EXHIBIT A
AMENDMENT NO. 1 TO
STOCKHOLDERS AGREEMENT
This Amendment No. 1 to STOCKHOLDERS Agreement (the "Amendment") is made
and entered into as of December 29, 1999, by and among Integrated Circuit
Systems, Inc., a Pennsylvania corporation (the "Company"), each of the Persons
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listed on Schedule I attached hereto (the "Bain Stockholders"), each of the
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Persons listed on Schedule II attached hereto (the "Bear Xxxxxxx Stockholders"),
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the Person listed on Schedule III hereto (the "First Boston Stockholder") and
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the Person listed on Schedule IV hereto (the "Intel Stockholder").
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RECITALS
A. The Bain Stockholders, the Bear Xxxxxxx Stockholder, the First Boston
Stockholder and the Company entered into that certain Stockholders Agreement
dated as of May 11, 1999 (the "Original Agreement") for the purposes, among
others, of (i) assuring continuity in the management and ownership of the
Company and (ii) limiting the manner and terms by which the Stockholders' Common
Stock may be transferred.
B. Pursuant to a Series A Cumulative Convertible Preferred Stock Purchase
Agreement dated December 28, 1999 between the Company and Intel Corporation (the
Purchase Agreement"), the Company has agreed to sell to Intel Corporation, and
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Intel Corporation has agreed to purchase from the Company, certain shares of the
Company's Series A Cumulative Convertible Preferred Stock (the "Series A
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Preferred Stock"). Pursuant to the Purchase Agreement, the Company has agreed
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to provide certain rights to the Intel Stockholder, as more particularly set
forth in this Amendment.
C. Terms not otherwise defined in this Amendment have the meanings given
to them in the Agreement.
AGREEMENT
The parties hereto, intending to be legally bound, hereby agree as follows:
1. This Amendment constitutes an amendment to the Original Agreement.
The Original Agreement, as amended by this Amendment, is herein
referred to as the "Agreement." Except as specifically amended
pursuant to the terms of this Amendment, all of the terms of the
Original Agreement shall continue in full force and effect. Unless
otherwise provided in this Agreement, capitalized terms used herein
shall have the meanings set forth in Section 11 of the Agreement.
2. The Intel Stockholder is hereby added as a party to the Agreement,
and the definition of "Stockholder" in the first paragraph of the
Original Agreement shall be amended to include the Intel Stockholder.
3. Schedule IV shall be added to the Original Agreement, and the
reference to "Schedule I, II or III" in Section 1 of the Original
Agreement are hereby replaced with "Schedule I, II, III or IV."
4. Section 2(a) of the Original Agreement is hereby amended to add ", the
Intel Stockholder" after the words "the Bear Xxxxxxx Stockholders,"
and before the words "or the First Boston Stockholder" in the first
sentence thereof, and to replace the words "Public Offering" with the
words "Qualified Initial Public Offering" in the first sentence
thereof.
5. Section 2(b) of the Original Agreement is hereby amended to add the
words "the Intel Stockholder," after the words "the Bear Xxxxxxx
Stockholders," and before the words "the First Boston Stockholder" in
part (iv) thereof.
6. Section 3(a) of the Original Agreement is hereby amended to add the
words "(in connection with a Transfer by an Intel Stockholder only),
3(d)," after the word "3(c)" and to add "the Intel Stockholder," after
the word "Neither" and before the words " the First Boston
Stockholder" in the first sentence thereof.
7. Section 3(b)(i) of the Original Agreement is hereby amended to add ",
the Intel Stockholder," after the words "the Bear Xxxxxxx
Stockholders" and before the words "and the First Boston Stockholder"
in the first and last sentences thereof.
8. Section 3 of the Original Agreement is hereby amended by renumbering
the existing paragraphs (c) and (d) thereof as paragraph (d) and (e),
respectively, and by adding the following subsection as new paragraph
(c):
"(c) Intel Right of First Offer. Other than
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pursuant to an Approved Sale or an Approved
Bain Sale, the Intel Stockholder may not
Transfer any Stockholder Shares, directly or
indirectly, in one transaction or a series of
related transactions, to a Person engaged in
the business of designing, producing and
marketing mixed signal integrated circuits (a
"Competitor"). Prior to making any Transfer
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of Intel Shares pursuant to this Section
3(c), Intel shall deliver a written notice
(the "Intel Offer Notice") to the Company.
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The Intel Offer Notice shall disclose in
reasonable detail the proposed number of its
Stockholder Shares to be transferred (the
"Offered Shares") and the proposed sale
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price, terms and conditions of the Transfer.
The Company may elect to purchase all, but
not less than all, of the Offered Shares at
the price and on the other terms specified in
the Intel Offer Notice by delivering written
notice of such election to Intel within 20
days after receipt of the Intel Offer Notice
by the Company. If the Company has elected to
purchase the Offered Shares from Intel within
the aforementioned 20-day period, the
Transfer of such shares shall be consummated
as soon as practical after the delivery of
the election notice to Intel, but in any
event within 45 days after receipt of the
Intel Offer Notice by the Company (or such
longer period of time as may be required
pursuant to applicable law). If the Company
does not elect
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within the aforementioned 20-day period to
purchase the Offered Shares, Intel may,
within 80 days after the Company's receipt of
the Intel Offer Notice, transfer such Intel
Shares to one or more Persons (other than a
Competitor) at a price and on other terms no
more favorable to the transferee(s) thereof
than offered to the Company in the Intel
Offer Notice. Any Intel Shares not
transferred within such 45-day period shall
be reoffered to the Company in accordance
with this Section 3(c) prior to any
subsequent Transfer."
9. Section 3(c) of the Original Agreement (renumbered as 3(d) pursuant to
Section 8 hereof) is hereby amended to delete the second proviso which
begins "and provided further" and replace the second proviso in its
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entirety with the following language: "and provided further that the
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transferees of such Stockholder Shares shall have agreed in writing to
be bound by the provisions of this Agreement and, with respect to all
Stockholders other than transferees of the Intel Stockholder, the
Voting Agreement, in each case affecting the Stockholder Shares so
transferred."
10. Section 4(a) of the Original Agreement is hereby amended to add the
words ", subject to paragraph (d) of this Section 4" after the words
"by executing definitive agreements with respect to the sale thereof"
in the second sentence thereof and to add the words "and paragraph (d)
of this Section 4" after the words "immediately preceding proviso" in
the last sentence thereof.
11. Section 4 of the Original Agreement is hereby amended by renumbering
the existing paragraph (d) as paragraph (e), and by adding the
following subsection as new paragraph (d):
"(d) Without the prior written consent of the
Intel Stockholder, the Company shall not
enter into any agreement in connection with
an Approved Sale unless (i) with respect to
the Intel Stockholder, the liability of the
shareholders under the agreement for the
Approved Sale is several, and not joint and
several, (ii) the liability of the Intel
Stockholder under the offer is limited to the
Intel Stockholder's pro rata portion of any
claim and the liability of the Intel
Stockholder will not, in any event, exceed
that portion of the purchase price received
by the Intel Stockholder in the Approved
Sale; and (iii) the Intel Stockholder shall
not be restricted from engaging in any line
of business or subject to any non-
competition, non-solicitation or similar
covenants."
12. Section 5(a) of the Original Agreement is hereby amended to add the
words ", subject to paragraph (d) of this Section 5" after the words
"by executing definitive
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agreements with respect to the sale thereof" in the second sentence
thereof and again at the end of such Section.
13. Section 5 of the Original Agreement is hereby amended by renumbering
the existing paragraph (d) as paragraph (e), and by adding the
following subsection as new paragraph (d):
"(d) out the prior written consent of the
Intel Stockholder, the Company shall not
enter into any agreement in connection with
an Approved Bain Sale unless (i) with respect
to the Intel Stockholder, the liability of
the shareholders under the agreement for the
Approved Bain Sale is several, and not joint
and several, (ii) the liability of the Intel
Stockholder under the offer is limited to the
Intel Stockholder's pro rata portion of any
claim and the liability of the Intel
Stockholder will not, in any event, exceed
that portion of the purchase price received
by the Intel Stockholder in the Approved Bain
Sale; and (iii) the Intel Stockholder shall
not be restricted from engaging in any line
of business or subject to any non-
competition, non-solicitation or similar
covenants."
14. Section 7 of the Original Agreement is hereby deleted and replaced in
its entirety with the following section:
"7. Initial Public Offering. In the event
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that the Board approves an initial public
offering and sale of Common Stock (a "Public
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Offering") pursuant to an effective
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registration statement under the Securities
Act of 1933, as amended, the holders of
Common Stock shall take all necessary or
desirable actions in connection with the
consummation of the Public Offering. In the
event that such Public Offering is an
underwritten offering and the managing
underwriters advise the Company in writing
that in their opinion the Common Stock
structure would adversely affect the
marketability of the offering, each holder of
Common Stock shall consent to and vote for a
recapitalization, reorganization and/or
exchange of the Common Stock into securities
that the managing underwriters and the Board
find acceptable and shall take all necessary
or desirable actions in connection with the
consummation of the recapitalization,
reorganization and/or exchange; provided that
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(a) the resulting securities take into
account the rights and preferences set forth
in the Company's Amended and Restated
Articles of Incorporation as in effect
immediately prior to such Public Offering and
(b) any securities issued in exchange for the
Series A Preferred Stock shall have rights,
preferences and
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privileges substantially similar to and no
less favorable than the Series A Preferred
Stock. Nothing in this Section 7 shall be
deemed to constitute a consent or waiver by
the holders of Series A Preferred Stock with
respect to any action for which such consent
is required under the Company's Amended and
Restated Articles of Incorporation."
15. Section 13 of the Original Agreement is hereby deleted and replaced in
its entirety with the following section:
"13. Amendment and Waiver. Except as
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otherwise provided herein, no modification,
amendment or waiver of any provision of this
Agreement shall be effective against the
Company or the Stockholders unless such
modification, amendment or waiver is approved
in writing by the Company and the holders of
a majority of each class of the Stockholder
Shares; provided that in the event that such
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modification, amendment, action or waiver (or
any action with the effect of amending,
modifying or waiving) would adversely affect
the Intel Stockholder, the Bear Xxxxxxx
Stockholders or the First Boston Stockholder
in a manner different than the Bain
Stockholders or otherwise reduce or diminish
any rights that are applicable to the Intel
Stockholder, the Bear Xxxxxxx Stockholders or
the First Boston Stockholder unless the same
rights applicable to the Bain Stockholders
are reduced or diminished in the same manner,
then such modification, amendment or waiver
will require the consent of the Intel
Stockholder, the Bear Xxxxxxx Stockholders or
the First Boston Stockholder, as applicable.
The failure of any party to enforce any of
the provisions of this Agreement shall in no
way be construed as a waiver of such
provisions and shall not affect the right of
such party thereafter to enforce each and
every provision of this Agreement in
accordance with its terms."
16. Section 18 of the Original Agreement is hereby deleted and replaced in
its entirety with the following section:
"18. Remedies. The Company, the Bain
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Stockholders, the Bear Xxxxxxx Stockholders,
the Intel Stockholder and the First Boston
Stockholder shall be entitled to enforce
their rights under this Agreement
specifically, to recover damages by reason of
any breach of any provision of this Agreement
and to exercise all other rights existing in
their favor. The parties hereto agree and
acknowledge that money damages would not be
an adequate remedy for any breach of the
provisions of this Agreement and that the
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Company, any of the Bain Stockholders, the
Bear Xxxxxxx Stockholders, the Intel
Stockholder or the First Boston Stockholder
may in its sole discretion apply to any court
of law or equity of competent jurisdiction
for specific performance and/or injunctive
relief (without posting a bond or other
security) in order to enforce or prevent any
violation of the provisions of this
Agreement."
17. Section 23 of the Oiginal Agreement is hereby amended to add ", the
Intel Stockholder" after the words "the Bear Xxxxxxx Stockholders" and
before the words "and the First Boston Stockholder" in the first
sentence thereof.
18. Section 25 of the Original Agreement is hereby deleted and replaced in
its entirety with the following section:
"25. Rights Granted to the Bain
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Stockholders, the Bear Xxxxxxx Stockholders,
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the First Boston Stockholder, the Intel
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Stockholder and their Affiliates. Any rights
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granted to the Bain Stockholders, the Bear
Xxxxxxx Stockholders, the First Boston
Stockholder, the Intel Stockholder or their
Affiliates hereunder may also be exercised
(in whole or in part) by its designees (which
may be Affiliates)."
19. Miscellaneous.
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(a) Severability. Whenever possible, each provision of this
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Amendment shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Amendment 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 shall not affect
the validity, legality or enforceability of any other provision
of this Amendment in such jurisdiction or affect the validity,
legality or enforceability of any provision in any other
jurisdiction, but this Amendment shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
(b) Entire Agreement. Except as otherwise expressly set forth herein,
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this Amendment embodies the complete agreement and understanding
among the parties hereto with respect to the subject matter
hereof 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.
(c) Successors and Assigns. Except as otherwise provided herein, this
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Amendment shall bind and inure to the benefit of and be
enforceable by the Company and its successors and assigns and the
Stockholders and any
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subsequent holders of Stockholder Shares and the respective
successors and assigns of each of them, so long as they hold
Stockholder Shares.
(d) Counterparts. This Amendment may be executed in multiple
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counterparts, each of which shall be an original and all of which
taken together shall constitute one and the same agreement.
(e) Governing Law. The corporate law of the Commonwealth of
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Pennsylvania shall govern all issues and questions concerning the
relative rights of the Company and its stockholders. All other
issues and questions concerning the construction, validity,
interpretation and enforceability of this Amendment and the
exhibits and schedules hereto shall 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
rules or provisions (whether of the Commonwealth of Pennsylvania
or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the Commonwealth of
Pennsylvania.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
INTEGRATED CIRCUIT SYSTEMS, INC.
By: /s/ Xxxx X. Xxx
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Name: Xxxx X. Xxx
Its: President and Chief Executive Officer
INTEL CORPORATION
By: /s/ Arvind Sodhni
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Name: Arvind Sodhni
Its: Vice President and Tresurer
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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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Name: Xxxxxxx Xxxxxx
Its: Managing Director
BCIP TRUST ASSOCIATES II-B
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Its: Managing Director
BCIP ASSOCIATES II
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Its: Managing Director
BCIP ASSOCIATES II-B
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Its: Managing Director
BCIP ASSOCIATES II-C
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Its: Managing Director
PEP INVESTMENTS PTY LTD.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Its: Managing Director
XXXXXXXX STREET PARTNERS II
By:_______________________________
Name:
Its:
XXXXXXXX XXXXXX XXXXXXXX 0000
XXX, X.X.X.
By:_______________________________
Name:
Its:
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BEAR XXXXXXX STOCKHOLDERS:
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ICST ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Its: Vice President
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SCHEDULE IV
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Name and Address Number of Stockholder Shares
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Intel Corporation 3,366,670 shares of Series A Cumulative
Convertible Preferred Stock
