EXHIBIT 10.18
INTEGRATED CIRCUIT SYSTEMS, INC.
VOTING AGREEMENT
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THIS VOTING AGREEMENT (this "Agreement") is made as of May 11, 1999, by and
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among Integrated Circuit Systems, Inc., a Pennsylvania corporation (the
"Company"), each of the Persons listed on Schedule I attached hereto (the "Bain
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Stockholders"), each of the Persons listed on Schedule II attached hereto (the
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"Bear Xxxxxxx Stockholders") and each of the Persons listed on Schedule III
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attached hereto (the "Executive Stockholders"). The Bain Stockholders, the Bear
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Xxxxxxx Stockholders and the Executive Stockholders are collectively referred to
as the "Stockholders" and individually as a "Stockholder".
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WHEREAS, as of the date hereof, (i) the Bain Stockholders' and the Bear
Xxxxxxx Stockholders' shares of common stock of ICS Merger Corp., a Pennsylvania
corporation ("ICS"), will be converted into shares of the Company's Class A
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Common Stock, par value $.01 per share, Class B Common Stock, par value $.01 per
share, and Class L Common Stock, par value $.01 per share (collectively, the
"Common Stock") pursuant to a Merger Agreement, dated as of January 20, 1999,
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between ICS and the Company (as amended, the "Merger Agreement"), and (ii) the
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Executive Stockholders will acquire shares of Common Stock by exchanging
existing shares of capital stock of the Company for shares of Common Stock
pursuant to the terms of (x) the Merger Agreement and (y) Executive Stock
Agreements executed by the Company and each of the Executive Stockholders.
WHEREAS, the Company and the Stockholders desire to enter into this
Agreement for the purposes of establishing the composition of the Company's
Board of Directors (the "Board").
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NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Board of Directors.
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(a) From and after the Closing (as defined in the Merger Agreement), each
Stockholder shall vote all of his voting shares of Common Stock and any other
voting securities of the Company over which such holder has voting control and
shall take all other necessary or desirable actions within his control (whether
in his capacity as a stockholder, director, member of a board committee or
officer of the Company or otherwise, and including, without limitation,
attendance at meetings in person or by proxy for purposes of obtaining a quorum
and execution of written consents in lieu of meetings), and the Company shall
take all reasonably necessary or desirable actions within its control
(including, without limitation, calling special board and stockholder meetings),
so that:
(i) the authorized number of directors on the Board shall be
established at six (6) directors;
(ii) the following individuals shall be elected to the Board:
(A) 1 representative designated by Xxxx Capital Fund VI, L.P.;
(B) 1 representative designated by BCIP Associates II together
with BCIP Associates II-B;
(C) 1 representative designated by BCIP Trust Associates II;
(D) 1 representative designated by the Bear Xxxxxxx
Stockholders, which representative shall initially be Xxxx X. Xxxxxx;
(E) The chief executive officer of the Company; and
(F) Xxxxx X. Xxxxxx ("Xxxxxx"), so long as he continues to own
at least 50% of the Common Stock he owns on a fully diluted basis as
of the date hereof (with it being understood that at such time as the
condition in clause (F) hereof is no longer satisfied, the
Stockholders shall consider appointing a member of the Company's
management then party to an Executive Stock Agreement, an Executive
Stock Purchase Agreement, or Executive Stock and Option Agreement, in
each case executed as of the date hereof, or any other Person not
affiliated with the Bain Stockholders or the Bear Xxxxxxx
Stockholders, to fill the Board seat previously held by Xxxxxx);
(iii) the composition of the board of directors of each of the
Company's Subsidiaries (a "Sub Board") shall be as determined by majority
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vote of the Board; provided that at the request of the Bain Stockholders or
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if the Bain Stockholders otherwise designate more than one member on any
Sub Board, the composition of the Sub Board shall be the same as that of
the Board;
(iv) any committees of the Board or a Sub Board shall be created only
upon the approval of a majority of the members of the Board;
(v) the removal from the Board or a Sub Board (with or without
cause) of any representative designated hereunder by the Bain Stockholders
shall be at the Bain Stockholders' written request, but only upon such
written request and under no other circumstances (in each case, determined
on the basis of a vote of the holders of a majority of the Common Stock
held by the Bain Stockholders);
(vi) the removal from the Board or a Sub Board (with or without
cause) of any representative designated hereunder by the Bear Xxxxxxx
Stockholders shall be at the Bear Xxxxxxx Stockholders' written request,
but only upon such written request and under no other circumstances (in
each case, determined on the basis of a vote of the holders of a majority
of the Common Stock held by the Bear Xxxxxxx Stockholders); and
(vii) in the event that any representative designated hereunder by
the Bain Stockholders or the Bear Xxxxxxx Stockholders ceases to serve as a
member of the Board or a Sub Board during his term of office, the resulting
vacancy on the Board or the Sub Board shall be filled by a representative
designated by the Bain Stockholders or the Bear Xxxxxxx Stockholders, as
the case may be, as provided hereunder.
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(viii) the chief executive officer of the Company shall resign his
position as a member of the Board not later than 10 days after he ceases to
be employed by the Company as the Chief Executive Officer for any reason;
and
(ix) Xxxxxx shall resign his position as a member of the Board not
later than 10 days after he ceases to own at least 50% of the Common Stock
he owns on a fully diluted basis as of the date hereof (with it being
understood that Xxxxxx may not be removed from the Board or any Sub Board
other than pursuant to this clause (ix) or for death or disability).
(b) The Company shall pay the reasonable out-of-pocket expenses incurred
by each director in connection with attending the meetings of the Board, any Sub
Board and any committee thereof.
(c) If (and for so long as) any party fails to designate a representative
to fill a directorship pursuant to the terms of this Section 1 or a vacancy
otherwise exists, the election of a person to such directorship shall be
accomplished in accordance with the Company's or its Subsidiaries' bylaws and
applicable law; provided that the parties shall take all necessary actions to
remove such individual if the party or parties which failed (and are otherwise
entitled) to designate such director so directs; provided further that no
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affiliate of the Bain Stockholders or the Bear Xxxxxxx Stockholders shall be
appointed to fill a vacancy created by the resignation of Xxxxxx.
2. Notices. Any notice provided for in this Agreement must be in writing
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and must be personally delivered, received by certified mail, return receipt
requested, or sent by guaranteed overnight delivery service, to the Investors at
the addresses indicated in the Company's records and to the other recipients at
the address indicated below:
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To the Company:
Integrated Circuit Systems, Inc.
0000 Xxxxxxxxx xx xxx Xxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000
Attn: President
With a copy to:
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00/xx/ xxx Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
and
Xxxx Capital, Inc.
Two Xxxxxx Place
Boston, Massachusetts 02116
Attn: Xxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Yoo Xxx Xxx
and
ICST Acquisition Corp.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Xxxxx X. Xxxxxxxx
and
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, P.C.
Xxxxxxx Xxxxxxx
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and
Xxxxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxx
To Executive Stockholders:
at each Executive's last address
on the records of the Company
or such other address or to the attention of such other person as the recipient
party will have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or mailed.
3. Termination. This Agreement shall terminate and be of no further
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force and effect upon the earlier of (i) consummation of the initial sale by the
Company of any class or classes of the Common Stock in an offering registered
under the Securities Act of 1933, as amended from time to time (other than an
offering made solely in connection with a business acquisition or combination or
an employee benefit plan) where the aggregate gross proceeds received by the
Company and its stockholders in such initial sale or series of such sales in the
aggregate are in excess of $50 million, or (ii) the date on which the Bain
Stockholders and their Affiliates no longer hold at least 50% of the Common
Stock (as adjusted to reflect stock splits, stock dividends, stock combinations
or recapitalizations) that they hold as of the date hereof.
4. Severability. Whenever possible, each provision of this Agreement
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will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
5. Complete Agreement. This Agreement embodies the complete agreement
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and understanding among the parties and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
6. Counterparts. This Agreement may be executed in separate
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counterparts, each of which will be deemed to be an original and all of which
taken together will constitute one and the same agreement.
7. Successors and Assigns; Transfer. This Agreement is intended to bind
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and inure to the benefit of and be enforceable by the Company, the Bain
Stockholders, the Bear Xxxxxxx Stockholders, the Executive Stockholders and
their respective successors and assigns; provided that
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the Executive Stockholders may not assign any of their rights hereunder without
the written consent of the Bain Stockholders.
8. Governing Law. The corporate law of the Commonwealth of Pennsylvania
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shall govern all questions concerning the relative rights of the Company and its
stockholders. All other issues concerning the enforceability, validity and
binding effect of this Agreement will be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania, without giving effect to any
choice of law or conflict of law provision or rule (whether of the Commonwealth
of Pennsylvania or any other jurisdiction) that would cause the application of
the law of any jurisdiction other than the Commonwealth of Pennsylvania.
9. Remedies. The parties hereto acknowledge and agree that money damages
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may not be an adequate remedy for any breach of the provisions of this Agreement
and that any party hereto will have the right to injunctive relief, in addition
to all of its other rights and remedies at law or in equity, to enforce the
provisions of this Agreement.
10. Amendments and Waivers. Any provision of this Agreement may be
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amended or waived upon the prior written consent of the Stockholders holding a
majority of the outstanding voting common stock of the Company; provided that
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Section 1 of this Agreement may not be amended in a manner adverse to the Bain
Stockholders without the prior written consent of the Bain Stockholders or
(other than to increase the size of the Board by one member) in a manner adverse
to the Bear Xxxxxxx Stockholders, or otherwise reduce or diminish any rights
that are applicable to the Bear Xxxxxxx Stockholders unless the same rights
applicable to the Bain Stockholders are reduced or diminished in the same manner
without the prior written consent of the Bear Xxxxxxx Stockholders; provided
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further that if, at any time as a result of rules, regulations, interpretations
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or promulgations adopted or modified by the FASB or other governmental agency,
the Company would no longer be able to be a part of a business combination,
commencing on or after the second anniversary of the date hereof, that would
qualify for pooling of interests accounting treatment, the parties hereto will
take such action requested by the Bain Stockholders to increase the Board by one
member and to amend the restrictions contained in the Articles of Incorporation
with respect to the conversion of Class B Common Stock into Class A Common
Stock, and take such other actions as the Bain Stockholders may reasonably
request in connection therewith.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement on the
day and year first above written.
THE COMPANY:
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INTEGRATED CIRCUIT SYSTEMS, INC.
By: /s/ Xxxx X. Xxx
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Name:
Its:
[Signature Page to Voting Agreement]
BAIN STOCKHOLDERS:
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XXXX CAPITAL FUND VI, L.P.
By: Xxxx Capital Partners VI, L.P.
Its: General Partner
By: Xxxx Capital Investors VI, Inc.
Its: General Partner
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Its: Managing Director
BCIP TRUST ASSOCIATES II
By: /s/ Xxxxxxx Xxxxxx
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BCIP TRUST ASSOCIATES II-B
By: /s/ Xxxxxxx Xxxxxx
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BCIP ASSOCIATES II
By: /s/ Xxxxxxx Xxxxxx
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BCIP ASSOCIATES II-B
By: /s/ Xxxxxxx Xxxxxx
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[Signature Page to Voting Agreement]
BAIN STOCKHOLDERS:
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BCIP ASSOCIATES II-C
By: /s/ Xxxxxxx Xxxxxx
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PEP INVESTMENTS PTY LTD.
By: /s/ Xxxxxxx Xxxxxx
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[Signature Page to Voting Agreement]
BAIN STOCKHOLDERS:
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XXXXXXXX STREET PARTNERS II
By: /s/ Xxxxxxx Xxxxxxx
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Its:
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XXXXXXXX XXXXXX XXXXXXXX 0000
XXX, X.X.X.
By: /s/ Xxxxxxx Xxxxxxx
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Its:
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[Signature Page to Voting Agreement]
BEAR XXXXXXX STOCKHOLDERS:
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ICST ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxxx
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Its:
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[Signature Page to Voting Agreement]
EXECUTIVE STOCKHOLDERS:
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/s/ Xxxxx X Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxxxxxxxx X. Xxxxx
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Xxxxxxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Solely with respect to Section 1:
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/s/ Xxxx X. Xxx
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Xxxx X. Xxx
[Signature Page to Voting Agreement]
SCHEDULE I
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Name and Address Number of Stockholder Shares
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Class A Class B Class L
Voting Non-Voting Voting
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Xxxx Capital Fund VI, L.P. 5,606,914 4,143,220 1,083,349
BCIP Associates II 1,142,187 844,017 146,428
BCIP Trust Associates II 336,921 248,967 123,876
BCIP Associates II-B 150,760 111,404 33,324
BCIP Trust Associates II-B 97,858 72,312 30,197
BCIP Associates II-C 296,838 219,348 57,354
PEP Investments PTY Ltd. 18,690 13,811 3,611
Xxxxxxxx Street Partners II 90,000 -- 10,000
Xxxxxxxx Street Partners 1998 DIF, 45,000 -- 5,000
L.L.C.
in each case:
c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx, 0/xx/ Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxx Xxx Xxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, P.C.
Xxxxxxx Xxxxxxx
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SCHEDULE II
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Name and Address Number of Stockholder Shares
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Class A Class B Class L
Voting Non-Voting Voting
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ICST Acquisition Corp. 4,434,416 -- 492,713
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Xx Xxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxx
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SCHEDULE III
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Name and Address Number of Stockholder Shares
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Class A Class B Class L
Voting Non-Voting Voting
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Xxxxx X. Xxxxxx 2,065,500 -- 289,500
Xxxxxxxxxxx X. Xxxxx 450,002 -- 50,000
Xxxxx X. Xxxxx 450,002 - 50,000
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