rights and Agreement and Section 7 of the 1998 Stock Purchase
Agreement shall have no further force and effect.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties contained in this Agreement, the parties
hereto hereby
agree as follows:
1. DEFINITIONS. As used herein, the following terms are defined
as follows:
a. "HOLDER" means any holder of outstanding Registrable
Shares or shares convertible into Registrable Shares, who acquired such
Registrable Shares or shares convertible into Registrable Shares in a
transaction or series of transactions not involving any registered public
offering.
b. "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended or any similar Federal statue and the rules and regulations
of the Commission thereunder all as the same shall be in effect at the time.
c. "FORM S-3" means Form S-3 under the Securities Act as in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the Securities and Exchange Commission ("SEC") which
permits inclusion or incorporation of substantial information by reference to
other documents files by the Corporation with the SEC.
d. "INITIATING HOLDERS" means the Existing Investors
holding Two Hundred Seventy Eight Thousand Six Hundred Sixty Two (278,662) of
the Registrable Shares, assuming for purposes of such determination the
conversion of all securities convertible into Registrable Shares.
e. "IPO" means the Corporation's initial firmly
underwritten public offering of its Common Stock pursuant to an effective
registration statement under the Securities Act.
f. "REGISTER", "REGISTERED" AND "REGISTRATION" refer to a
registration effected by filing a registration statement in compliance with
the Securities Act and the declaration or ordering by the Commission of
effectiveness of such registration statement, or the equivalent actions under
the laws of another jurisdiction.
g. "REGISTRABLE SHARES" means (i) all shares of Common
Stock of the Corporation issued or issuable upon conversion of the Series A
Convertible Preferred Stock of the Corporation held by the Existing
Investors, (ii) all shares of Common Stock of the Corporation issued or
issuable upon conversion of the Series B Convertible Preferred Stock of the
Corporation held by Nomura, and (iii) all Common Stock that the Holders may
hereafter acquire; PROVIDED, however, that any Common Stock that could be
distributed by the holder thereof (in accordance with applicable law) within
six (6) months following a request for registration under sections 2.a., 2.b.
and 2.c. herein without the registration of such shares, shall not be deemed
to be Registrable Shares.
h. "SECURITIES ACT" means the Securities Act of 1933, as
amended, or any similar Federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
2. REGISTRATION RIGHTS. The following provisions govern the
registration of the Corporation's Registrable Shares:
a. INCIDENTAL REGISTRATION. If the Corporation at any time
proposes to register any of its securities, other than in a demand
registration under Section 2.b. or Section 2.c. of this Agreement, it shall
give notice to the Holders of such intention. Upon the written request of
any Holder given within twenty (20) days after receipt of any such notice,
the Corporation shall include in such registration all of the Registrable
Shares indicated in such request so as to permit the disposition of the
shares so registered. Notwithstanding any other provision of this Section
2.a., if the managing underwriter advises the Corporation in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then there shall be excluded from such registration and
underwriting to the extent necessary to satisfy such limitation, first the
shares on a pro rata basis held by any shareholder, including any Holder,
participating in such registration, and thereafter shares to be issued by the
Corporation to the public.
b. DEMAND REGISTRATION.
(i) At any time beginning on the date of this
Agreement, the Initiating Holders may request in writing that all or part of
the Existing Investors' Registrable Shares shall be registered for trading on
any securities exchange. Any such demand must request the registration of
shares in a minimum amount of (A) in the case of an IPO, Ten Million United
States Dollars ($10,000,000); or (B) other than in the case of an IPO, Three
Million United States Dollars ($3,000,000). Within 20 days after receipt of
any such request, the Corporation shall give written notice of such request
to the other Holders and shall include in such registration all Registrable
Shares held by all such Holders who wish to participate in such demand
registration and provide the Corporation with written requests for inclusion
therein within 15 days after the receipt of the Corporation's notice.
Thereupon, the Corporation shall effect the registration of all Registrable
Shares as to which it has received requests for registration for trading on
the securities exchange specified in the request for registration; provided,
however, that the Corporation shall not be required to effect any
registration under this Section 2.b. within a period of one hundred and
eighty (180) days following the effective date of a previous registration.
Notwithstanding any other provision of Section 2.a, 2.c, or this Section
2.b(i), if the managing underwriter advises the Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then there shall be excluded from such registration and
underwriting to the extent necessary to satisfy such limitation, (Y) in the
case of an IPO, first the shares on a pro rata basis or in total if required
held by any shareholder, including any Holder, participating in such
registration, and thereafter, to the extent necessary, shares to be
registered by the Corporation; and (Z) other than in the case of an IPO,
first shares to be registered by the Corporation; and thereafter, to the
extent necessary, the shares on a pro rata basis held by any shareholder,
including any Holder. The Corporation may not cause any other registration
of scurities for sale for its own account (other than a registration effected
solely to implement an employee benefit plan or in a Rule 145 transaction) to
be initiated after a registration requested pursuant to this Section 2.b(i).
and to become effective less than 120 days after the effective date of any
registration requested pursuant to this Section 2.b(i). The Corporation shall
not be required to effect more than two (2) registrations under this Section
2.b(i).
(ii) At any time beginning one hundred eighty (180)
days following the closing of the IPO, Nomura may request in writing that all
or part of Nomura's Registrable Shares shall be registered for trading on any
securities exchange. Any such demand must request the registration of shares
in a minimum amount of Three Million
United States Dollars ($3,000,000). Within 20 days after receipt of any such
request, the Corporation shall give written notice of such request to the
other Holders and shall include in such registration all Registrable Shares
held by all such Holders who wish to participate in such demand registration
and provide the Corporation with written requests for inclusion therein
within 15 days after the receipt of the Corporation's notice. Thereupon, the
Corporation shall effect the registration of all Registrable Shares as to
which it has received requests for registration for trading on the securities
exchange specified in the request for registration; provided, however, that
the Corporation shall not be required to effect any registration under this
Section 2.b(ii), within a period of one hundred and eighty (180) days
following the effective date of a previous registration. Notwithstanding any
other provision of this Section 2, if the managing underwriter advises the
Holders in writing that marketing factors require a limitation of the number
of shares to be underwritten in a demand registration under this Section
2.b(ii), then there shall be excluded from such registration and underwriting
to the extent necessary to satisfy such limitation, first shares to be
registered by the Corporation; then, to the extent necessary, the shares held
by any shareholder other than Nomura, including any Holder other than Nomura,
on a pro rata basis or in total if required, and thereafter, to the extent
necessary, the shares to be registered by Nomura. The Corporation may not
cause any other registration of securities for sale for its own account
(other than a registration effected solely to implement an employee benefit
plan or in a Rule 145 transaction) to be initiated after a registration
requested pursuant to this Section 2.b(ii) and to become effectiveless than
120 days after the effective date of any registration requested pursuant to
this Section 2.b(ii). The Corporation shall not be required to effect more
than one (1) registration under this Section 2.b(ii).
(iii) In the event that Nomura requests registration of
its Registrable Shares under Section 2.b(ii) before either of the demand
registrations under Section 2.b(i) have been effected, the Holders may,
within 10 days following receipt of the Company's written notice under
Section 2.b(ii), elect to exercise their demand rights under Section 2.b(i).
In the event the Holders elect to request registration under Section 2.b(i),
the provisions of Section 2.b(i) shall apply to the registration effected,
and Nomura shall retain its right to request a registration under Section
2.b(ii) following such registration effected by the Holders.
c. FORM S-3 REGISTRATION. In case the Corporation shall
receive from any Holder or Holders a written request or requests that the
Corporation effect a registration on Form S-3, and any related qualification
or compliance, with respect to Registrable Shares where the aggregate net
proceeds from the sale of such Registrable Shares equals to at least One
Million United States Dollars ($1,000,000), the Corporation will within
twenty (20) days after receipt of any such request give written notice of the
proposed registration, and any related qualification or compliance, to all
other Holders, and include in such registration all Registrable Shares held
by all such Holders who wish to participate in such registration and provide
the Corporation with written requests for inclusion therein within 15 days
after the receipt of the Corporation's notice. Thereupon, the Corporation
shall effect such registration and all such qualifications and compliances as
may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Holder's or Holders' Registrable
Securities as are specified in such request, together with all or such
portion of the Registrable Securities of any other Holder or Holders joining
in such request as are specified in a written request given within fifteen
(15) days after receipt of such written notice from the Corporation;
PROVIDED, HOWEVER, that the
Corporation shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 2.c., (i) if Form S-3
is not available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Corporation entitled
to inclusion in such registration, propose to sell Registrable Securities and
such other securities (if any) at an aggregate price to the public (net of
any underwriters' discounts or commissions) of less than One Million United
States Dollars ($1,000,000); (iii) if the Corporation shall furnish to the
Holders a certificate signed by the President of the Corporation stating that
in the good faith judgment of the Board of Directors of the Corporation it
would be seriously detrimental to the Corporation or its stockholders for
such Form S-3 registration statement to be effected at such time, in which
event the Corporation shall have the right to defer the filing of the Form
S-3 registration statement for a period of not more than one hundred twenty
(120) days after receipt of the request of the Holder or Holders under this
Section 2.c.; PROVIDED, HOWEVER, that the Corporation shall not utilize this
right more than once in any twelve (12) months period; (iv) if the
Corporation has, preceding the date of such request, already effected two (2)
registrations on Form S-3 for the Holders pursuant to this Section 2.c.; (v)
during the period starting with the date sixty (60) days prior to the
Corporation's estimated date of filing of, and ending on the date six (6)
months immediately following the effective date of, any registration
statement pertaining to securities of the Corporation (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Corporation is actively employing
in good faith reasonable efforts to cause such registration statement to
become effective and that the Corporation's estimate of the date of filing
such registration statement is made in good faith; or (vi) in any particular
jurisdiction in which the Corporation would be required to qualify to do
business or to execute a general consent to service of process in effecting
such registration, qualification or compliance. Notwithstanding the
provisions of this Section 2.c and in addition thereto, in the event the
Holland Investors' and/or Nomura's Registrable Shares are not sold in full
after exercise of the Holland Investors' or Nomura's, as the case may be
rights pursuant to this Section 2.c, each of the Holland Investor and Nomura
shall be entitled to an additional Form S-3 Registration for its remaining
unsold Registrable Shares under the terms and conditions of this Section 2.c.
d. DESIGNATION OF UNDERWRITER. In the case of any
registration effected pursuant to this Section 2, the Corporation shall have
the right to designate the managing underwriter(s) in any underwritten
offering.
e. EXPENSES. All expenses incurred in connection with any
registration under Section 2.a., Section 2.b. or Section 2.c. shall be borne
by the Corporation; PROVIDED, however, that each of the Holders participating
in such registration shall pay its pro rata portion of the discounts or
commissions payable to any underwriter.
f. INDEMNITIES. In the event of any registered offering of
Common Stock pursuant to this Section 2:
i. The Corporation will indemnify and hold harmless,
to the fullest extent permitted by law, any Holder and any underwriter for
such Holder, and each person, if any, who controls the Holder or such
underwriter, from and against any and all losses, damages, claims,
liabilities, joint or several, costs and expenses (including any amounts paid
in any settlement effected with the Corporation's consent) to which the
Holder or any such underwriter or controlling person may become subject under
applicable law or
otherwise, insofar as such losses, damages, claims, liabilities (or actions
or proceedings in respect thereof), costs or expenses arise out of or are
based upon (A) any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or included in the
prospectus, as amended or supplemented, or (B) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they are made, not misleading, and the Corporation will reimburse the
Holder, such underwriter and each such controlling person of the Holder or
the underwriter, promptly upon demand, for any reasonable legal or any other
expenses incurred by them in connection with investigating, preparing to
defend or defending against or appearing as a third-party witness in
connection with such loss, claim, damage, liability, action or proceeding;
PROVIDED, HOWEVER, that the Corporation will not be liable in any such case
to the extent that any such loss, damage, liability, cost or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information furnished
in writing by a Holder, such underwriter or such controlling persons
specifically for inclusion therein; PROVIDED, FURTHER, that this indemnity
shall not be deemed to relieve any underwriter of any of its due diligence
obligations; PROVIDED, FURTHER, that the indemnity agreement contained in
this subsection 2.f.(i). shall not apply to amounts paid in settlement of any
such claim, loss, damage, liability or action if such settlement is effected
without the consent of the Corporation, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the selling
shareholder, the underwriter or any controlling person of the selling
shareholder or the underwriter, and regardless of any sale in connection with
such offering by the selling shareholder. Such indemnity shall survive the
transfer of securities by a selling shareholder.
ii. Each Holder participating in a registration
hereunder will indemnify and hold harmless the Corporation, any underwriter
for the Corporation, each officer and director of the Corporation, and each
person, if any, who controls the Corporation or such underwriter, from and
against any and all losses, damages, claims, liabilities, costs or expenses
(including any amounts paid in any settlement effected with the selling
shareholder's consent) to which the Corporation or any such controlling
person and/or any such underwriter may become subject under applicable law or
otherwise, insofar as such losses, damages, claims, liabilities (or actions
or proceedings in respect thereof), costs or expenses arise out of or are
based on (A) any untrue or alleged untrue statement of any material fact
contained in the registration statement or included in the prospectus, as
amended or supplemented, or (B) the omission or the 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, and each such Holder will reimburse the Corporation,
any underwriter each officer and director of the Corporation and each such
controlling person of the Corporation or any underwriter, promptly upon
demand, for any reasonable legal or other expenses incurred by them in
connection with investigating, preparing to defend or defending against or
appearing as a third-party witness in connection with such loss, claim,
damage, liability, action or proceeding; 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 so made in substantial conformity with
written information furnished by such Holder specifically for inclusion
therein. The foregoing indemnity agreement is subject to the condition that,
insofar as it relates to any such untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in the preliminary
prospectus but eliminated or remedied in the amended
prospectus at the time the registration statement becomes effective or in the
final prospectus, such indemnity agreement shall not inure to the benefit of
(Y) the Corporation and (Z) any underwriter, if a copy of the final
prospectus was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is
required by the Securities Act; PROVIDED, FURTHER, that this indemnity shall
not be deemed to relieve any underwriter of any of its due diligence
obligations; PROVIDED, FURTHER, that the indemnity agreement contained in
this subsection 2.f.(ii) shall not apply to amounts paid in settlement of any
such claim, loss, damage, liability or action if such settlement is effected
without the consent of the Holders, as the case may be, which consent shall
not be unreasonably withheld. In no event shall the liability of a Holder
exceed the gross proceeds from the offering received by such Holder.
iii. Promptly after receipt by an indemnified party
pursuant to the provisions of Sections 2.f.(i) or 2.f.(ii) of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to
be made against the indemnifying party pursuant to the provisions of said
Section 2.f.(i) or 2.f.(ii), promptly notify the indemnifying party of the
commencement thereof; but the omission to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than hereunder. In case such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall have the right to participate in, and,
to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; PROVIDED, HOWEVER, that if the
defendants in any action include both the indemnified party and the
indemnifying party and there is a conflict of interest which would prevent
counsel for the indemnifying party from also representing the indemnified
party, the indemnified party or parties shall have the right to select one
separate counsel to participate in the defense of such action on behalf of
such indemnified party or parties. After notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party pursuant
to the provisions of said Sections 2.f.(i) or 2.f.(ii) for any legal or other
expense subsequently incurred by such indemnified party in connection with
the defense thereof, unless (A) the indemnified party shall have employed
counsel in accordance with the provision of the preceding sentence, (B) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after the notice of the commencement of the action and within 15 days
after written notice of the indemnified party's intention to employ separate
counsel pursuant to the previous sentence, or (C) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party. No indemnifying party will 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 to such claim or
litigation.
iv. If recovery is not available under the foregoing
indemnification provisions, for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be
entitled to contribution to liabilities and expenses as more fully set forth
in an underwriting agreement to be executed in connection with such
registration. In determining the amount of contribution to which the
respective parties are entitled, there shall be considered the parties'
relative knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission,
and any other equitable considerations appropriate under the circumstances.
g. OBLIGATIONS OF THE CORPORATION. Whenever required under
this Section 2 to effect the registration of any Registrable Shares, the
Corporation shall, as expeditiously as possible:
i. prepare and file with the SEC a registration
statement with respect to such Registrable Shares and use its best efforts to
cause such registration statement to become effective, and, upon the request
of the holders of a majority of the Registrable Shares registered thereunder,
keep such registration statement effective for a period of up to one hundred
twenty (120) days or, if sooner, until the distribution contemplated in the
Registration Statement has been complete.
ii. prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the Securities Act with respect to the disposition of
all Registrable Shares covered by such registration statement.
iii. furnish to the Holders 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
Shares owned by them.
iv. in the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such offering.
Each Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
v. notify each holder of Registrable Shares 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.
vi. cause all Registrable Shares registered pursuant
hereunder to be listed on each securities exchange on which similar
securities issued by the Corporation are then listed.
vii. provide a transfer agent and registrar for all
Registrable Shares registered pursuant hereunder and a CUSIP number for all
such Registrable Shares, in each case not later than the effective date of
such registration.
viii. furnish, at the request of any Holder requesting
registration of Registrable Shares pursuant to this Section 2, on the date
that such Registrable Shares are delivered to the underwriters for sale in
connection with a registration pursuant to this
Section 2, if such securities are being sold through underwriters, or, if
such securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i)
an opinion, dated such date, of the counsel representing the Corporation for
the purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Shares and (ii) a letter dated such date, from the independent
certified public accountants of the Corporation, in form and substance as is
customarily given by independent certified public accountants to underwriters
in an underwritten public offering, addressed to the underwriters, if any,
and to the Holders requesting registration of Registrable Shares.
ix. ASSIGNMENT OF REGISTRATION RIGHTS. Holder may
assign its rights to cause the Corporation to register Purchased Shares
pursuant to this Section 2 to a transferee of at least twenty-five percent
(25%) of its Registrable Shares. The transferor shall, within twenty (20)
days after such transfer, furnish the Corporation with written notice of the
name and address of such transferee and the securities with respect to which
such registration rights are being assigned, and the transferee's written
agreement to be bound by this Section 2.
x. LOCK-UP. In any registration of the
Corporation's shares all Holders agree that (A) in the case of an IPO, any
sales of Registrable Shares may be subject to a "lock-up" period restricting
such sales for a period beginning fourteen (14) days prior to, and ending, at
the discretion of the underwriter, up to one hundred and eighty (180) days
following the effective date of the registration ("Lock-Up Period"), and all
Holders will agree to abide by such Lock-Up Period as is required by the
underwriter in such registration; (B) other than in the case of an IPO, the
sales of the Holders' Registrable Shares participating in such registration
may be subject to the Lock-Up Period restricting such sales for the Lock-Up
Period, and all Holders will agree to abide by such Lock-Up Period as is
required by the underwriter in such registration; and (C) each Holder that is
not participating in a given Registration in which Registrable Shares are
included agrees not to sell or distribute any shares of the Corporation
during such Lock-Up Period as is required by the underwriter in such
registration.
xi. PUBLIC INFORMATION. At any time and from time to
time after the earlier of the close of business on such date as (a) a
registration statement filed by the Corporation under the Securities Act
becomes effective, (b) the Corporation registers a class of securities under
Section 12 of the Exchange Act, or (c) the Corporation issues an offering
circular meeting the requirements of Regulation A under the Securities Act,
the Corporation shall undertake to make publicly available and available to
the Holders pursuant to Rule 144, such information as is necessary to enable
the Holders to make sales of Registrable Shares pursuant to that Rule. The
Corporation shall comply with the current public information requirements of
Rule 144 and shall furnish thereafter to any Holder, upon request, a written
statement executed by the Corporation as to the steps it has taken to so
comply.
h. TERMINATION OF REGISTRATION RIGHTS. Any and all of a
Holder's Registration Rights provided for in this Section 2 shall expire and
terminate if (i) the Company has completed an IPO and is subject to the
Exchange Act, and (ii) all Registrable Securities held by and issuable to
Holder (and its affiliates) may be sold under Rule 144
during any ninety (90) day period.
3. MISCELLANEOUS.
a. AMENDMENT, WAIVER, ADDITIONAL REGISTRATION RIGHTS. This
Agreement may be amended or modified by the consent in writing of the
Corporation, Nomura and a majority-in-interest of all of the Existing
Investors. The Corporation may not grant registration rights to additional
parties without the prior written consent of Nomura and a
majority-in-interest of all of the Existing Investors.
b. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
covenants and agreements made herein shall survive the closing of the sale of
the Corporation's Series A Preferred Stock to each of the Holders and shall
terminate according to the terms set forth in Section 2.
c. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
d. SEVERABILITY. Each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of this
Agreement.
e. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts when taken together shall
constitute one and the same Agreement.
f. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
g. NOTICE. Any notice, payment, report or other
communication required or permitted to be given by one party to any other
party by this Agreement shall be in writing and either (i) served personally
on the other party or parties; (ii) sent by express, registered or certified
first class mail, postage prepaid, addressed to the other party or parties at
its or their address or addresses as indicated next to their signatures
below, or to such other address as any addressee shall have theretofore
furnished to the other parties by like notice; (iii) delivered by commercial
courier to the other party or parties; or (iv) sent by facsimile. Such
notice shall be deemed received (A) on the third day after sending if sent by
one day courier; (B) to the extent such day is a business as recognized by
the country of sender's principal place of business, on the day of
transmission of such notice by facsimile, or, to the extent such day is not a
business as recognized by the country of sender's principal place of
business, on the first business day of the sender following the day of
transmission, in each case if the recipient has the capability to receive a
facsimile at its address, the sender has the capability of obtaining from its
facsimile machine a confirmation of transmission and the sender mails to the
recipient a copy of such confirmation by regular first class mail no later
than the next business day (as recognized by the country of sender's
principal place of business) following such transmission; and
(C) upon receipt if sent by other methods.
IF TO HOLDERS: Corex Israeli Industries, Ltd.
Corex Building
Maskit Street, 4th Floor
Herzelia Pituah 46733, Israel
Challenge Fund-Etgar, L.P.
One Xxxxxxxx Xxxxxx
X. X. Xxx 00
Xxxxxx 00000, Xxxxxx
Xxx Xxxx Dreyfus & CIE Societe Anonyme
Banquiers
c/o Xxxx Xxxxxxxx
Ajix Trading Co.
0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Xxxxx Xxxxxx
00 Xx. Xxxxx Rise, No. 00-00
Xxxxxxxxx Xxxxx, Xxxxxx Xxxx 000000
Republic of Singapore
Nomura International plc
Xxxxxx Xxxxx
0 Xx. Xxxxxx'x - xx - Xxxxx
Xxxxxx ECIA 4NP
Telecopy 011-44-171-521-3655
Attn: Xxxxx Xxxxxxxxx
WITH A COPY TO: Weil, Gotshal & Xxxxxx LLP
One South Place
London ECZM ZWG
Telecopy 011-44-171-903-0990
Attn: Xxxxxxx X. Xxxxxx, Esq.
IF TO THE CORPORATION: Nogatech, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
WITH A COPY TO: Bay Venture Counsel, LLP
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
h. TITLES AND SUBTITLES. The titles of the Sections and
subsections of this Agreement are for the convenience of reference only and
are not to be considered in construing this Agreement.
i. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts between Delaware residents entered into and to be performed
entirely within the State of Delaware.
j. DISPUTES. Any dispute arising out of the transactions
contemplated by this Agreement shall be adjudicated by a court of competent
jurisdiction sitting in the city of Tel Aviv/Jaffa, subject, in any event, to
the provisions of section 3(i) of this Agreement. The parties hereby submit
themselves to the exclusive jurisdiction of such courts for the purposes
hereof.
k ATTORNEYS FEES. If either party to this Agreement
shall bring any action for any relief against the other, declaratory or
otherwise, arising out of this Agreement, the losing party shall pay to the
prevailing party a reasonable sum as determined by the court for attorneys
fees incurred in bringing such suit and/or enforcing any judgment granted
therein, all of which shall be deemed to have accrued upon the commencement
of such action and shall be paid whether or not such action is prosecuted to
judgment. Any judgment or order entered in such action shall contain a
specific provision providing for the recovery of attorneys fees and costs
incurred in enforcing such judgment. For the purposes of this section,
attorneys fees shall include, without limitation, fees incurred in the
following: (1) post-judgment motions; (2) contempt proceedings; (3)
garnishment, levy and debtor and third-party examinations; (4) discovery;
and, (5) bankruptcy litigation.
Should judicial proceedings be commenced to enforce or carry out this
provision or any award or judgment in connection with this Agreement, the
prevailing party in such proceedings shall be entitled to reasonable
attorneys' fees and costs in addition to other relief. Either party shall
have the right, prior to receiving an arbitration award, to obtain
preliminary relief from a court of competent jurisdiction to avoid injury or
prejudice to that party. addressed as follows:
l SCHEDULES AND EXHIBITS. All Exhibits of the Purchase
Agreement are an integral part of this Agreement and incorporated fully
herein.
m SPECIFIC PERFORMANCE. Each party's obligation under
this Agreement is unique. If any party should default in its obligations
under this Agreement, the parties each acknowledge that it would be extremely
impracticable to measure the resulting damages; accordingly, the
nondefaulting party, in addition to any other available rights or remedies,
may xxx in equity for specific performance and the parties each expressly
waive the defense that a remedy in damages will be adequate.
n FINAL AGREEMENT. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter hereof and
supersedes and terminates all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written,
including but not limited to the 1997 Registration Rights Agreement and
Section 7 of the 1998 Stock Purchase Agreement and each of the Existing
Investors' (other than Corex's) Series A Preferred Stock Purchase Agreements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
(SIGNATURES FOLLOW ON NEXT PAGE)
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
CORPORATION:
NOGATECH, INC.
a Delaware corporation Ophir Holdings Ltd.
By: /s/ X. Xxxxxx By: /s/ X. Xxxxxx
---------------------------------- --------------------------
Xxxx Xxxxxx /s/ S. Wolkamir
President and CEO --------------------------
HOLDER:
COREX ISRAELI INDUSTRIES, LTD. DOCOR International
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx Xxxxx
---------------------------------- --------------------------
(Signature)
Managing Director Ronchal Investments NV
------------------------------------- By: /s/ Xxxxx Xxxxx
(Print Name and Title) --------------------------
CHALLENGE ETGAR-FUND, L.P. Inventech, Inc.
By: /s/ Xxxxx Xxxxx, CEO
--------------------------
By: /s/ J. Ciechanaver
----------------------------------
(Signature)
President
-------------------------------------
(Print Name and Title)
XXX XXXX DREYFUS & CIE, S.A.
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
-------------------------------------
NOMURA INTERNATIONAL PLC
By: /s/ K. Yamazoe
----------------------------------
(Signature)
Director
-------------------------------------
(Print Name and Title)
