EXHIBIT 10.2
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the "Agreement")
is made as of the 24th day of March, 2006, by and between SIMTEK CORPORATION, a
Colorado corporation ("Simtek"), and CYPRESS SEMICONDUCTOR CORPORATION, a
Delaware corporation ("Cypress").
RECITALS
WHEREAS, Simtek and Cypress previously executed a Share Purchase Agreement
dated as of May 4, 2005 (the "Purchase Agreement"), pursuant to which Simtek
issued to Cypress 6,740,816 shares of common stock, par value $0.01 per share,
of Simtek (the "Simtek Shares") and warrants to purchase up to 5,055,612 shares
of common stock, par value $0.01 per share, of Simtek (the "Existing Warrant
Shares");
WHEREAS, in connection with the execution of the Purchase Agreement, the
parties executed a Registration Rights Agreement, dated May 4, 2005 (the
"Existing Registration Rights Agreement"), pursuant to which Cypress was granted
registration rights with respect to the Simtek Shares and the Existing Warrant
Shares;
WHEREAS, as of the date hereof, Simtek and Cypress entered into that
certain Joint Development and License Agreement, pursuant to which, among other
things: (a) Simtek issued Cypress additional warrants to purchase up to
10,000,000 shares of common stock, par value $0.01 per share, of Simtek (the
"March 2006 Warrant Shares"); (b) Simtek agreed to issue to Cypress on June 30,
2006, upon satisfaction of certain conditions, an additional warrant to purchase
up to 5,000,000 shares of common stock, par value $0.01 per share, of Simtek
(the "June 2006 Warrant Shares"); and (c) Simtek agreed to issue to Cypress on
December 31, 2006, upon satisfaction of certain conditions, an additional
warrant to purchase up to 5,000,000 shares of common stock, par value $0.01 per
share, of Simtek (the "December 2006 Warrant Shares"). For purposes of this
Agreement, the term "Warrant Shares" shall include: (i) the Existing Warrant
Shares; (ii) the March 2006 Warrant Shares; (iii) if and when the warrant with
respect to the June 2006 Warrant Shares is issued to Cypress, the June 2006
Warrant Shares; and (iv) if and when the warrant with respect to the December
2006 Warrant Shares is issued to Cypress, the December 2006 Warrant Shares.
WHEREAS, the parties desire to amend and restate the Existing Registration
Rights Agreement in its entirety to grant Cypress registration rights with
respect to the March 2006 Warrant Shares and, potentially, the June 2006 Warrant
Shares and the December 2006 Warrant Shares.
NOW, THEREFORE, THE PARTIES HEREBY AMEND AND RESTATE THE EXISTING
REGISTRATION RIGHTS AGREEMENT IN ITS ENTIRETY AND AGREE AS FOLLOWS:
1. Definitions. For purposes of this Agreement:
1.1. The term "Affiliate" shall mean with respect to any individual,
corporation, partnership, association, trust, or any other entity (in each case,
a "Person"), any Person which, directly or indirectly, controls, is controlled
by or is under common control with such Person.
1.2. The term "Common Stock" shall mean shares of Simtek's common
stock, par value $0.01 per share.
1.3. The term "Development Agreement" shall mean that certain License
and Development Agreement, of even date herewith, by and between Cypress and
Simtek.
1.4. The term "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
1.5. The term "Form S-3" means such form under the Securities Act as in
effect on the date hereof or any successor registration form under the
Securities Act subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents filed
by Simtek with the SEC.
1.6. The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document by the SEC
(which the parties acknowledge is in the SEC's discretion).
1.7. The term "Registrable Securities" means (i) the Simtek Shares and
the Warrant Shares, and (ii) any Common Stock of Simtek issued as (or issuable
upon the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of the shares referenced in clause (i) above, excluding in all
cases, however, any Registrable Securities sold by a person in a transaction in
which his rights and obligations under this Agreement are not assigned.
1.8. The term "Registrable Securities then outstanding" means the
number of shares determined by adding the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
1.9. The term "SEC" means the Securities and Exchange Commission.
1.10. The term "SEC Rule 144" means Rule 144 promulgated by the SEC
under the Securities Act.
1.11. The term "SEC Rule 144(k)" means Rule 144(k) promulgated by the
SEC under the Securities Act.
1.12. The term "SEC Rule 145" means Rule 145 promulgated by the SEC
under the Securities Act.
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1.13. The term "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
1.14. The term "Violation" means losses, claims, damages, or
liabilities (joint or several) to which a party hereto may become subject under
the Securities Act, the Exchange Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations: (i) any untrue statement or alleged untrue statement of a material
fact contained in a registration statement filed by Simtek pursuant to Section
2.1 or Section 2.9, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the 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 (iii) any
violation or alleged violation by any party hereto, 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 registration statement filed by Simtek pursuant to Section 2.1
or Section 2.9.
2. Registration Rights. Simtek covenants and agrees as follows:
2.1. Simtek Registration. If Simtek proposes to register (including for
this purpose a registration effected by Simtek for stockholders other than
Cypress) any of its stock or other securities under the Securities Act in
connection with the public offering of such securities solely for cash (other
than a registration statement relating either to the sale of securities to
employees of Simtek pursuant to a stock option, stock purchase or similar plan
or an SEC Rule 145 transaction, a registration on any form which does not
include substantially the same information as would be required to be included
in a registration statement covering the sale of the Registrable Securities or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered,
Simtek shall, at such time, promptly give Cypress written notice of such
registration. Upon the written request of Cypress given within twenty (20) days
after mailing of such notice by Simtek in accordance with Section 3.5, Simtek
shall, subject to the provisions of Section 2.3 and Section 2.5, use its
commercially reasonable efforts to cause to be registered under the Securities
Act all of the Registrable Securities that Cypress has requested to be
registered. Simtek shall have the right to terminate or withdraw any
registration initiated by it under this Section 2.1 prior to the effectiveness
of such registration whether or not Cypress has elected to include securities in
such registration. The expenses of such withdrawn registration shall be borne by
the parties in accordance with Section 2.4 hereof.
2.2. Obligations of Simtek. Whenever required under this Section 2 to
use its commercially reasonable efforts to effect the registration of any
Registrable Securities, Simtek shall, as expeditiously as reasonably possible,
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective, and, upon the
request of Cypress, use its commercially reasonable efforts to keep such
registration statement effective for a period of up to one hundred twenty (120)
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days or, if earlier, until the distribution contemplated in the Registration
Statement has been completed; provided, however, that (i) such 120-day period
shall be extended for a period of time equal to the period Cypress refrains from
selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of Simtek; and (ii) in the
case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, subject to compliance
with applicable SEC rules, such 120-day period shall be extended for up to
ninety (90) days, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold;
(b) 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 securities covered by such
registration statement;
(c) furnish to Cypress such numbers of copies (or an electronic
copy) of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by it;
(d) use its commercially reasonable 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 Cypress; provided that Simtek 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,
unless Simtek is already subject to service in such jurisdiction;
(e) 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. Cypress shall
also enter into and perform its obligations under such an agreement;
(f) cause all such Registrable Securities registered pursuant to
this Agreement hereunder to be listed on a national securities exchange or
trading system and each securities exchange and trading system on which similar
securities issued by Simtek are then listed;
(g) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration;
(i) use its commercially reasonable efforts to furnish, at the
request of Cypress pursuant to this Section 2, on the date on which such
Registrable Securities are sold to the underwriter, (i) an opinion, dated such
date, of the counsel representing Simtek 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 (ii) a "comfort"
letter dated such date, from the independent certified public accountants of
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Simtek, 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.
2.3. Furnish Information. (a) It shall be a condition precedent to the
obligations of Simtek to take any action pursuant to this Section 2 with respect
to the Registrable Securities of Cypress that Cypress shall furnish to Simtek
such information regarding itself, the Registrable Securities and other Simtek
securities held by it and its Affiliates, and the intended method of disposition
of such securities as shall be reasonably required to effect the registration of
Cypress's Registrable Securities.
2.4. Expenses of Simtek Registration. Simtek shall bear and pay all
expenses incurred by it in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 2.1 hereof (which right may be assigned as provided in
Section 2.10 hereof), including (without limitation) all registration, filing,
and qualification fees, printers and accounting fees relating or apportionable
thereto. Cypress shall bear and pay all expenses incurred by it in connection
with the registrations pursuant to Section 2.1 hereof (which right may be
assigned as provided in Section 2.10 hereof), including (without limitation) all
fees and disbursements of its counsel.
2.5. Underwriting Requirements. In connection with any offering
involving an underwriting of shares of Simtek's capital stock pursuant to
Section 2.1, Simtek shall not be required to include Cypress's securities in
such underwriting unless it accepts the terms of the underwriting as agreed upon
between Simtek and its underwriters, and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by Simtek. If the total number of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the amount of securities to be sold other than by Simtek that
the underwriters determine in their sole and absolute discretion is compatible
with the success of the offering, then Simtek shall be required to include in
the offering only that number of such securities, including Registrable
Securities, which the underwriters and Simtek determine in their sole and
absolute discretion will not jeopardize the success of the offering. In no event
shall any Registrable Securities be excluded from such offering unless all other
stockholders' securities have been first excluded.
2.6. Delay of Registration. Cypress shall have no right to obtain or
seek an injunction restraining or otherwise delaying any registration pursuant
to this Agreement as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 2.
2.7. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 2:
(a) To the extent permitted by law, Simtek will indemnify and hold
harmless Cypress and its officers, directors, stockholders, legal counsel and
accountants, any underwriter (as defined in the Securities Act) for Cypress and
each person, if any, who controls Cypress or underwriter within the meaning of
the Securities Act or the Exchange Act, against any Violation and Simtek will
pay to each of Cypress and its underwriter, controlling person or other
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aforementioned person, any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability, or action as such expenses are incurred; provided, however, that the
indemnity agreement contained in this subsection 2.7(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or action
if such settlement is effected without the consent of Simtek (which consent
shall not be unreasonably withheld), nor shall Simtek be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by Cypress or its underwriter, controlling person or
other aforementioned person.
(b) To the extent permitted by law, Cypress will indemnify and
hold harmless Simtek, each of its directors, each of its officers who has signed
the registration statement, each person, if any, who controls Simtek within the
meaning of the Securities Act, legal counsel and accountants for Simtek, any
underwriter, and any controlling person of any such underwriter, against any
losses, claims, damages, or liabilities to which any of the foregoing persons
may become subject, under the Securities Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by Cypress
expressly for use in connection with such registration; and Cypress will pay,
any legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 2.7(b), in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection 2.7(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Cypress (which consent shall not be unreasonably withheld); provided, further,
that, in no event shall any indemnity under this subsection 2.7(b) exceed the
net proceeds from the offering received by Cypress, except in the case of fraud
or willful misconduct by Cypress.
(c) Promptly after receipt by an indemnified party under this
Section 2.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party (together with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying 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. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
2.7, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.7.
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(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) Cypress
or any controlling person of Cypress makes a claim for indemnification pursuant
to this Section 2.7 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 2.7 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of Cypress or any such
controlling person in circumstances for which indemnification is provided under
this Section 2.7, then, and in each such case, Simtek and Cypress will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions that resulted in such loss, liability, claim, damage or expense as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission; provided however,
that, in any such case, (I) Cypress will not be required to contribute any
amount in excess of the public offering price of all such Registrable Securities
offered and sold by Cypress pursuant to such registration statement, and (II) no
person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any
person or entity who was not guilty of such fraudulent misrepresentation;
provided further, that in no event shall Cypress's liability pursuant to this
Section 2.7(d), when combined with the amounts paid or payable by Cypress
pursuant to Section 2.7(b), exceed the proceeds from the offering (net of any
underwriting discounts or commissions) received by Cypress, except in the case
of willful fraud by Cypress.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) Unless otherwise superceded by an underwriting agreement
entered into in connection with the underwritten public offering, the
obligations of Simtek and Cypress under this Section 2.7 shall survive the
completion of any offering of Registrable Securities in a registration statement
under this Section 2, and otherwise and shall survive the termination of this
Agreement.
2.8. Reports Under Exchange Act. With a view to making available to
Cypress the benefits of SEC Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit Cypress to
sell Registrable Securities of Simtek to the public without registration or
pursuant to a registration on Form S-3, Simtek agrees to:
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(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after the date hereof so
long as Simtek is subject to the periodic reporting requirements under Sections
13 or 15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports and other
documents required of Simtek under the Securities Act and the Exchange Act; and
(c) furnish to Cypress, so long as Cypress owns any Registrable
Securities, forthwith upon reasonable request (i) a written statement by Simtek
that it has complied with the reporting requirements of SEC Rule 144, the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-3 (at any time after it so
qualifies) or a statement that it has not so complied, (ii) a copy of the most
recent annual or quarterly report of Simtek and such other reports and documents
so filed by Simtek, and (iii) such other information as may be reasonably
requested in availing Cypress of any rule or regulation of the SEC which permits
the selling of any such securities without registration or pursuant to such
form.
2.9. Form S-3 Registration.
(a) In case Simtek shall receive from Cypress a written request or
requests that Simtek use its commercially reasonable efforts to effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by Cypress, Simtek
will as soon as practicable, use its commercially reasonable efforts to 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 Cypress's Registrable Securities as are specified in such
request; provided, however, that Simtek shall not be obligated to effect any
such registration, qualification or compliance, pursuant to this Section 2.9:
(1) if Form S-3 is not then available for such offering by Cypress (or Simtek is
not eligible to use such Form S-3 for such offering); (2) if Cypress, together
with the holders of any other securities of Simtek 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 $2 million; (3) if Simtek shall furnish to Cypress
a certificate signed by the Chief Executive Officer of Simtek stating that in
the good faith judgment of the Board of Directors of Simtek, it would be
materially detrimental to Simtek and its stockholders for such Form S-3
Registration to be effected at such time, in which event Simtek shall have the
right to defer the filing of the Form S-3 registration statement for a period of
not more than sixty (60) days after receipt of the request of Cypress under this
Section 2.9; provided, however, that Simtek shall not utilize this right more
than once in any twelve month period and provided further that Simtek shall not
register any securities for the account of itself or any other stockholder
during such sixty (60) day period (other than a registration relating solely to
the sale of securities of participants in a Simtek stock plan, a registration
relating to a corporate reorganization or transaction under Rule 145 of the
Securities Act, a registration on any form that does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities, or a registration in
which the only Common Stock being registered is Common Stock issuable upon
conversion of debt securities that are also being registered); (4) if Simtek
has, within the twelve (12) month period preceding the date of such request,
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already effected two registrations on Form S-3 for Cypress pursuant to this
Section 2.9; or (5) in any particular jurisdiction in which Simtek 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; or (6)
during the period ending one hundred eighty (180) days after the effective date
of a registration statement subject to Section 2.1 hereof.
Subject to the foregoing, Simtek shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request of Cypress.
Simtek shall bear and pay all expenses incurred by it in connection with any
registration, filing or qualification of Registrable Securities with respect to
the registrations pursuant to Section 2.9 hereof (which right may be assigned as
provided in Section 2.10 hereof), including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto. Cypress shall bear and pay all expenses
incurred by it in connection with the registrations pursuant to Section 2.9
hereof (which right may be assigned as provided in Section 2.10 hereof),
including (without limitation) all fees and disbursements of its counsel.
(b) If Cypress intends to distribute the Registrable Securities
covered by its request by means of an underwriting, it shall so advise Simtek as
part of its request made pursuant to this Section 2.9, and Simtek shall include
such information in the written notice referred to in Section 2.9(a).
2.10. Assignment of Registration Rights. The rights to cause Simtek to
register Registrable Securities pursuant to this Section 2 may be assigned (but
only with all related obligations) by Cypress to a transferee or assignee of
such securities that (i) is an Affiliate of Cypress, or (ii) after such
assignment or transfer, holds at least 500,000 shares of Registrable Securities
(subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations), provided: (a) Simtek is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; (b) such transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Securities Act. For the
purposes of determining the number of shares of Registrable Securities held by a
transferee or assignee, the holdings of transferee or assignee (i) that is a
subsidiary, parent or 10% or more stockholder of Cypress, or (ii) that is an
Affiliate of Cypress shall be aggregated together and with those of Cypress;
provided that all assignees and transferees who would not qualify individually
for assignment of registration rights shall have a single attorney in fact for
the purpose of exercising any rights, receiving notices or taking any action
under this Section 2.
2.11. Termination of Registration Rights. The rights set forth in this
Section 2 shall terminate on the earliest to occur of (i) the liquidation of
Simtek, (ii) such time as the Registrable Securities (together with any
Affiliate of the holder with whom the holder must aggregate its sales under SEC
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Rule 144) could be sold without restriction under SEC Rule 144 within a ninety
(90) day period, or (iii) such time as all of the Registrable Securities have
been publicly sold.
3. Miscellaneous.
3.1. Transfers, Successors and Assigns. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
3.2. Governing Law. This Agreement shall be governed by and
construed in accordance with the State of California as to matters within the
scope thereof, and as to all other matters shall be governed by and construed in
accordance with the internal laws of the State of California, without regard to
its principles of conflicts of laws.
3.3. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may also
be executed and delivered by facsimile signature and in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5. Notices. All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be notified, (b) when sent by
confirmed electronic mail or facsimile if sent during normal business hours of
the recipient, and if not so confirmed, then on the next business day, (c) five
(5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) business day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the
respective parties at their address as set forth below:
Notices to be given to Cypress will be addressed to:
Cypress Semiconductor Corporation
000 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Chief Financial Officer and General Counsel
Facsimile: (000) 000-0000
Attention: Senior Vice President, Memory Products Division
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With a copy to:
Cypress Semiconductor Corporation
000 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Chief Financial Officer and General Counsel
Facsimile: (000) 000-0000.
Notices to be given to Simtek will be addressed to:
Simtek Corporation
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx
3.6. Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of Simtek and Cypress. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon Simtek and
Cypress.
3.7. Severability. The invalidity of unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
3.8. Aggregation of Stock. All shares of Registrable Securities
held or acquired by Affiliates shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
3.9. Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with respect to the
subject matter hereof, and any other written or oral agreement relating to the
subject matter hereof existing between the parties are expressly canceled.
3.11 Transfers of Rights. Subject to Section 2.10, Cypress hereby
agrees that it will not, and may not, assign any of its rights and obligations
hereunder, unless such rights and obligations are assigned by Cypress to (a) any
person or entity to which all of the Registrable Securities are transferred by
Cypress, or (b) to any Affiliate of Cypress; provided that such assignment of
rights shall be contingent upon the transferee providing a written instrument to
Simtek notifying Simtek of such transfer and assignment and agreeing in writing
to be bound by the terms of this Agreement.
3.12 Dispute Resolution. Any unresolved controversy or claim
arising out of or relating to this Agreement shall be resolved pursuant to the
terms of the Development Agreement.
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3.13 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any party under this Agreement, upon any
breach or default of any other party under this Agreement, shall impair any such
right, power or remedy of such non-breaching or non-defaulting party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
FOR SIMTEK FOR CYPRESS
Simtek Corporation Cypress Semiconductor Corporation
Signed: /S/ XXXXXX XXXXXXXXX Signed: /S/ XXXXXX XXXXXXXX
----------------------------- ---------------------------------
By: Xxxxxx Xxxxxxxxx By: Xxxxxx Xxxxxxxx
----------------------------- ---------------------------------
Title: CEO Title: V.P. - NV Memory Business
----------------------------- ---------------------------------
Date: March 24, 2006 Date: March 24, 2006
----------------------------- ---------------------------------
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