EXHIBIT 10.11
STOCKHOLDERS AGREEMENT
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THIS STOCKHOLDERS AGREEMENT is made as of May 11, 1999, by and among
Integrated Circuit Systems, Inc., a Pennsylvania corporation (the "Company"),
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each of the Persons listed on Schedule I attached hereto (the "Xxxx
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Stockholders"), each of the Persons listed on Schedule II attached hereto (the
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"Bear Xxxxxxx Stockholders") and the Person listed on Schedule III hereto (the
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"First Boston Stockholder"). The Xxxx Stockholders, the Bear Xxxxxxx
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Stockholders and the First Boston Stockholder are collectively referred to as
the "Stockholders" and individually as a "Stockholder". Capitalized terms used
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herein are defined in Section 11 hereof.
As of the date hereof, the Xxxx Stockholders', the Bear Xxxxxxx
Stockholders' and the First Boston Stockholder's shares of common stock of ICS
Merger Corp., a Pennsylvania corporation ("ICS"), will be converted into shares
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of the Company's Class A Common Stock, par value $.01 per share, Class B Common
Stock, par value $.01 per shares, and Class L Common Stock, par value $.01 per
share (collectively, the "Common Stock") pursuant to a Merger Agreement, dated
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as of January 20, 1999, between the ICS and the Company (as amended, the "Merger
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Agreement").
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The Company and the Stockholders desire to enter into this 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.
1. Representations and Warranties. Each Stockholder represents and
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warrants that (i) such Stockholder is the record owner of the number of
Stockholder Shares set forth opposite his or its name on Schedule I, II or III
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attached hereto, (ii) this Agreement has been duly authorized, executed and
delivered by such Stockholder and constitutes the valid and binding obligation
of such Stockholder, enforceable in accordance with its terms, and (iii) such
Stockholder has not granted and is not a party to any proxy, voting trust or
other agreement which is inconsistent with, conflicts with or violates any
provision of this Agreement. No holder of Stockholder Shares shall grant any
proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.
2. Preemptive Rights.
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(a) Except as set forth in subsection (b) below, the Company will not
issue, sell or otherwise transfer for consideration to the Xxxx Stockholders,
the Bear Xxxxxxx Stockholders or the First Boston Stockholder (an "Issuance") at
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any time prior to a Public Offering, any Stockholder Shares or debt securities
(or securities convertible into or exercisable or exchangeable for Stockholder
Shares or debt securities) unless, at least 15 days prior to such Issuance, the
Company notifies each holder of Stockholder Shares in writing of the Issuance
(including the price, the purchasers thereof and the other terms thereof) and
grants to each other holder of Stockholder Shares, the right (the "Right") to
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subscribe for and purchase a portion of such additional shares or
other securities so issued at the same price and on the same terms as issued in
the Issuance equal to the quotient determined by dividing (1) the number of
fully diluted shares of Common Stock held by such holder by (2) the total number
of shares of Common Stock outstanding on a fully diluted basis. Notwithstanding
the foregoing, if all Persons entitled to purchase or receive such stock or
securities are required to also purchase other securities of the Company, the
holders of Stockholder Shares exercising their Right pursuant to this Section
shall also be required to purchase the same strip of securities (on the same
terms and conditions) that such other Persons are required to purchase. The
Right may be exercised by such holder at any time by written notice to the
Company received by the Company within 10 days after receipt by such holder of
the notice from the Company referred to above. The closing of the purchase and
sale pursuant to the exercise of the Right shall occur not less than 10 days
after the Company receives notice of the exercise of the Right and concurrently
with the closing of the Issuance.
(b) Notwithstanding the foregoing, the Right shall not apply to (i)
issuances of Stockholder Shares or debt securities (or securities convertible
into or exchangeable for, or options to purchase, Stockholder Shares or debt
securities), pro rata to all holders of any class of Stockholder Shares, as a
dividend on, subdivision of or other distribution in respect of, such class of
Stockholder Shares, (ii) conversions or exchanges of one form or class of
Stockholder Shares to another form or class of Stockholder Shares, (iii)
issuances of Stockholder Shares upon exercise of any debt security issued by the
Company, or (iv) the issuance of Stockholder Shares (or securities convertible
into or exchangeable for, or options to purchase, Stockholder Shares) on
customary, arm's length terms in connection with the provision by the Xxxx
Stockholders, the Bear Xxxxxxx Stockholders, the First Boston Stockholder or
Affiliates thereof of debt financing to the Company or its Subsidiaries.
(c) The provisions of this Section 2 will terminate upon the
consummation of a Public Offering or upon a Xxxx Exit.
3. Restrictions on Transfer of Stockholder Shares.
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(a) Transfer of Stockholder Shares. Neither the Bear Xxxxxxx
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Stockholders nor the First Boston Stockholder shall sell, transfer, assign,
pledge or otherwise dispose of (whether voluntarily or involuntarily, whether
with or without consideration or by operation of law) (a "Transfer") (as defined
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in Section 3(b)) any interest in their Stockholder Shares except pursuant to and
in accordance with Sections 3(b) (in connection with a Transfer by a Xxxx
Stockholder only), 3(c), 4, 5 or 7 below.
(b) Participation Rights.
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(i) If the Xxxx Stockholders propose to enter into any sale to an
Independent Third Party or to an affiliated group of Independent Third
Parties pursuant to which such party or parties acquire more than 5% of the
Stockholder Shares held by the Xxxx Stockholders in any transaction or
series of transactions (excluding Public Sales and transfers and/or
distributions to partners of the Xxxx Stockholders), then the Bear Xxxxxxx
Stockholders and the First Boston Stockholder will be afforded an
opportunity to participate in such
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transaction on, subject to Section 6, the same terms and conditions as
applicable to the other holders of Stockholder Shares participating in such
transaction. If any stockholder other than the Xxxx Stockholders (each a
"Transferring Stockholder") has elected to participate in such sale, the
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Xxxx Stockholders and such Transferring Stockholder shall be entitled to
sell in the contemplated sale a number of shares of such class of
Stockholder Shares equal to the product of (A) the quotient determined by
dividing the percentage of such class of Stockholder Shares owned by the
Transferring Stockholder by the aggregate percentage of such class of
Stockholder Shares owned by the stockholders participating in such sale
(which in the case of a sale by Xxxx Stockholders may include the Bear
Xxxxxxx Stockholders and which in the case of a sale by Bear Xxxxxxx
Stockholders may include the Xxxx Stockholders) and (B) the number of
Stockholder Shares to be sold in the contemplated sale. Subject to the
first sentence of this Section 3(b)(i), the Bear Xxxxxxx Stockholders and
the First Boston Stockholder will take all necessary or desirable actions
in connection with the consummation of any such transaction as requested by
the Xxxx Stockholders including, without limitation, executing the
applicable purchase agreement.
(ii) Notwithstanding the foregoing, in the event that the Xxxx
Stockholders intend to transfer shares of more than one class of
Stockholder Shares (for purposes of this clause (ii) treating the Company's
Class A Common Stock and Class B Common Stock the same), each Transferring
Stockholder will not be entitled to participation rights pursuant to this
Section 3(b) unless such Transferring Stockholder sells in the contemplated
sale a pro rata portion of shares of all such classes of Stockholder
Shares, which portion shall be determined in the manner set forth in
Section 3(b)(i).
(iii) The Xxxx Stockholders will use reasonable efforts to obtain the
agreement of the prospective transferee(s) to the participation of any
Transferring Stockholders in any contemplated sale, and the Xxxx
Stockholders will not transfer any of their Stockholder Shares to the
prospective transferee(s) unless (i) the prospective transferee(s) agree to
allow the participation of the Transferring Stockholders or (ii) the Xxxx
Stockholders agree to purchase on the same terms and conditions the number
of such class of Stockholder Shares from any Transferring Stockholders
which such Transferring Stockholders would have been entitled to sell
pursuant to this Section 3 on the same terms and conditions as the Xxxx
Stockholders.
(c) Permitted Transfers. The restrictions set forth in this Section
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3 shall not apply with respect to any Transfer of Stockholder Shares (i)
pursuant to the terms of the Registration Agreement, dated as of the date
hereof, by and between the Company and certain of its stockholders, or (ii) by
any Stockholder among its Affiliates (including for purposes of this Section
3(c) with respect to the Bear Xxxxxxx Stockholders, any Affiliate of The Bear
Xxxxxxx Companies Inc. or with respect to the First Boston Stockholder, any
Affiliate of Credit Suisse First Boston); provided that the restrictions
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contained in this Section 3 shall continue to be applicable to the Stockholder
Shares after any Transfer of the type referred to in clause (ii) above; and
provided further that the transferees of such Stockholder Shares shall have
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agreed in writing to be bound by the provisions of this Agreement and the Voting
Agreement affecting the Stockholder Shares so transferred. Any
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transferee of Stockholder Shares pursuant to a Transfer in accordance with the
provisions of this Section 3(c) is herein referred to as a "Permitted
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Transferee". Notwithstanding the foregoing, no party hereto shall avoid the
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provisions of this Agreement by making one or more transfers to one or more
Permitted Transferees and then disposing of all or any portion of such party's
interest in any such Permitted Transferee. In addition, the Bear Xxxxxxx
Stockholder shall not permit its equity interests to be held by any Person that
is not an Affiliate of The Bear Xxxxxxx Companies Inc. and the First Boston
Stockholder shall not permit its equity interests to be held by any Person that
is not an Affiliate of Credit Suisse First Boston.
(d) Termination of Restrictions. The restrictions set forth in
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Section 3 shall continue with respect to each Stockholder Share until the
earlier of (i) the consummation of a Qualified Initial Public Offering or (ii)
the seventh anniversary of the date hereof; provided, however, that after the
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fifth anniversary hereof, (I) if a Pooling Dissolution Event (as hereinafter
defined) has not previously occurred, the Bear Xxxxxxx Stockholders may Transfer
their Stockholder Shares if and only if the proposed transferee agrees in
writing to appoint an Affiliate of the Bear Xxxxxxx Stockholders to the Board
pursuant to the Voting Agreement or otherwise through the seventh anniversary of
the date hereof or (II) if a Pooling Dissolution Event has previously occurred,
prior to giving effect to any such transfer, the Bear Xxxxxxx Stockholders shall
have taken all actions reasonably requested by the Xxxx Stockholders to assure
that the Xxxx Stockholders can convert all or any portion of its Class B Common
Stock into Class A Common Stock before giving effect to such Transfer and agree
to vote with the Xxxx Stockholders to increase the size of the Board and appoint
a designee of the Xxxx Stockholders so that the Xxxx Stockholders have control
of the Board after giving effect to such Transfer.
4. Unaffiliated Sale of the Company.
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(a) If the Board approves an Unaffiliated Sale of the Company (an
"Approved Sale"), then each holder of each class of Stockholder Shares will vote
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for, consent to and raise no objections against such Approved Sale. Each holder
of each class of Stockholder Shares will, to the maximum extent permitted by
applicable law, waive any dissenters' rights, appraisal rights or similar rights
in connection with such Approved Sale, and if such Approved Sale is a sale of
stock, each holder of such class of Stockholder Shares will agree to sell
(including, without limitation, by executing definitive agreements with respect
thereto) up to all of his or her shares of Stockholder Shares on the terms and
conditions approved by the Board; provided that the terms and conditions of such
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transaction applicable to each Stockholder with respect to such class of
Stockholder Shares are the same as those applicable to the stockholder holding
the largest number of shares of such class of Stockholder Shares (including,
subject to Section 6 below, the price per share and the type of consideration,
but excluding reasonable investment banking and advisory fees customarily
charged by the Xxxx Stockholders, the Bear Xxxxxxx Stockholders, the First
Boston Stockholder and their Affiliates for transactions of such type). Subject
to the immediately preceding proviso, each holder of Stockholder Shares will
take all necessary or desirable actions in connection with the consummation of
the Approved Sale as requested by the Board or the Company.
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(b) If the Company or the holders of the Company's securities enter
into any negotiation or transaction for which Rule 506 (or any similar rule then
in effect) promulgated by the Securities and Exchange Commission may be
available with respect to such negotiation or transaction (including a merger,
consolidation or other reorganization), the holders of Stockholder Shares will,
at the request of the Company, appoint a purchaser representative (as such term
is defined in Rule 501) reasonably acceptable to the Company. If any holder of
Stockholder Shares appoints a purchaser representative designated by the
Company, the Company will pay the fees of such purchaser representative, but if
any holder of Stockholder Shares declines to appoint the purchaser
representative designated by the Company, such holder will appoint another
purchaser representative, and such holder will be responsible for the fees of
the purchaser representative so appointed.
(c) Each of the holders of Stockholder Shares (if any) will bear
their pro-rata share (based upon the number of shares of Class A Common and
Class B Common sold) of the costs of any sale of Stockholder Shares pursuant to
an Approved Sale to the extent such costs are incurred for the benefit of all or
substantially all holders of Common Stock and are not otherwise paid by the
Company or the acquiring party. Costs incurred by each holder of Stockholder
Shares on its own behalf will not be considered costs of the transaction
hereunder.
(d) The provisions of this Section 4 shall terminate at the time of a
Qualified Initial Public Offering.
5. Xxxx Sale of the Company.
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(a) If a majority of the members of the Board (including the vote of
any director appointed by the Bear Xxxxxxx Stockholders pursuant to the terms of
the Voting Agreement, dated as of the date hereof, by and among the Company and
its stockholders) which are not affiliated with or designated by the Xxxx
Stockholders (the "Non-Xxxx Directors") approve a Xxxx Sale of the Company (an
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"Approved Xxxx Sale"), then each holder of Stockholders Shares that is not
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affiliated with the Xxxx Stockholders will vote for, consent to and raise no
objections against such Approved Xxxx Sale. Each such holder of each class of
Stockholders Shares will, to the maximum extent permitted by applicable law,
waive any dissenters' rights, appraisal rights or similar rights in connection
with such Approved Xxxx Sale, and in the event that such Approved Xxxx Sale is a
sale of stock, each such holder of Stockholders Shares will agree to sell up to
all of his or her Stockholders Shares (including, without limitation, by
executing definitive agreements with respect to the sale thereof) on the terms
and conditions approved by the Non-Xxxx Directors; provided that the terms and
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conditions of such transaction applicable to each Stockholder that is not a Xxxx
Stockholder or an Affiliate thereof with respect to such class of Stockholder
Shares are the same as those applicable to the stockholder holding the largest
number of shares of such class of Stockholder Shares that is not a Xxxx
Stockholder or an Affiliate thereof (including, subject to Section 6 below, the
price per share and the type of consideration, but excluding reasonable
investment banking and advisory fees customarily charged by the Bear Xxxxxxx
Stockholders, the First Boston Stockholder and their Affiliates for transactions
of such type). Each such holder of Stockholder Shares will take
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all necessary or desirable actions in connection with the consummation of the
Approved Xxxx Sale as requested by the Non-Xxxx Directors, the Xxxx Stockholders
or the Company.
(b) If, in relation to an Approved Xxxx Sale, the Company or the
holders of the Company's securities enter into any negotiation or transaction
for which Rule 506 (or any similar rule then in effect) promulgated by the
Securities and Exchange Commission may be available with respect to such
negotiation or transaction (including a merger, consolidation or other
reorganization), the holders of Stockholders Shares will, at the request of the
Company or the Xxxx Stockholders appoint a purchaser representative (as such
term is defined in Rule 501) reasonably acceptable to the Company and the Xxxx
Stockholders. If any holder of Stockholders Shares appoints a purchaser
representative designated by the Company or the Xxxx Stockholders, the Company
will pay the fees of such purchaser representative, but if any holder of
Stockholders Shares declines to appoint the purchaser representative designated
by the Company or the Xxxx Stockholders, such holder will appoint another
purchaser representative, and such holder will be responsible for the fees of
the purchaser representative so appointed.
(c) Each of the holders of Stockholder Shares (if any) will bear
their pro-rata share (based upon the number of shares of Class A Common and
Class B Common sold by stockholders) of the costs of any sale of Stockholder
Shares pursuant to an Approved Xxxx Sale to the extent such costs are incurred
for the benefit of all or substantially all holders of Common Stock that are not
affiliated with the Xxxx Stockholders and are not otherwise paid by the Company
or the acquiring party. Costs incurred by each holder of Stockholder Shares on
its own behalf will not be considered costs of the transaction hereunder.
(d) The provisions of this Section 5 shall terminate at the time of a
Qualified Initial Public Offering.
6. Distributions upon Sale of the Company, etc. In the event of a
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sale or exchange by the Stockholders of Stockholder Shares held by the
Stockholders (whether by sale, merger, recapitalization, reorganization,
consolidation, combination or otherwise) in connection with an Approved Sale or
an Approved Xxxx Sale each Stockholder shall receive in exchange for the
Stockholder Shares held by such Stockholder participating in such sale, the same
portion of the aggregate consideration from such sale or exchange that such
Stockholder would have received if such aggregate consideration had been
distributed by the Company to the holders of capital stock of the Company
participating in such sale, in complete liquidation pursuant to the rights and
preferences set forth in the Company's Amended and Restated Articles of
Incorporation as in effect immediately prior to such sale or exchange (and
assuming that the only shares of capital stock of the Company outstanding were
the shares of capital stock of the Company participating in such sale). Each
holder of Stockholder Shares shall take all necessary or desirable actions in
connection with the distribution of the aggregate consideration from such sale
or exchange as requested by the Company.
7. Initial Public Offering. In the event that the Board approves an
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initial public offering and sale of Common Stock (a "Public Offering") pursuant
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to an effective registration
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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 the resulting securities take into account the rights and
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preferences set forth in the Company's Amended and Restated Articles of
Incorporation as in effect immediately prior to such Public Offering.
8. Restrictive Legend; Additional Restriction on Transfer. Each
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certificate evidencing Stockholder Shares and each certificate issued in
exchange for or upon the transfer of any Stockholder Shares (if such shares
remain Stockholder Shares after such transfer) shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS PURSUANT TO A STOCKHOLDERS AGREEMENT, DATED AS OF MAY,
1999 AMONG THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND CERTAIN
OF THE COMPANY'S STOCKHOLDERS, AS AMENDED AND MODIFIED FROM TIME TO
TIME. A COPY OF SUCH STOCKHOLDERS AGREEMENT SHALL BE FURNISHED
WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST."
The Company shall imprint such legend on certificates evidencing Stockholder
Shares outstanding as of the date hereof. The legend set forth above shall be
removed from the certificates evidencing any shares which cease to be
Stockholder Shares in accordance with the definition of Stockholder Shares set
forth in Section 10 hereof.
9. Covenants. Until such time as the Company has consummated a
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Qualified Initial Public Offering or until such time as the Xxxx 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) they own as of the date hereof on a fully-diluted basis,
without the prior written consent of the holders of at least a majority of the
shares of Common Stock then held by all of the Xxxx Stockholders, the Company
shall not (and no Stockholder shall vote its shares, either at a stockholder
meeting or by written consent, so as to cause or permit the Company to):
(a) directly or indirectly declare or pay any dividends or make any
distributions upon any of its capital stock or other equity securities pursuant
to the terms of the Company's Articles of Incorporation as in effect from time
to time (the "Articles of Incorporation");
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(b) directly or indirectly redeem, purchase or otherwise acquire, or
permit any of its Subsidiaries to redeem, purchase or otherwise acquire, any of
the Company's or any subsidiary's capital stock or other equity securities
(including, without limitation, warrants, options and other rights to acquire
such capital stock or other equity securities) other than pursuant to the
mandatory redemption or repurchase terms of the Executive Stock Agreements and
the Executive Stock and Option Agreements executed by the Company as of the date
hereof, or directly or indirectly enter into, issue, redeem, purchase or make
any payments with respect to any stock appreciation rights, phantom stock plans
or similar rights or plans;
(c) authorize, issue, sell or enter into any agreement providing for
the issuance (contingent or otherwise) of, (A) any notes or debt securities
containing equity features (including, without limitation, any notes or debt
securities convertible into or exchangeable for capital stock or other equity
securities, issued in connection with the issuance of capital stock or other
equity securities or containing profit participation features) or (B) any
capital stock or other equity securities (or any securities convertible into or
exchangeable for any capital stock or other equity securities) of the Company or
any of its Subsidiaries other than pursuant to the Executive Stock and Option
Agreements executed as of the date hereof;
(d) make, or permit any of its Subsidiaries to make, any loans or
advances to, guarantees for the benefit of, or investments in, any Person (other
than a wholly-owned subsidiary), except for (A) reasonable advances to employees
in the ordinary course of business and (B) investments having a stated maturity
no greater than one year from the date the Company makes such Investment in (1)
obligations of the United States government or any agency thereof or obligations
guaranteed by the United States government, (2) certificates of deposit of
commercial banks having combined capital and surplus of at least $50 million,
(3) commercial paper with a rating of at least "Prime-1" by Xxxxx'x Investors
Service, Inc. or (4) loans to the Company's management pursuant to the terms of
Promissory Notes executed as of the date hereof;
(e) merge or consolidate with any Person or permit any of its
Subsidiaries to merge or consolidate with any Person (other than a wholly-owned
Subsidiary);
(f) sell, lease or otherwise dispose of, or permit any of its
Subsidiaries to sell, lease, license or otherwise dispose of, any of the assets
of the Company and its Subsidiaries in any transaction or series of related
transactions (other than sales of inventory, furniture, fixtures and equipment
in the ordinary course of business) or sell or dispose of any of its or any of
its Subsidiaries' intellectual property rights;
(g) liquidate, dissolve or effect a recapitalization or
reorganization, or permit any of its Subsidiaries to liquidate, dissolve or
effect a recapitalization or reorganization, in any form of transaction
(including, without limitation, any reorganization into a limited liability
company, a partnership or any other non-corporate entity which is treated as a
partnership for federal income tax purposes);
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(h) acquire, or permit any of its Subsidiaries to acquire, any
interest in any company or business (whether by a purchase of assets, purchase
of stock, merger or otherwise), or enter into any partnership or joint venture;
(i) enter into, or permit any of its Subsidiaries to enter into, the
ownership, active management or operation of any business other than the line of
business of the Company existing on the date of this Agreement;
(j) become subject to, or permit any of its Subsidiaries to become
subject to, (including, without limitation, by way of amendment to or
modification of) any agreement or instrument which by its terms would (under any
circumstances) restrict the Company's right to perform the provisions of this
Agreement, the Registration Agreement dated as of the date hereof by and between
the Company and certain of its stockholders (the "Registration Agreement"), the
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Voting Agreement dated as of the date hereof by and between the Company and
certain of its stockholders (as amended, modified, waived or supplemented from
time to time, the "Voting Agreement"), the Articles of Incorporation or the
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Company's bylaws, in case as in effect from time to time;
(k) make any amendment to the Articles of Incorporation, the
Company's bylaws, the Registration Agreement or the Voting Agreement;
(l) enter into (except for Executive Stock Agreements and Executive
Stock and Option Agreements and any other ancillary agreements executed as of
the date hereof), or amend, modify or supplement (or waive any rights under), or
permit any of its subsidiaries to enter into, amend, modify or supplement (or
waive any rights under), any agreement, transaction, commitment or arrangement
with any of its or any of its Subsidiaries' officers, directors, employees,
stockholders or Affiliates or with any individual related by blood, marriage or
adoption to any such individual or with any entity in which any such Person or
individual owns a beneficial interest, except for customary employment
arrangements and benefit programs on reasonable terms approved by the Board;
(m) pay or increase any compensation (including salary, bonuses and
other forms of current and deferred compensation) to any officer or director of
the Company or any of its Subsidiaries, or elect, appoint or remove any
executive officer of the Company or its Subsidiaries;
(n) establish or acquire (A) any Subsidiaries other than wholly-owned
Subsidiaries or (B) any Subsidiaries (other than wholly-owned Subsidiaries)
organized outside of the United States and its territorial possessions;
(o) create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any indebtedness (or
any guaranty of indebtedness or obligations of any other Person), other than
indebtedness under its senior credit facility(as in existence on the date
hereof) or trade payables and other current liabilities incurred in the ordinary
course of business;
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(p) create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any liens or other
encumbrances on its assets, other than statutory liens incurred in the ordinary
course of business, liens for taxes not yet due and payable or liens otherwise
permitted under its senior credit facility (as in existence on the date hereof);
(q) make any capital expenditures (including, without limitation,
payments with respect to capitalized leases, as determined in accordance with
generally accepted accounting principles consistently applied) exceeding
$5,000,000 in the aggregate on a consolidated basis during any twelve-month
period;
(r) enter into any leases or other rental agreements (excluding
capitalized leases, as determined in accordance with generally accepted
accounting principles consistently applied) under which the amount of the
aggregate lease payments for all such agreements exceeds $2,000,000 on a
consolidated basis for any twelve-month period;
(s) change its fiscal year;
(t) increase the authorized size of its board of directors above six
members or decrease the authorized size of its board of directors below six
members;
(u) amend or modify any stock option plan or employee stock ownership
plan as in existence as of the Closing, adopt any new stock option plan or
employee stock ownership plan or issue any shares of Common Stock to its or its
Subsidiaries' employees other than pursuant to the Company's existing stock
option and employee stock ownership plans;
(v) initiate or settle any lawsuit, arbitration or similar
proceeding, or permit any of its Subsidiaries to initiate or settle any lawsuit,
arbitration or similar proceeding other than any settlement, lawsuit or
arbitration which does not individually exceed $100,000 or together with all
other settlements, lawsuits and arbitrations exceed $500,000 any one fiscal
year;
(w) authorize, approve, adopt or amend the Company's annual budget or
capital expenditure budget, or its strategic plans, or permit any of its
Subsidiaries to authorize, approve, adopt or amend such Subsidiary's annual
budget or capital expenditure budget, or its strategic plans;
(x) select, retain or remove the independent certified public
accountants or counsel for the Company or any of its subsidiaries, or adopt (or
modify in any material respect) any accounting policy or tax policy; or
(y) make an assignment for the benefit of creditors, decide to
subject the Company or any of its Subsidiaries to any proceedings under any
bankruptcy or insolvency law, decide to avail the Company or any of its
Subsidiaries of the benefit of legislation for the benefit of debtors, or take
steps to wind up or terminate the Company's or any of its Subsidiaries'
existence.
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The Company shall not give effect to any action by any Stockholder or any other
Person that is in contravention of this Section 9. The Bain Stockholders may
expressly condition any consent to an issuance or sale (or a redemption,
repurchase or other acquisition) of any shares of the Company's capital stock
upon being afforded two business days' notice prior to the consummation by the
Bain Stockholders of an exchange of any shares of Class A Common or Class B
Common for shares of Class B Common or Class A Common, respectively.
The provisions of this Section 9 shall not be given effect at such times, if
any, that a majority of the members of the board of directors of the Company are
comprised of Affiliates of Bain Stockholders.
10. Transfer. Prior to transferring any Stockholder Shares (other
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than a Public Sale, an Approved Sale or an Affiliated Approved Sale) to any
Person, the transferring Stockholder shall cause the prospective transferee to
be bound by this Agreement and to execute and deliver to the Company and the
other Stockholders a counterpart of this Agreement.
11. Definitions.
-----------
"Affiliate" means, when used with reference to a specified Person, any
---------
Person that directly or indirectly controls or is controlled by or is under
common control with the specified Person. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). With respect to any Person who is an individual, "Affiliates" shall
also include, without limitation, any member of such individual's Family Group.
It is understood and agreed that any portfolio company in which a Bain
Stockholder or any other Affiliate thereof which is a private equity fund holds
in excess of 30% of the outstanding capital stock is an "Affiliate" of such Bain
Stockholder for purposes of this Agreement, that any portfolio company in which
a Bear Xxxxxxx Stockholder or any other Affiliate thereof that invests primarily
in equity securities holds in excess of 30% of the outstanding capital stock is
an "Affiliate" of such Bear Xxxxxxx Stockholder for purposes of this Agreement,
and that any portfolio company in which the First Boston Stockholder or any
other Affiliate thereof that invests primarily in equity securities holds in
excess of 30% of the outstanding capital stock is an "Affiliate" of such First
Boston Stockholder for purposes of this Agreement.
"Bain Exit" means (i) a sale of all or substantially all of the
---------
consolidated assets of the Company to any Person other than the Bain
Stockholders or their Affiliates or (ii) the transfer or other disposition of
capital stock to any Person after giving effect to which the Bain Stockholders
and their Affiliates own less than 5% of the outstanding shares of capital stock
of the Company and any capital stock received in connection with an Organic
Change (as hereinafter defined) (in each case, whether by merger, consolidation,
sale of the Company's capital stock or otherwise).
"Bain Sale of the Company" means (i) a sale of all or substantially
------------------------
all of the consolidated assets of the Company to one or more of the Bain
Stockholders or their Affiliates, or (ii) the transfer or other disposition to
the Bain Stockholders or their Affiliates of outstanding shares
-11-
of capital stock of the Company (in each case, whether by merger, consolidation,
sale of the Company's capital stock or otherwise) such that after giving effect
to such transfer the Bain Stockholders and their Affiliates own all or
substantially all of the shares of the Company's capital stock (in each case,
whether by merger, consolidation, sale of the Company's capital stock or
otherwise).
"Independent Third Party" means any Person who, immediately prior to
-----------------------
the contemplated transaction, does not own in excess of 5% of the Common Stock
on a fully diluted basis, who is not controlling, controlled by or under common
control with any such 5% owner of the Common Stock and who is not the spouse or
descendant (by birth or adoption) of any such 5% owner of the Common Stock.
"Organic Change" means any recapitalization, reorganization,
--------------
reclassification, consolidation, merger, sale of all or substantially all of the
Company's assets or other transaction which is effected in such a way that
holders of Common Stock are entitled to receive (either directly or upon
subsequent liquidation) stock, securities or assets with respect to or in
exchange for Common Stock.
"Person" means an individual, a partnership, a corporation, a limited
------
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Pooling Dissolution Event" means the promulgation, adoption or
-------------------------
modification of any rules, interpretations or regulations by FASB or any other
governmental agency, the result of which is to cause the Company to no longer be
able to be a part of a business combination on any date after May 12, 2001 that
would qualify for pooling of interests accounting treatment.
"Public Sale" means any sale of Stockholder Shares to the public
-----------
pursuant to an offering registered under the Securities Act (a "Registered
----------
Offering") or at any time after a Registered Offering to the public through a
--------
broker, dealer or market maker pursuant to the provisions of Rule 144 adopted
under the Securities Act.
"Qualified Initial Public Offering" means the initial sale by the
---------------------------------
Company of any class or classes of the Common Stock in an offering registered
under the Securities Act, other than an offering made solely in connection with
a business acquisition or combination or an employee benefit plan, but only if
the aggregate gross proceeds received by the Company and/or its stockholders in
such initial sale or series of such sales in the aggregate are in excess of $50
million.
"Sale of the Company" means (i) a Bain Sale of the Company, or (ii) an
-------------------
Unaffiliated Sale of the Company.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time.
-12-
"Stockholder Shares" means (i) any Common Stock purchased or otherwise
------------------
acquired by any Stockholder, (ii) any capital stock or other equity securities
issued or issuable directly or indirectly with respect to the Common Stock
referred to in clause (i) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, and (iii) any other shares of any class or series of
capital stock of the Company held by a Stockholder. As to any particular shares
constituting Stockholder Shares, such shares shall cease to be Stockholder
Shares when they have been sold in a Public Sale.
"Subsidiary" means, with respect to any Person, any corporation,
----------
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the limited liability company, partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
the limited liability company, partnership, association or other business entity
gains or losses or shall be or control the managing member or general partner of
such limited liability company, partnership, association or other business
entity.
"Unaffiliated Sale of the Company" means (i) a sale of all or
--------------------------------
substantially all of the consolidated assets of the Company to any Person other
than the Bain Stockholders or their Affiliates, or (ii) the transfer or other
disposition to any Person other than the Bain Stockholders or their Affiliates
of more than 50% of the outstanding shares of capital stock of the Company (in
each case, whether by merger, consolidation, sale of the Company's capital stock
or otherwise).
12. Transfers in Violation of Agreement. Any Transfer or attempted
-----------------------------------
Transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Stockholder Shares as the owner
of such shares for any purpose.
13. Amendment and Waiver. Except as 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 modification, amendment, action or waiver (or any action with the
effect of amending, modifying or waiving) would adversely affect 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 Bear Xxxxxxx Stockholders or the First Boston Stockholders
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
-13-
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.
14. Severability. Whenever possible, each provision of this
------------
Agreement shall 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 shall not affect
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
15. Entire Agreement. Except as otherwise expressly set forth
----------------
herein, this Agreement 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.
16. Successors and Assigns. Except as otherwise provided herein,
----------------------
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares.
17. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
18. Remedies. The Company, the Bain Stockholders, the Bear Xxxxxxx
--------
Stockholders 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 Company, any of the Bain Stockholders, the Bear Xxxxxxx
Stockholders 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.
19. Notices. Any notice provided for in this Agreement shall be in
-------
writing and shall be either personally delivered, or sent by certified mailed
(return receipt requested) or sent by reputable overnight courier service
(charges prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the schedules hereto and to any subsequent
-14-
holder of Stockholder Shares subject to this Agreement at such address as
indicated by the Company's records, or at such address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party. Notices shall be deemed to have been given hereunder when
delivered personally, received by certified mail and one day after deposit with
a reputable overnight courier service. The Company's address is:
Integrated Circuit Systems, Inc.
0000 Xxxxxxxxx xx xxx Xxxxxxxx
Xxxxxx Xxxxx, XX 00000
Attn: Chairman of the Board
With copies to: (which shall not constitute notice to the Company)
--------------
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
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, P.C.
Xxxxxxx Xxxxxxx
20. Governing Law. The corporate law of the Commonwealth of
-------------
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
Agreement 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
-15-
Pennsylvania or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the Commonwealth of Pennsylvania.
21. Business Days. If any time period for giving notice or taking
-------------
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the state in which the Company's chief-executive office is located, the time
period shall automatically be extended to the business day immediately following
such Saturday, Sunday or legal holiday.
22. Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
23. Expenses. The Company agrees to pay, and hold each of the Bain
--------
Stockholders, the Bear Xxxxxxx Stockholders and the First Boston Stockholder
harmless against liability for the payment of, (i) its fees and expenses
(including its fees and expenses of its counsel and other advisors) arising in
connection with the preparation, execution, interpretation, administration, and
monitoring of, and enforcement of its rights under this Agreement and the Merger
Agreement and the other agreements, documents and instruments contemplated
hereby and thereby, and the consummation of the transactions contemplated hereby
and thereby, (ii) the fees and expenses incurred with respect to any amendments
or waivers (whether or not the same become effective) under or in respect of
such agreements, documents and (iii) stamp and other taxes and filing fees which
may be payable in respect of the execution and delivery of such agreements,
documents and instruments or the acquisition or conversion of Stockholder Shares
from time to time.
24. Certain Transactions with Bain. Following the date of the
------------------------------
consummation of the Merger, (i) the Company will not effect a Sale of the
Company to any portfolio company of the Bain Stockholders, and (ii) the Company
will not, and the Company will not permit any of its Subsidiaries to, agree to
consummate (or consummate) any non-material transaction that is not on an arms-
length basis or otherwise enter into or consummate any material transaction
whether or not on an arms-length basis with the Bain Stockholders or their
Affiliates, other than pursuant to agreements entered into on or prior to the
date hereof or agreed upon by the Non-Bain Directors, in each case unless such
transaction has been approved by the Non-Bain Directors (which for purposes of
this Section 24 shall include the vote of any director appointed by the Bear
Xxxxxxx Stockholders pursuant to the Voting Agreement).
25. Rights Granted to the Bain Stockholders, the Bear Xxxxxxx
---------------------------------------------------------
Stockholders, the First Boston Stockholder and their Affiliates. Any rights
---------------------------------------------------------------
granted to the Bain Stockholders, the Bear Xxxxxxx Stockholders, the First
Boston Stockholder or their Affiliates hereunder may also be exercised (in whole
or in part) by its designees (which may be Affiliates).
26. Further Assurances. In connection with any Sale of the Company
------------------
structured to achieve pooling of interest accounting treatment, the Stockholders
will take such actions as reasonably requested by the Board in order to achieve
and maintain pooling of interests accounting treatment.
-16-
27. Voting Agreement. Except as otherwise provided herein, from and
----------------
after the date hereof until the provisions of this Section 27 cease to be
effective, the First Boston Stockholder and its transferees shall vote all of
its Stockholder Shares and take all other necessary or desirable actions within
their control (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) as requested from time to time by the holders of a majority
of the voting shares of Common Stock. The provisions of this Section 27 shall
cease to be effective upon the earlier of the consummation of (i) a Qualified
Initial Public Offering, or (ii) a Bain Exit.
28. Construction. References herein to this Agreement and any other
------------
agreement shall be references to such agreement, as amended, modified,
supplemented or waived from time to time.
* * * * * *
-17-
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement on the day and year first above written.
COMPANY:
-------
INTEGRATED CIRCUIT SYSTEMS, INC.
By: /s/ Xxxx X. Xxx
----------------------------------
Name: Xxxx X. Xxx
Its: Chief Executive Officer
[Signature Page to Stockholders Agreement]
BAIN STOCKHOLDERS:
-----------------
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
------------------------------
Name: Xxxxxxx Xxxxxx
Its: Managing Director
BCIP TRUST ASSOCIATES II
By: /s/ Xxxxxxx Xxxxxx
------------------------------
BCIP TRUST ASSOCIATES II-B
By: /s/ Xxxxxxx Xxxxxx
------------------------------
BCIP ASSOCIATES II
By: /s/ Xxxxxxx Xxxxxx
------------------------------
A Partner
[Signature Page to Stockholders Agreement]
BAIN STOCKHOLDERS:
-----------------
BCIP ASSOCIATES II-B
By: /s/ Xxxxxxx Xxxxxx
------------------------------
A Partner
BCIP ASSOCIATES II-C
By: /s/ Xxxxxxx Xxxxxx
------------------------------
A Partner
PEP INVESTMENTS PTY LTD.
By: /s/ Xxxxxxx Xxxxxx
------------------------------
[Signature Page to Stockholders Agreement]
BAIN STOCKHOLDERS:
-----------------
XXXXXXXX STREET PARTNERS II
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Its: ______________________________
XXXXXXXX XXXXXX XXXXXXXX 0000
XXX, X.X.X.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Its: ______________________________
[Signature Page to Stockholders Agreement]
BAIN STOCKHOLDERS:
-----------------
BEAR XXXXXXX STOCKHOLDERS:
-------------------------
ICST ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Its: _______________________________
[Signature Page to Stockholders Agreement]
BAIN STOCKHOLDERS:
-----------------
FIRST BOSTON STOCKHOLDER:
------------------------
INTEGRATED CIRCUIT SYSTEMS EQUITY INVESTORS,
L.L.C.
By: /s/ ILLEGIBLE
-------------------------------
Its:
-------------------------------
[Signature Page to Stockholders Agreement]
SCHEDULE I
----------
Name and Address Number of Stockholder Shares
---------------- ----------------------------
Class A Class B Class L
Voting Non-voting Voting
--------- ---------- ---------
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
SCHEDULE II
-----------
Name and Address Number of Stockholder Shares
---------------- ------------------------------
Class A Class B Class L
Voting Non-voting Voting
--------- ---------- -------
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
SCHEDULE III
------------
Name and Address Number of Stockholder Shares
---------------- ----------------------------
Class A Class B Class L
Voting Non-voting Voting
------- ---------- -------
Integrated Circuit Systems Equity Investors, 225,000 -- 25,000
L.L.C.
c/o Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxx
SCHEDULE III
------------
Name and Address Number of Stockholder Shares
---------------- ----------------------------
Integrated Circuit Systems Equity Investors, 250,000
L.L.C.
c/o Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxx
