EXHIBIT 10.5
PIONEER SEMICONDUCTOR CORPORATION
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement ("Agreement") is made as of June
25, 1990, by and between Pioneer Semiconductor Corporation, a California
corporation (the "Company"), and Xxxx X. Xxx ("Purchaser").
1. Sale of Stock
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Subject to the terms and conditions hereof, on the Closing Date (as
defined in subparagraph 2(a) below) the Company will issue and sell to
Purchaser, and Purchaser agrees to purchase from the Company, 1,700,000 shares
of the Company's Common Stock, no par value (the "Shares"), in exchange for the
purchase price of $0.00l per Share for an aggregate purchase price of $1,700.00
(the "Purchase Price") .
The term "Shares" refers to the Shares and all securities received in
replacement of the Shares, or as stock dividends or as a result of any stock
splits, all securities received in replacement of the Shares in a
recapitalization, merger, reorganization, exchange or the like, and all new,
substituted or additional securities or other properties to which Purchaser is
entitled by reason of purchaser's ownership of the Shares.
2. Closing
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(a) The closing of the purchase and sale of the Shares hereunder
(the "Closing") shall be held at the principal office of the Company
simultaneously with the execution of this Agreement by the parties or on such
other date as to which they may agree (the "Closing Date").
(b) At the Closing, the Company and Purchaser will deliver to the
escrow agent (as defined below in Paragraph 4) a certificate representing the
Shares to be purchased by Purchaser (which shall be issued in Purchaser's name)
against payment of the Purchase Price therefor by a check in the amount of
$1,700.00 made payable to the order of the Company.
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3. Purchase option
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(a) In addition to any other limitation on transfer created by
applicable securities laws, Purchaser shall not assign, encumber or dispose of
any interest in the Shares while the Shares are subject to the Company's
Purchase Option (as defined below).
(b) The company shall have the right and option to repurchase the
Shares (the "Purchase Option") as set forth in this Paragraph 3 at a price of
$.00l per share (the "Option Price"). In the event Purchaser shall cease to be
employed by the Company (including a parent or subsidiary of the Company) for
any reason, except as provided in subparagraph (d) hereof (the "Termination"),
the Purchase Option shall come into effect. Following a Termination, the
Company shall have the right as provided in subparagraph (c) hereof, to exercise
the Purchase Option to purchase from the Purchaser or his personal
representative, as the case may be, at the Option Price any or all of the Shares
in which Purchaser has not acquired a vested interest in accordance with the
vesting provisions below:
(i) 25% vested as of June 25, 1990;
(ii) 2.1% vested on the 25th day of each month beginning
June 25, 1991 for the next thirty-six (36) months so that the Shares will be
fully vested as of June 25. 1994.
(c) Within forty-five (45) days following a Termination, the
Company shall notify Purchaser by written notice delivered or mailed as provided
in subparagraph 9(b), as to whether it wishes to purchase the Shares pursuant to
exercise of the Purchase Option. If the Company (or its assignee) elects to
purchase the Shares hereunder, it shall set a date for the closing of the
transaction at a place specified by the company not later than fifteen (15) days
from the date of such notice. At such closing, the Company (or its assignee)
shall tender payment for the Shares and the certificates representing the Shares
so purchased shall be cancelled. Purchaser hereby authorizes and directs the
Secretary or Transfer Agent of the Company to transfer the Shares as to which
the Purchase Option has been exercised from Purchaser to the Company. The Option
Price may be payable, at the option of the Company, in cancellation of all or a
portion of any outstanding indebtedness of Purchaser to the Company or in cash
(by check), or both.
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(d) In the event Purchaser's employment shall terminate as a
result of his death or permanent disability, the Purchase Option shall not apply
to the Company and shall thereafter be terminated. Purchaser shall be deemed
permanently disabled in the event he is unable, as a result of a mental or
physical condition, to perform his employment duties to the Company and a
qualified physician, acceptable to the Board of Directors of the Company,
establishes to the reasonable satisfaction of the Board of Directors that such
condition will continue for a period of not less than one (1) year.
4. Escrow
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For purposes of facilitating the enforcement of the provisions of
Xxxxxxxxx 0, Xxxxxxxxx agrees, immediately upon receipt of the certificate for
his Shares, to deliver such certificates, together with stock powers executed in
blank by Purchaser and Purchaser's spouse (if required for transfer) with
respect to each such stock certificate, to the Secretary or Assistant Secretary
of the Company, or their designees, to hold in escrow, with the authority to
take all such actions and to effectuate all such transfers and/or releases as
may be necessary or appropriate to accomplish the objectives of this Agreement
in accordance with the terms hereof. Purchaser hereby acknowledges that the
appointment of the Secretary or Assistant Secretary of the Company (or their
designee) as the escrow holder hereunder with the stated authorities is a
material inducement to the Company to make this Agreement and that such
appointment is coupled with an interest and is accordingly irrevocable.
Purchaser agrees that such escrow holder shall not be liable to any party hereto
(or to any other party) for any actions or omissions unless such escrow holder
is grossly negligent relative thereto. The escrow holder may rely upon any
letter, notice or other document executed by any signature purported to be
genuine and may resign at any time.
5. Investment Representations
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In connection with the purchase of the Shares, Purchaser
represents to the Company the following:
(a) Purchaser is purchasing the Shares for investment for his
own account only and not with a view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
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(b) Purchaser understands that the Shares have not been
registered under the Securities Act by reason of a specific exemption therefrom,
which exemption depends upon, among other things, the bona fide nature of
Purchaser's investment intent as expressed herein.
(c) Purchaser acknowledges and understands that the Shares must be
held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available. Purchaser further
acknowledges and understands that, except as herein provided, the Company is
under no obligation to register the Shares. Purchaser understands that the
certificate evidencing the securities will be imprinted with a legend which
prohibits the transfer of the securities unless they are registered or such
registration is not required in the opinion of counsel for the Company.
(d) Purchaser is aware of the provisions of Rule 144, promulgated
under the Securities Act, which, in substance, permit limited public resale of
"restricted securities" (acquired, directly or indirectly, from the issuer
thereof or from an affiliate of such issuer, in a non-public offering) subject
to the satisfaction of certain conditions, including, among other things: (i)
the availability, in certain cases, of certain public information about the
Company; (ii) the resale occurring not less than two years after the party has
purchased and paid for the securities to be sold; and (iii) in the case of an
affiliate, or a non-affiliate who has held the restricted securities for less
than three years, the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as such
term is defined under the Securities Exchange Act of 1934) and the amount of
securities being sold during any three-month period not exceeding the specified
limitations stated therein .
6. Legends
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(a) The certificate or certificates representing the Shares shall
bear the following legends:
(i) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.
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(ii) Any legends required by the bylaws of the Company.
(iii) Any legends required by state blue sky laws.
7. NO EMPLOYMENT RIGHTS
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THIS AGREEMENT SHALL NOT CONFER UPON PURCHASER ANY RIGHT WITH
RESPECT TO CONTINUATION OF HIS EMPLOYMENT WITH THE COMPANY OR ITS SUBSIDIARIES,
NOR SHALL IT INTERFERE IN ANY WAY WITH THE RIGHT OF PURCHASER OR THE COMPANY, OR
ANY OF ITS SUBSIDIARIES, TO TERMINATE PURCHASER'S EMPLOYMENT WITH THE COMPANY AT
ANY TIME.
8. Section 83(b) Election
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Purchaser hereby represents that he understands (a) the contents
and requirements of Section 83(b) of the Internal Revenue Code of 1986, as
amended ("Section 83(b)"), (b) the application of Section 83(b) to the purchase
of the Shares by Purchaser and (c) the nature of the election to be made by
Purchaser under Section 83(b). Purchaser further represents that he intends to
file an election pursuant to Section 83(b) with the Internal Revenue Service
within thirty (30) days following the date of this Agreement, and a copy of such
election with his federal tax return for the calendar year in which the date of
this Agreement falls. Purchaser acknowledges that his failure to file such
election in a timely manner may result in adverse tax consequences for
Purchaser.
9. Miscellaneous
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(a) This Agreement may be amended by written Agreement between the
Company and Purchaser.
(b) Any notice, demand or request required or permitted to be
given under this Agreement shall be in writing and shall be deemed sufficient
when delivered personally or sent by telegram or forty-eight (48) hours after
being deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, and addressed, if to the Company, at its principal place of business,
attention the President, and if to Purchaser, at his address as shown on the
stock records of the Company.
(c) The rights and benefits of this Agreement, including the right
to exercise the Purchase Option with respect to the Shares, shall inure to the
benefit of, and be enforceable by the Company's successors
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and assigns. The rights and obligations of Purchaser under this Agreement may
be assigned only with the prior written consent of the Company.
(d) Both parties agree to execute any additional documents
necessary to carry out the purposes of this Agreement.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
PIONEER SEMICONDUCTOR
CORPORATION, a California
corporation
By: /s/????????????????????????
_______________________________
Title: President
_____________________________
PURCHASER:
/s/XXXX X. XXX
___________________________________
XXXX X. XXX
Address: 0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
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ACKNOWLEDGMENT OF SPOUSE
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I, Xxxxx Xxx-Xxx Xxx, spouse of Xxxx X. Xxx, have read and
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approved the foregoing Agreement. In consideration of the grant by Pioneer
Semiconductor Corporation (the "Corporation") to my spouse of the right to
purchase shares of the Corporation's Common Stock, as set forth in the
Agreement, I hereby agree to be bound by the provisions of the Agreement insofar
as I may have any rights under such Agreement or in any shares issued pursuant
thereto under the community property laws of the State of California or similar
laws relating to marital property in effect in the state of our residence as of
the date of execution of the foregoing Agreement, and hereby appoint my spouse
as my attorney-in-fact with respect to all matters arising in connection with
the Agreement or the shares of Common Stock issued pursuant thereto.
/s/Xxxxx Xxx-Xxx Xxx
Dated: ________________ , 1990. _________________________ Signature
XXXXX XXX-XXX XXX
________________________
Printed Name
ASSIGNMENT SEPARATE FROM CERTIFICATE
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FOR VALUE RECEIVED, I hereby sell, assign and transfer unto
______________________________________________________________________________
_________________________________________________________________ ( __________)
shares of the Common Stock of Pioneer Semiconductor Corporation, a California
corporation (the "Corporation"), standing in my name of the books of such
corporation, represented by Certificate No. ______ herewith, and do hereby
irrevocably constitute and appoint
______________________________________________________________________________
to transfer such stock on the books of such Corporation with full power of
substitution in the premises.
/s/XXXX X. XXX
Dated: ____________ , l9__. _____________________________
XXXX X. XXX
This Assignment Separate from Certificate was executed in conjunction
with the terms of a Common Stock Purchase Agreement between the above assignor
and the Corporation, dated June 25, 1990.
