Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 81 461K
2: EX-3.1 Restated Articles of Incorporation 18 60K
3: EX-3.3 Registrant's Bylaws 39 131K
4: EX-3.4 Certificate of Amendment of the Bylaws 2± 9K
5: EX-10.1 Registrant's 1990 Stock Option Plan 28 95K
9: EX-10.10 Second Amended Investors Rights Agreement 22 86K
10: EX-10.11 Form of Indemnification Agreement 10 50K
11: EX-10.12 Pericom Technology Agreement 28 80K
12: EX-10.13 Harris Agreement 21 126K
6: EX-10.2 Registrant's 1995 Stock Option Plan 9 41K
7: EX-10.3 Registrant's 1997 Employee Stock Purchase Plan 15 62K
8: EX-10.4 Lease Dated November 29, 1993 67± 254K
13: EX-11.1 Computation of Net Income Per Share 1 8K
14: EX-27.1 Financial Data Schedule 2 10K
EX-10.10 — Second Amended Investors Rights Agreement
Exhibit Table of Contents
EXHIBIT 10.10
EXHIBIT C
SECOND AMENDED INVESTORS RIGHTS AGREEMENT
THIS SECOND AMENDED INVESTORS RIGHTS AGREEMENT is entered into as of
the 21st day of July, 1993 by and among Pioneer Semiconductor Corporation, a
California corporation (the "Company"), those existing holders of Series A
Preferred Stock of the Company (the "Series A Investors"), those existing
holders of Series B Preferred Stock of the Company (the "Series B Investors"),
and those holders of Series C Preferred Stock of the Company set forth in
Exhibit A hereto (the "Series C Investors," and collectively with the Series A
Investors and the Series B Investors, the "Investors").
R E C I T A L S
1. The Company and the Series C Investors are parties to that
certain Series C Preferred Stock Purchase Agreement of even date herewith (the
"Series C Agreement"), pursuant to which the Series C Investors purchased from
the Company shares of its Series C Preferred Stock.
2. As consideration for the obligations of the Series C Investors
under the Series C Agreement, the Company wishes to enter into this Agreement to
provide the Series C Investors certain registration, first refusal and
information rights.
3. The Company, the Series A Investors and the Series B Investors
are parties to that certain First Amended Investors Rights Agreement, dated as
of December 30, 1991 (the "Amended Agreement"), pursuant to which the Company
granted the Series A Investors and the Series B Investors similar registration,
first refusal and information rights. The Series A Investors and the Series B
Investors wish to become party to this Agreement and to replace the Amended
Agreement with this Agreement so as to have consistency between the Investors as
to such registration, first refusal and information rights.
NOW THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, the parties agree as follows:
A G R E E M E N T
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) The terms "register," "registered" and "registration" refer to
a 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;
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(b) The term "Registrable Securities" means: (i) any Common Stock
issued or to be issued pursuant to conversion of the Series A Preferred Stock
(the "Series A Stock"), Series B Preferred Stock (the "Series B Stock") and
Series C Preferred Stock ("Series C Stock") issued by the Company to Investors;
and (ii) any other Common Stock issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of such Series A Stock, Series
B Stock and Series C Stock or the shares of Common Stock issued pursuant to
conversion of said Series A Stock, Series B Stock and Series C Stock; provided,
however, that shares of Common Stock or other securities shall only be treated
as Registrable Securities (A) if and so long as they have not been sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction pursuant to an effective registration statement or
pursuant to SEC Rule 144, or (B) if in the opinion of counsel to the Company
they may be sold in a transaction exempt from the prospectus delivery
requirements of the Securities Act so that all transfer restrictions and legends
with respect thereto are removed from the consummation of such sale;
(c) The term "Holder" means any holder of outstanding Registrable
Securities who is (i) an Investor; or (ii) any person to which the registration
rights provided for in this Agreement shall have been properly assigned in
accordance with Section 12 hereof;
(d) The term "Initiating Holders" means any Holder or Holders making a
request for registration pursuant to the provisions of Section 2 hereof; and
(e) The term "Substantial Amount of Registrable Securities" means at
least fifty percent (50%) of the Registrable Securities.
(f) The term "Securities Act" shall mean 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.
(g) The term "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
2. REQUESTED REGISTRATION.
(a) REQUESTED REGISTRATION. In the event that the Company, prior to
such time as the Company has effected two (2) registrations pursuant to this
Section 2 and such registrations have been declared or ordered effective, the
Company shall receive from the Holders of a Substantial Amount of Registrable
Securities a written request that the Company effect any registration,
qualification or compliance with respect to all or a part of the Registrable
Securities with an expected aggregate offering price, net of underwriter's
discounts and commissions, to the public of at least $5,000,000, the Company
will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
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(ii) as soon as practicable, use its diligent best efforts to
effect all such registrations, qualifications and compliances (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under the applicable blue sky or other
state securities laws and appropriate compliance with exemptive regulations
issued under the Securities Act and any other governmental requirements or
regulations) 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 notice given within fifteen (15) days
after receipt of such written notice from the Company; provided that the Company
shall not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section 2:
(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) Prior to the earlier of June 30, 1995 or six (6) months
following the effective date of the registration statement pertaining to the
first underwritten public offering of securities of the Company for its own
account; or
(C) If at the time of the request to register Registrable
Securities the Company gives notice within thirty (30) days of such request that
it is engaged or has fixed plans to engage within sixty (60) days of the time of
the request in an initial firmly underwritten registered public offering as to
which the Holders may include Registrable Securities pursuant to Sections 2 or
3.
Subject to the foregoing provisions, the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders.
(a) UNDERWRITING. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company and shall designate the underwriter or
underwriters to be employed in connection therewith (who shall be selected by
the majority in interest of the Initiating Holders with the approval of the
Company, which approval shall not be unreasonably withheld) as a part of their
request made pursuant to Section 2(a) and the Company shall include such
information in the written notice referred to in Section 2(a)(i). In such
event, the right of any Holder to registration pursuant to this Section 2 shall
be conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders
and such Holder) to the extent provided herein. The Company shall (together
with all Holders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders. Notwithstanding any other provision of this
Section 2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
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Registrable Securities that would otherwise be registered and underwritten
pursuant hereto, and the number of shares included in the registration and
underwriting shall be allocated among the Holders of Registrable Securities
requesting registration in proportion, as nearly as practicable, to the total
number of Registrable Securities held by such Holders at the time of filing of
the registration statement. No registrable Securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration.
If any Holder disapproves of the terms of the underwriting, such
person may elect to withdraw therefrom by written notice to the Company, the
underwriter and the Initiating Holders. The Registrable Securities and/or other
securities so withdrawn from such underwriting shall also be withdrawn from such
registration; provided that in the event that the withdrawal of a Holder results
in an anticipated aggregate offering price to the public of less than five
million dollars ($5,000,000), the Company shall no longer be required to effect
such registration pursuant to this Section 2.
If the underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account or the account of others in such registration if the underwriter so
agrees and if the number of Registrable Securities which would otherwise have
been included in such registration and underwriting will not thereby be limited.
(c) DELAY OF REGISTRATION. If the Company shall furnish to the
Initiating Holders a certificate signed by the President of the Company stating
that, in the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company and its shareholders for such
registration statement to be filed on or before the date filing would be
required and it is therefore essential to defer the filing of such registration
statement, then the Company may direct that such request for registration be
delayed for a period not in excess of one hundred twenty (120) days such right
to delay a request to be exercised by the Company not more than twice in any
one-year period.
3. COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any time or from time to time, the
Company shall determine to register any of its Common Stock, either for its own
account or the account of a security holder or holders (other than the Holders),
other than a registration relating solely to employee stock option or purchase
plans, relating solely to Rule 145 transaction or a registration form which does
not include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable
Securities, the Company will:
(i) promptly give to each Holder written notice thereof which
shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other state
securities laws); and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within twenty (20)
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days after receipt of such written notice from the Company, by any Holder or
Holders, except as set forth in Section 3(b) below.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 3(a)(i). In such event the right of any Holder to
registration pursuant to this Section 3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 3, if the
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the underwriter may limit the number of
Registrable Securities to be included in the registration and underwriting on a
pro rata basis based on the total number of the Registrable Securities held by
the Holders and based on the total number of securities (other than Registrable
Securities) entitled to registration held by the Holders and by other persons to
organizations selling securities pursuant to registration rights granted them by
the Company, provided that in connection with any registered public offering
other than the initial such offering, no such reduction may reduce the
securities being offered by the Holders to less than 30% of the total number of
securities included in such registration and underwriting. The Company shall
advise all Holders of Registrable Securities which would otherwise be registered
and underwritten pursuant hereto of any such limitations, and the number of
shares of Registrable Securities that may be included in the registration. If
any Holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the underwriter. The
Registrable Securities so withdrawn shall also be withdrawn from registration.
4. EXPENSES OF REGISTRATION. All expenses incurred in connection with the
registration, qualification or compliance pursuant to Section 2 and any
registration, qualification or compliance pursuant to Section 3, including
without limitation, all registration, filing and qualification fees, printing
expenses, fees and disbursements of counsel for the Company, expenses of any
special audits incidental to or required by such registration and the fees and
disbursements of one counsel retained by the Holders of Registrable Securities
covered by such registration, qualification or compliance shall be borne by the
Company, except that:
(a) The Company shall not be required to pay for expenses of any
registration proceeding begun pursuant to Section 2, the request of which has
been subsequently withdrawn by the Initiating Holders, in which case, such
expenses shall be borne by the Holders of securities (including Registrable
Securities) requesting or causing such withdrawal; and
(b) The Company shall not be required to pay underwriters' discounts,
commissions, or stock transfer taxes relating to Registrable Securities.
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5. REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder participating therein advised in writing as to
the initiation of each registration, qualification and compliance and as to the
completion thereof. At its expense (except as otherwise provided in Section 4
above) the Company will:
(a) keep such registration, qualification or compliance pursuant to
Sections 2 or 3 effective for a period of one hundred twenty (120) days or until
the Holder or Holders have completed the distribution described in the
registration statement relating thereto, whichever first occurs;
(b) furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request;
(c) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statements 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;
(d) notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto covered
by such registration statement 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; and
(e) furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statements 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 underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accounts to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
6. INDEMNIFICATION.
(a) The Company will indemnify each Holder of Registrable Securities,
each of its officers and directors, and each person controlling such Holder,
with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, against all claims, losses, damages, costs,
expenses and liabilities whatsoever (or actions in respect thereof) arising out
of or based on (i) any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement, prospectus,
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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 in the light of the circumstances under
which they were made, or (ii) any violation by the Company of the Securities Act
or any state securities law or of any rule or regulation promulgated under the
Securities Act or any state securities law applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance, and will reimburse each such
Holder, each of its officers and directors, and each person controlling such
Holder, for any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, except that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability, or action 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 any Holder and stated
to be specifically for use therein or furnished by any Holder to the Company in
response to a request by the Company stating specifically that such information,
and except that 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 on file with the Commission
at the time the registration statement becomes effective or in the amended
prospectus filed with the Commission pursuant to Rule 424(b) (the "Final
Prospectus"), such indemnity agreement shall not inure to the benefit of any
Holder 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 action is required by the Securities Act.
(b) Each Holder will, if Registrable Securities held by or issuable to
such Holder are included in the securities to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each legal counsel and independent accountant of the
Company, each underwriter, if any, of the Company's securities covered by such
registration statement, each person who controls the Company within the meaning
of the Securities Act, and each other Holder, each of such other Holder's
officers and directors and each person controlling such other Holder, against
all claims, losses, damages, costs, expenses and liabilities whatsoever (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, 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 in light of the
circumstances under which they were made, and will reimburse the Company, such
other Holders, such directors, officers, persons or underwriters for any legal
or any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, cost, expense, 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) is 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 Holder and stated to be
specifically for use therein or furnished by the Holder to the Company in
response to a request by the Company stating specifically that
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such information will be used by the Company therein, except that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statements (or alleged untrue statement) or omission (or alleged
omission) made in the preliminary prospectus but eliminated or remedied in the
Final Prospectus, such indemnity agreement shall not inure to the benefit of (i)
the Company and (ii) any underwriter or any Holder, if there is no 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
action is required by the Securities Act.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld). The failure of any Indemnified Party to give notice as provided
herein shall relieve the Indemnifying Party of its obligations under this
Agreement only to the extent that such failure to give notice shall materially
adversely prejudice 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, 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 to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. If any such Indemnified Party shall have been advised by counsel
chosen by it that there may be one or more legal defenses available to such
Indemnified Party that are different from or additional to those available to
the Indemnifying Party, the Indemnifying Party shall not have the right to
assume the defense of such action on behalf of such Indemnified Party and will
reimburse such Indemnified Party and any person controlling such Indemnified
Party for the reasonable fees and expenses of any counsel retained by the
Indemnified Party, it being understood that the Indemnifying Party shall not, in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys for such Indemnified Party or controlling person, which firm shall be
designated in writing by the Indemnified Party to the Indemnifying Party.
7. INFORMATION BY HOLDER. The Holder or Holders or Registrable Securities
included in any registration shall furnish to the Company such information
regarding such Holder or Holders and the distribution proposed by such Holder or
Holders as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
8. SALE WITHOUT REGISTRATION. If at the time of any transfer of any
Registrable Securities, such Registrable Securities shall not be registered
under the Securities Act, the Company may require, as a condition of allowing
such transfer, that the Holder or transferee furnish to the Company (a) such
information as is necessary in order to establish that such transfer may be made
without registration under the Securities Act; and (b) at the expense of the
Holder or transferee, an opinion by legal counsel designated by such Holder or
transferee and reasonably satisfactory in form and substance to the Company, to
the effect
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that such transfer may be made without registration under the Securities Act,
except that nothing contained in this Section 8 shall relieve the Company from
complying with any request for registration, qualification or compliance made
pursuant to the other provisions of this Agreement. For the purpose of this
Section 8, Registrable Securities shall also be deemed to include any Series A
Stock, Series B Stock or Series C Stock held by a Holder.
9. TERMINATION OF COMPANY'S OBLIGATIONS. The Company shall have no
obligations pursuant to Section 2, 3, or 13 hereof with respect to any request
or request made by any Holder after September 30, 2001.
10. RULE 144 REPORTING. With a view to making available to the Holders
the benefits of certain rules and regulations of the Commission which may permit
the sale of Registrable Securities to the public without registration, the
Company agrees to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in SEC Rule 144 under the
Securities Act, at all times after ninety (90) days after the effective date of
the first registration under the Securities Act filed by the Company that
involves a sale of securities of the Company to the general public;
(b) use its best efforts to then file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Securities Exchange Act"); and
(c) take such action, including the voluntary registration of its
Common Stock under Section 3 of the Securities Exchange Act, as is necessary to
enable the Holders to utilize From S-3 for the sale of their Registrable
Securities, such action to be taken as soon as practicable after the end of the
fiscal year in which the first registration statement filed by the Company for
the offering of its securities to the general public is declared effective;
(d) furnish to any Holder, so long as such Holder owns any Registrable
Securities, forthwith upon written request a written statement by the Company
that it has complied with the reporting requirements of said Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Securities Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed by the Company as such Holder may reasonably request in
availing itself of any rule or regulation of the Commission permitting the
Holder to sell any such securities without registration.
11. STANDOFF AGREEMENT. Each Holder agrees, so long as such Holder holds
at least one percent (1%) of the Company's outstanding voting equity securities,
in connection with the Company's initial public offering of the Company's
securities, upon request of the Company or the underwriters managing any
underwritten offering of the Company's securities, not to sell, make any short
sale of, loan, grant any option for the purchase of, or otherwise dispose of any
Registrable Securities (other than those included in the registration) without
the prior written consent of the Company or such underwriters, as
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the case may be, for such period of time (not to exceed one hundred eighty (180)
days) from the effective date of such registration as may be requested by the
underwriter.
12. TRANSFER OF REGISTRATION RIGHTS.
(a) Except as otherwise provided herein, the rights to cause the
Company to register securities granted by the Company under Sections 2, 3 and 13
may be assigned or otherwise conveyed to a transferee or assignee of Registrable
Securities, who shall be considered a "Holder" for purposes of this Agreement;
provided that (i) such transfer is effected in accordance with applicable
federal and state securities laws, (ii) such transferee or assignee becomes a
party to this Agreement or agrees in writing to be subject to the terms hereof
to the same extent as if he were an original purchaser hereunder and (iii) such
transferee or assignee (A) is a wholly owned subsidiary or constituent partner
(including limited partners) or affiliate of the transferring Holder, or (B)
acquires at least one hundred thousand (100,000) shares of Series A Stock,
Series B Stock or Series C Stock or an equivalent amount of Registrable
Securities issued upon conversion thereof and, provided further, that the
Company is given written notice by such Holder at the time of or within a
reasonable time after said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
registration rights are being assigned.
13. FORM S-3 REGISTRATION. In case the Company shall receive from any
Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 (or any substantially equivalent registration form
under the Securities Act subsequently adopted by the Commission that permits
inclusion or incorporation by reference to other documents filed by the Company
with the Commission) and any related qualification or compliance with respect to
all or a part of the Registrable Securities owned by such Holder or Holders, the
Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) as soon as practicable, 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 Company, except
that the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 13: (1) if Form S-3 is not
available for such offering by the Holders; (2) if the Holders, together with
the holders of any other securities of the Company 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
and commissions) of less than $500,000; (3) if the Company shall furnish to the
Holders a certificate signed by the President of the Company stating that, in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such Form S-3
registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than 60 days after receipt of the request of the Holder or
10
Holders under this Section 13, except that the Company shall not utilize this
right more than once in any twelve (12) month period; (4) if the Company has
already effected one registration on Form S-3 for the Holders during the
immediately preceding six (6) month period; or (5) in any particular
jurisdiction in which the Company 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.
Subject to the foregoing, the Company 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 or requests
of the Holders. All expenses incurred in connection with a registration
requested pursuant to this Section 13, including (without limitation) all
registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
shall be borne pro rata by the Holder or Holders participating in the Form S-3
registration. Registrations effected pursuant to this Section 13 shall not be
counted as demands for registration or registrations effected pursuant to
Section 2 or 3, respectively.
14. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date hereof, the Company, except as provided in Section 15 below, shall not,
without the prior written consent of Holders owning more than 50% of the
outstanding Series A Stock, 50% of the outstanding Series B Stock, 50% of the
outstanding shares of Series C Stock, an equivalent amount of Registrable
Securities issued upon conversion thereof, or any combination with respect
thereto, enter into any agreement with any holder or prospective holder of any
securities of the Company which would allow such holder or prospective holder of
any securities of the Company to include such securities in any registration
filed under Section 2 hereof, unless (anything in subsection 2(b) to the
contrary notwithstanding) under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of his securities will not diminish the amount of
Registrable Securities which are included.
15. ADDITIONAL PURCHASERS. Notwithstanding Section 14 above, the Company
shall have the right to cause those persons acquiring shares of Series C Stock
from the Company after the date hereof ("Additional Purchasers") to become
parties hereto upon the purchase of such Series C Stock and to be entitled to
exercise all rights and privileges granted to the Purchasers hereunder.
16. RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES.
(a) RIGHT OF FIRST REFUSAL. The Company hereby grants to each Holder
the right of first refusal to purchase, pro rata, all (or any part) of New
Securities (as defined in this Section 16) that the Company may, from time to
time propose to sell and issue. Such Holder's pro rata share, for purposes of
this right of first refusal, is the ratio, the numerator of which is the number
of shares of Common Stock then owned or issuable upon conversion of the Series A
Stock, Series B Stock or Series C Stock of the Company then owned by such
Holder, and the denominator of which is the total number of shares of Common
Stock outstanding immediately prior to the issuance of the New Securities,
assuming full conversion of all outstanding shares of Series A Stock, Series B
Stock and Series C Stock of the Company. This right of first refusal shall be
subject to the following provisions listed below.
11
(b) "New Securities" shall mean any capital stock of the Company,
whether now authorized or not, and rights, options, or warrants to purchase said
capital stock, and securities of any type whatsoever that are, or may become,
convertible into said capital stock; provided, however, that "New Securities"
does not include (i) securities issuable upon conversion of or with respect to
Series A Stock, Series B Stock and Series C Stock; (ii) securities issued
pursuant to the acquisition of another corporation by the Company by merger,
purchase or substantially all of the assets, or other reorganization whereby the
Company owns more than fifty percent (50%) of the voting power of such
corporation; (iii) shares of the Company's Common Stock (or related options)
issued to employees, officers or consultants of the Company pursuant to any
employee stock offering, plan, or arrangement approved by the Board of
Directors; (iv) shares of the Company's Common Stock, Series A Stock, Series B
Stock or Series C Stock issued in connection with any stock split, stock
dividend, or similar recapitalization by the Company; (v) those shares of Series
C Stock to be issued to the Additional Purchasers; or (vi) securities issued
pursuant to equipment or debt financing or leases which are approved by the
Company's Board of Directors.
(c) In the event that the Company proposes to undertake an issuance of
New Securities, it shall give each Holder written notice of its intention,
describing the type of New Securities, the price, and the general terms upon
which the Company proposes to issue the same. Each Holder shall have twenty
(20) days from the date of mailing of any such notice to agree to purchase up to
its full pro rata share of such New Securities for the price and upon the
general terms specified in the notice by giving written notice to the Company
and stating therein the quantity of New Securities to be purchased.
(d) In the event that Holders fail to exercise in full the right of
first refusal within said twenty (20) day period the Company shall have ninety
(90) days thereafter to sell or enter into an agreement providing for the
closing of the sale of the New Securities respecting which the Holders' rights
were not exercised within thirty (30) days of such agreement at a price and upon
general terms no more favorable to the purchasers thereof than specified in the
Company's notice. In the event the Company has not sold, or entered into an
agreement for the sale of the New Securities within such ninety (90) day period,
the Company shall not thereafter issue or sell any New Securities, without first
offering such securities to the Holders in the manner provided above.
(e) The right of first refusal granted under this Agreement shall not
apply to and shall expire upon the first closing of the first firmly
underwritten public offering of Common Stock of the Company that is pursuant to
a registration statement filed with, and declared effective by, the Commission
under the Securities Act, covering the offer and sale of Common Stock to the
public at a per share price (prior to underwriter commissions and expenses) of
at least three dollars ($3.00) and at an aggregate offering price (before
deduction for underwriter commissions and expenses) of not less than ten million
dollars ($10,000,000) (the "Initial Public Offering").
(f) This right of first refusal is assignable only to an affiliate of
a Holder or in connection with a sale or transfer of Registrable Securities.
12
17. FINANCIAL STATEMENTS.
(A) ANNUAL REPORT. For fiscal years ending after the Closing Date, the
Company agrees to deliver to each Holder:
(i) as soon as practicable after the end of each fiscal year, and
in any event within ninety (90) days thereafter, a balance sheet of the Company
as at the end of such fiscal year and a statement of operations and a statement
of sources and application of funds of the Company for such year, prepared in
accordance with generally accepted accounting principles consistently applied
and setting forth in each case in comparative form the figures for the two (2)
previous fiscal years, all in reasonable detail and audited by independent
public accountants selected by the Company; and
(ii) within forty-five (45) days after the end of each of the
first three quarters of each fiscal year, an unaudited consolidated profit or
loss statement for such fiscal quarter and an unaudited balance sheet as of the
end of such fiscal quarter.
(B) ANNUAL PLAN. Within ten (10) days of adoption by the Board of
Directors but not later than the beginning of each fiscal year of the Company,
the Company shall submit to each Holder an annual plan for such year which shall
include quarterly capital and operating expense budgets, cash flow statements,
manpower projections, projected balance sheets, profit and loss projections and
sales projections for each month and for the end of such year itemized in such
detail as the Board of Directors may reasonably determine. Approval of such
budgets, statements and projections shall be required by a majority of the Board
of Directors. If the annual plan is modified by the Board of Directors to
reflect changes as a result of operating results and other events that occur
during the year covered by the annual plan, copies of such modification shall be
promptly submitted to each Holder.
(C) TERMINATION OF REPORTS AND RIGHTS. The Company shall deliver the
reports and give the rights specified in this Section 17 to each Holder until
the earlier of (i) the closing of the Initial Public Offering, or (ii) the date
on which the total number of shares of Series A Stock, Series B Stock or Series
C Stock then held by such Holder (including shares of Common Stock obtained upon
conversion thereof) represents less than 500,000 shares of Series A Stock,
Series B Stock or Series C Stock, at which time the Company's obligation to
deliver such reports or give such rights to such Holder shall terminate.
(D) ASSIGNMENT OF RIGHTS TO INFORMATION. The rights granted pursuant
to this Section 17 may not be assigned or otherwise conveyed by any Holder or by
any subsequent transferee of any such rights without the written consent of the
Company, which consent shall not be unreasonably withheld; provided that the
Company may refuse such written consent if the proposed transferee is a
competitor of the Company as determined by the Company's Board of Directors; and
provided further, that no such written consent shall be required if the transfer
is made to a party who is not a competitor of the Company and who is a parent,
subsidiary, affiliate, partner or group member of any Investor.
13
(E) CONFIDENTIALITY. Each Holder agrees that it will keep
confidential and will not disclose or divulge any confidential, proprietary or
secret information which such Holder may obtain from the Company, and which the
Company has prominently marked "Confidential", "Proprietary" or "Secret" or has
otherwise identified as being such, pursuant to financial statements, reports
and other materials submitted by the Company as required hereunder unless such
information is or become known to the Holder from a source other than the
Company or is or becomes publicly known, or unless the Company gives its written
consent to the Holder's release of such information, except that no such written
consent shall be required (and Holder shall be free to release such information)
if such information is to be provided to a Holder's counsel or accountant, or to
an officer, director or partner of a Holder, provided that the Holder shall
inform the recipient of the confidential nature of such information, and shall
instruct the recipient to treat the information as confidential.
18. MISCELLANEOUS.
(A) GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
(B) 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 whose rights or obligations hereunder are affected by such
amendments.
(C) NOTICES. Except as otherwise provided, all notices and other
communications required or permitted hereunder shall be in writing and shall be
mailed by first class mail, postage prepaid, addressed (a) if to the Holder, at
each Holder's address set forth below its signature, or at such other address as
such Holder shall have furnished to the Company in writing, or (b) if to any
other holder of any of the Series A Stock, Series B Stock and Series C Stock or
other securities issued with respect thereto, at such address such holder shall
have furnished the Company in writing, or until any such holder furnishes an
address to the Company, then to and at the address of the last holder of such
securities who has so furnished an address to the Company, or (c) if to the
Company, at its address set forth below, or at such other address as the Company
shall have furnished to the Holders in writing.
(D) AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of the Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), with the
written consent of the Company, the holders of more than fifty percent (50%) of
the outstanding shares of Series A Stock, Series B Stock and Series C Stock
(including, for such purposes, on a proportional basis, any shares of Common
Stock into which any of the Series A Stock, Series B Stock and Series C Stock
have been converted that have not been sold to the public). Any amendment or
waiver effected in accordance with this Section shall be binding upon each
Holder, each future holder of all such securities, and the Company.
14
(E) TITLES AND SUBTITLES. The titles of the Sections and Subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
(F) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
(G) AMENDED AGREEMENT. This Agreement shall become effective and
supersede the Amended Agreement in its entirety upon the last to occur of the
following: (a) the execution and delivery of this Agreement by (i) the Company,
(ii) Series A Investors holding more than fifty percent (50%) of the Series A
Stock, (iii) Series B Investors holding more than fifty percent (50%) of the
Series B Stock, (iv) Series C Investors purchasing Series C Stock at the first
closing pursuant to the Series C Agreement; and (v) the initial issuance of
Series C Stock by the Company. At such time as the Amended Agreement is so
superseded, any rights and obligations of the Company and the Series A Investors
and Series B Investors thereunder shall be terminated and of no further force
and effect.
(H) SEVERABILITY. Should any provision of this Agreement be
determined to be illegal or unenforceable, such determination shall not affect
the remaining provisions of this Agreement.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
PIONEER SEMICONDUCTOR INVESTORS:
CORPORATION
By: /s/ Alex C. Hui
---------------------------- ---------------------------------
Alex C. Hui, President Name
Address: Address:
2343 Bering Drive _________________________________
San Jose, CA 95131 _________________________________
_________________________________
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
PIONEER SEMICONDUCTOR INVESTORS:
CORPORATION
By: /s/ Alex C. Hui /s/ ^^
---------------------------- ---------------------------------
Alex C. Hui, President Name
Address: Address:
2343 Bering Drive ^^
San Jose, CA 95131 ---------------------------------
---------------------------------
---------------------------------
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
PIONEER SEMICONDUCTOR INVESTORS:
CORPORATION
By: /s/ Alex C. Hui /s/ ^^
---------------------------- ---------------------------------
Alex C. Hui, President Name
Address: Address:
2343 Bering Drive 12-IF.261.SEC 1
San Jose, CA 95131 ---------------------------------
Tunhwa S. Road
---------------------------------
Taipei, Taiwan
---------------------------------
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
PIONEER SEMICONDUCTOR INVESTORS:
CORPORATION
By: /s/ Alex C. Hui /s/ ^^
---------------------------- ---------------------------------
Alex C. Hui, President Name
Address: Address:
2343 Bering Drive 12-IF.261.SEC 1
San Jose, CA 95131 ---------------------------------
Tunhwa S. Road
---------------------------------
Taipei, Taiwan
---------------------------------
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
PIONEER SEMICONDUCTOR CORPORATION
By: /s/ Alex C. Hui
----------------------
Alex C. Hui, President
INVESTORS:
HOLDERS OF SERIES A PREFERRED STOCK:
/s/ Chen-Yueh Chin
__________________________
Chen-Yueh Chin
/s/ Sze-Wu Hsu
__________________________
Sze-Wu Hsu
/s/ Chih-Ray Hsu
__________________________
Chih-Ray Hsu
/s/ Yu-Pu Hsu
__________________________
Yu-Pu Hsu
/s/ Koh Tong Poat
__________________________
Koh Tong Poat
/s/ Tay Kia Hong
__________________________
Tay Kia Hong
/s/ Tay Thiam Yew
__________________________
Tay Thiam Yew
20
/s/ Tay Thiang Phong
__________________________
Tay Thiang Phong
/s/ Tay Thiam Song
__________________________
Tay Thiam Song
/s/ Tay Tian Liang
__________________________
Tay Tian Liang
/s/ Jeffrey Young
__________________________
Jeffrey Young
HOLDERS OF SERIES B PREFERRED STOCK:
/s/ Yu-Pu Hsu
__________________________
Yu-Pu Hsu
/s/ Koh Tong Poat
__________________________
Koh Tong Poat
/s/ Tay Kia Hong
__________________________
Tay Kia Hong
/s/ Tay Thiam Yew
__________________________
Tay Thiam Yew
/s/ Tay Thiang Phong
__________________________
Tay Thiang Phong
/s/ Tay Thiam Song
__________________________
Tay Thiam Song
21
/s/ Tay Tian Liang
__________________________
Tay Tian Liang
/s/ Jeffrey Young
__________________________
Jeffrey Young
/s/ Chih-Fang Hsu
__________________________
Chih-Fang Hsu
22
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 9/30/01 | | 9 | | | | | None on these Dates |
| Filed on: | | 9/10/97 |
| | 6/30/95 | | 3 |
| List all Filings |
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