EXHIBIT 10.9
PIONEER SEMICONDUCTOR CORPORATION
SERIES C
PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES C PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is
made as of the 21 day of July, 1993 by and among Pioneer Semiconductor
Corporation, a California corporation (the "Company"), and each of those persons
who are set forth on the signature page hereof as purchasers of the Company's
Series C Preferred Stock hereunder (herein individually a "Purchaser" and
collectively, the "Purchasers")
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, the parties hereto agree as follows:
1. Authorization and Sale of Shares.
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1.1 Authorization of Shares. The Company shall on or before the
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Closing Date (as defined in Section 2 below) adopt and file with the Secretary
of State of the State of California the Restated Articles of Incorporation of
the Company (the "Restated Articles") in substantially the form attached hereto
as Exhibit A authorizing the issuance of 1,875,000 shares of Series C Preferred
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Stock of the Company, with the rights, preferences and privileges set forth
therein, and will authorize the issuance pursuant to this Agreement of said
1,875,000 shares of its Series C Preferred Stock, to be sold as set forth
herein. The 1,875,000 shares of Series C Preferred Stock to be sold hereunder
are sometimes referred to as the "Shares."
1.2 Sale of the Shares. Subject to the terms and conditions hereof,
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on the Closing Date (as defined in Section 2 below) the Company shall issue and
sell to each Purchaser, and each Purchaser severally, and not jointly, agrees to
purchase from the Company, the number of Shares specified below the name of each
such Purchaser on the signature page hereto at a purchase price of $1.60 per
share. The Company's agreement with each of the Purchasers hereunder is a
separate agreement and the sale and issuance of Shares to each of the Purchasers
are separate sales and issuances. The purchase price for the Shares hereunder
shall be paid by way of cash (or cash equivalent check) or by way of
cancellation of indebtedness to the extent the Company shall be indebted to a
Purchaser at the time of Closing.
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2. Closing Date Delivery
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2.1 First Closing Date. The first closing of the purchase and sale
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of the Shares pursuant to this Agreement shall be held at the offices of
Xxxxxxxx & Xxxxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx, at 10:00 a.m.
(P.D.T.) on July 21, 1993, or at such other time and place as the Company and a
majority in interest of the Purchasers purchasing Shares at such Closing may
agree in writing. The closing referred to in this Section 2.1 is hereinafter
referred to as the "First Closing Date" or "Closing Date."
2.2 Subsequent Closings. Following the First Closing and until such
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time as the Company shall have issued and sold all of the 1,875,000 shares of
Series C Preferred Stock described in subsection 1.1 above, the Company shall
have the fight, subject to the terms and conditions hereof, to issue and sell
Shares to existing Purchasers and to additional persons who the Company shall be
authorized to add to and include in the Schedule of Purchasers, in such amounts
as the Company and such Purchasers shall agree. Any additional person added to
the Schedule of Purchasers shall: (i) be deemed a "Purchaser" for all purposes
of this Agreement; and (ii) be required to execute this Agreement and that
certain Second Amended Investors Rights Agreement in the form attached hereto as
Exhibit C (the "Investors Rights Agreement") as a condition to the purchase of
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Shares hereunder. The closing of the purchase and sale of additional Shares
pursuant to this Section 2.2 shall be held at such time and place as the Company
and such additional Purchasers may agree in writing. Any such closing referred
to in this Section 2.2 is hereinafter referred to as a "Subsequent closing" or
"Closing" and the date of a Subsequent Closing is hereinafter referred to as a
"Subsequent Closing Date" or "Closing Date."
2.3 Delivery. Subject to the terms of this Agreement, at each
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Closing, the Company shall deliver to each Purchaser a certificate representing
the number of Shares to be purchased by that Purchaser from the Company at such
Closing, against payment of the purchase price therefor by way of (i) a check
payable to the order of the Company, (ii) wire transfer of immediately available
funds, (iii) cancellation of indebtedness to the extent the Company shall be
indebted to such Purchaser, or (iv) a combination of the foregoing.
3. Representations and Warranties of the Company. Except as set forth
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in the Schedule of Exceptions attached hereto as Exhibit B (the "Schedule of
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Exceptions"), the Company hereby represents and warrants to each Purchaser that:
3.1 Organization and Standing. The Company is a corporation duly
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organized and validly existing under, and by virtue of, the laws of the State of
California and is in good standing under such laws.
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3.2 Capitalization. The authorized capital stock of the Company is
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or will be upon filing of the Restated Articles of Incorporation: 50,000,000
shares of Common Stock, of which 3,885,313 shares are issued and outstanding;
and 20,000,000 shares of Preferred Stock, of which 5,200,000 shares are
designated Series A Preferred Stock, all of which shares are issued and
outstanding, 4,000,000 shares are designated Series B Preferred Stock, 2,150,000
of which are issued and outstanding and 1,875,000 shares are designated Series C
Preferred Stock, of which no Shares are issued and outstanding. All such issued
and outstanding shares have been duly authorized and validly issued and are
fully paid and nonassessable. The rights, preferences and privileges of the
Preferred Stock will be as set forth in the Restated Articles. The Company has
reserved 5,200,000 shares of its Common Stock for issuance upon the conversion
of the Series A Preferred Stock, 4,000,000 shares of its Common Stock for
issuance upon the conversion of the Series B Preferred Stock, and 2,737,187
shares of its Common Stock for issuance to key employees, officers, directors
and consultants of the Company as may be determined from time to time by the
Company's Board of Directors. Except for (i) the conversion privileges of (a)
the outstanding shares of Series A Preferred Stock and Series B Preferred Stock
and (b) the shares of Series C Preferred Stock to be issued under this
Agreement, (ii) options to purchase an aggregate of 1,223,313 shares of the
Company's Common Stock issued to one director and twenty-eight employees
pursuant to the Company's 1990 Stock Plan, (iii) the rights provided in the
Investors Rights Agreement, and (iv) as set forth in the Schedule of Exceptions,
there are no options, warrants, conversion privileges or other rights, or
agreements with respect to the issuance thereof, presently outstanding to
purchase any of the authorized but unissued stock of the Company. All such
outstanding securities of the Company were issued in compliance with all
applicable federal and state securities laws. The holders of record of the
presently issued and outstanding shares of Common Stock, Series A Preferred
Stock and Series B Preferred Stock of the Company are as set forth in the
Schedule of Exceptions.
3.3 Authorization. All corporate action on the part of the Company,
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its officers, directors and shareholders, necessary for the sale arid issuance
of the Shares pursuant hereto (and of the shares of Common Stock issuable upon
conversion of the Shares) and the performance of the Company's obligations
hereunder has been taken or will be taken prior to the Closing. This Agreement
is a valid and binding obligation of the Company enforceable in accordance with
its terms. Except as set forth in the Schedule of Exceptions, the Shares are not
subject to any preemptive rights or rights of first refusal.
3.4 Financial Statements. The Company has delivered to each
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Investor its audited financial statements dated June 30, 1992 and its unaudited
internal financial statements for the eleven-month period ended May 31, 1993
(the "Financial Statements"). The Financial Statements are complete and correct
in all material respects and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods indicated and with each other. The Financial Statements accurately set
out and describe the financial condition and operating results of the Company as
of the dates, and for the periods, indicated therein, subject to normal year-end
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audit adjustments. Except as set forth in the Financial Statements, the Company
has no liabilities, contingent or otherwise, other than (i) liabilities incurred
in the ordinary course of business subsequent to May 31, 1993 and (ii)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under generally accepted accounting principles to be
reflected in the Financial Statements, which, individually or in the aggregate,
are not material to the financial condition or operating results of the Company.
The Company maintains and will continue to maintain a standard system of
accounting established and administered in accordance with generally accepted
accounting principles.
3.5 Title to Properties and Assets. The Company has good and
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marketable title to its properties and assets held in each case subject to no
mortgage, pledge, lien, encumbrance or charge of any kind.
3.6 Patents. The Company has sufficient title and ownership of all
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patents, trademarks, service marks, trade names, copyrights, trade secrets,
information, proprietary rights and processes necessary for its business as now
conducted and as proposed to be conducted without any known conflict with or
infringement of the rights of others. There are no outstanding options,
licenses, or agreements of any kind relating to the foregoing, and the Company
is not a party or bound by any options, licenses or agreements with respect to
the patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, proprietary rights and processes of any other person or entity.
Neither the Company nor any of its employees have received any communications
alleging that the Company has violated or, by conducting its business as
proposed, would violate any of the patents, trademarks, service marks,
tradenames, copyrights or trade secrets or other proprietary rights of any other
person or entity. The Company is not aware that any of the employees of the
Company are obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would conflict with
his obligation to use his best efforts to promote the interests of the Company
or that would conflict with the Company's business as proposed to be conducted.
Neither the execution nor delivery of this Agreement, nor the carrying on of the
Company's business by the employees of the Company, nor the conduct of the
Company's business as proposed, will, to the best of the Company's knowledge,
conflict with or result in a breech of the terms, conditions or provisions of,
or constitute a default under, any contract, covenant or instrument under which
any of such employees is now obligated.
3.7 Material Conflicts and Obligations. Set forth in the Schedule
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of Exceptions is a list of all agreements, contracts, indebtedness, liabilities
and other obligations to which the Company is a party or by which it is bound
that are (i) material to the conduct and operations of its business and
properties; (ii) involve any of the officers, consultants, directors, employees
or shareholders of the Company; or (iii) obligate the Company to share, license
or develop any product or technology. Copies of such agreements and contracts
and documentation evidencing such liabilities and other obligations have been
made available for inspection by the Purchasers. All of such agreements and
contracts are valid, binding and in
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full force and effect in all material respects. All present employees have
executed and all other employees of the Company have executed or will execute
the Company's standard "Proprietary Information and Inventions Agreement"
concerning nondisclosure of confidential information and assignment of
inventions to the Company in the form made available to the Purchasers.
3.8 Litigation. There are no actions, proceedings or investigations
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pending or, to the best of the Company's knowledge and belief, any basis
therefor or threat thereof, against or affecting the Company, that, either in
any case or in the aggregate, might result in any material adverse change in the
business, prospects, condition, affairs or operations of the Company or in any
of its properties or assets, in any material impairment of the right or ability
of the Company to carry on its business as now conducted or as proposed to be
conducted, or in any change in the current equity ownership of the Company, and
none that questions the validity of this Agreement or any action taken or to be
taken in connection herewith.
3.9 Validity. The Shares to be purchased and sold pursuant to this
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Agreement (and the shares of Common Stock issuable upon conversion of the
Shares), when issued, sold and delivered in accordance with the terms and for
the consideration expressed herein, shall be duly and validly issued, fully paid
and nonassessable, and will be free and clear of any liens or encumbrances
caused or created by the Company, except that the Shares may be subject to
restrictions on transfer described in the Schedule of Exceptions hereto under
state and/or federal securities laws as set forth herein or as otherwise
required at the time a transfer is proposed.
3.10 Governmental Consents. All consents, approvals, orders,
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authorizations or registrations, qualifications; designations, declarations or
filings with any U.S. federal or state governmental authority on the part of the
Company required in connection with the consummation of the transactions
contemplated herein shall have been obtained prior to and be effective as of the
Closing. Based in part on the representations of the Purchasers set forth in
Section 4 below, the offer, sale and issuance of the Shares in conformity with
the terms of this Agreement are exempt from the registration and prospectus
delivery requirements of the Securities Act of 1933, as amended (the "Securities
Act").
3.11 Compliance with Other Instruments. The Company is not in, nor
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will the conduct of its business as proposed to be conducted result in any,
violation, breach or default of any term of the Restated Articles or its Bylaws,
or in any material respect of any term or provision of any mortgage, indenture,
contract, agreement or instrument to which the Company is a party, or, to its
knowledge, of any provision of any foreign or domestic state or federal
judgment, decree, order, statute, rule or regulation applicable to or binding
upon the Company. The execution, delivery and performance of and compliance with
this Agreement, and the issuance of the Shares pursuant hereto (and any shares
of Common Stock issuable upon conversion of the Shares) will not result in any
such violation or be in conflict with or constitute a default under any such
term.
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3.12 Disclosure. No representation or warranty by the Company in
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this Agreement or any statement or certificate furnished or to be furnished to
the Purchasers pursuant hereto or in connection with the transactions
contemplated hereby contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading.
3.13 Registration Rights. Except as contained in the Investors
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Rights Agreement, the Company will not, as of the Closing, be under any
obligation, including any "piggy back" obligation, to register (as defined in
the Investors Rights Agreement) any of its presently outstanding securities or
any of its securities that may hereafter be issued.
4. Representations and Warranties of the Purchasers. Each Purchaser,
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severally and not jointly, represents and warrants to the Company that:
4.1 Authorization. All action on the part of Purchaser necessary
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for the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby has been taken and,
assuming due execution and delivery by the Company, when executed and delivered
by Purchaser, this Agreement will constitute a legal, valid, binding and
enforceable obligation of Purchaser.
4.2 Experience. Purchaser has substantial experience in evaluating
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and investing in private placement transactions of securities in companies
similar to the Company so that it is capable of evaluating the merits and risks
of its investment in the Company and has the capacity to protect its own
interests.
4.3 Investment. Purchaser is acquiring the Shares (and the Common
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Stock issuable upon conversion thereof) for investment for its own account, not
as a nominee or agent, and not with the view to, or for resale in connection
with, any distribution thereof. Purchaser understands that the Shares (and the
Common Stock issuable upon conversion thereof) have not been, and will not be,
registered under the Securities Act of 1933, as amended (the "Securities Act")
by reason of a specific exemption from the registration provisions of the
Securities Act, the availability of which depends upon, among other things, the
bona fide nature of the investment intent and the accuracy of such Purchaser's
representations as expressed herein.
4.4 Rule 144. Purchaser acknowledges that the Shares (and the
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Common Stock issuable upon conversion thereof) must be held indefinitely unless
subsequently registered under the Securities Act or unless Purchaser avails
itself of an available exemption from such registration requirements. Purchaser
is aware of the provisions of Rule 144 promulgated under the Securities Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, the
existence of a public market for the Shares, the availability of certain current
public information about the Company, the resale occurring not
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less than two years after a party has purchased and paid for the securities to
be sold, the sale being effected through a "broker's transaction" or in
transactions directly with a "market maker" and the number of shares being sold
during any three-month period not exceeding specified limitations.
4.5 No Public Market. Purchaser understands that no public market
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now exists for any of the securities issued by the Company and that the Company
has made no assurances that a public market will ever exist for the Company's
securities.
4.6 Access to Data. Purchaser has had an opportunity to discuss the
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Company's business, management and financial affairs with the Company's
management and has also had an opportunity to ask questions of the Company's
officers, which questions were answered to its satisfaction.
4.7 Restrictions on Transfers. Purchaser agrees that in no event
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will it make a transfer or disposition of any of the Shares (or any Common Stock
issued upon conversion thereof) (other than pursuant to an effective
registration statement under the Securities Act), unless and until (i) Purchaser
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a statement of the circumstances surrounding the
disposition, and (ii) if requested by the Company, at the expense of Purchaser
or transferee, Purchaser shall have furnished to the Company an opinion of
counsel, reasonably satisfactory to the Company, to the effect that such
transfer may be made without registration under the Securities Act.
4.8 Due Diligence. The Purchaser has been solely responsible for
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the Purchaser's "due diligence" investigation of the Company and its management
and business, for the analysis of the merits and risks of this investment and of
the fairness and desirability of the terms of the investment; that in taking any
action or performing any role relative to the arranging of the proposed
investment, such Purchaser has acted solely in the Purchaser's interest, and
that neither the Purchaser nor any of its agents or employees has acted as an
agent of the Company, or as an issuer, underwriter, broker, dealer or investment
advisor relative to any of the Securities.
5. California Commissioner of Corporations; SEC.
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5.1 Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE
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THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATION OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH
QUALIFICATION IS UNLAWFUL UNLESS AN EXEMPTION FROM SUCH QUALIFICATION IS
AVAILABLE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITION
UPON SUCH QUALIFICATION BEING OBTAINED OR SUCH EXEMPTION BEING AVAILABLE.
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5.2 Restrictive Legends.
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(1) Each certificate representing (i) the Shares, (ii) shares
of Common Stock issuable upon conversion of the Shares, and (iii) any other
securities issued in respect of the Shares upon any stock split, stock
dividend, recapitalization, merger or similar event (collectively, the
"Securities") (unless no longer required in the opinion of counsel for the
Company) shall be stamped or otherwise imprinted with a legend substantially in
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES AS OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT COVERING SUCH
SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144
OR ITS SUCCESSOR RULE UNDER THE ACT, OR THE COMPANY
RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE."
(2) Each certificate representing the Securities shall also
bear any legend required by any applicable state securities law. The Company
need not register a transfer of the Securities, unless the conditions specified
in the foregoing legends are satisfied. The Company may also instruct its
transfer agent not to register the transfer of any of the Securities unless the
conditions specified in the foregoing legends are satisfied.
(3) Removal of Legends and Transfer Restrictions. The legend
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relating to the Securities Act endorsed on a stock certificate pursuant to
paragraph 5.2(a) of this Agreement and the stop transfer instructions with
respect to the Securities represented by such certificate shall be removed and
the Company shall issue a certificate without such legend to the holder of such
Securities if such Securities are registered under the Act and a prospectus
meeting the requirements of Section 10 of the Act is available or if such
holder provides to the Company an opinion of counsel for such holder of the
Securities reasonably satisfactory to the Company, or a no-action letter or
interpretive opinion of the staff of the Securities and Exchange Commission
(the "Commission") to the effect that a public sale, transfer or assignment of
such Securities may be made without restriction and without compliance with any
restriction such as Rule 144.
6. Conditions to Purchaser's Obligations at the Closing. The
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obligation of each Purchaser to purchase the Shares at the Closing is subject
to the fulfillment to the satisfaction of such Purchaser on or prior to the
Closing Date of the following conditions, any of which may be waived in whole
or in part by such Purchaser:
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6.1 Representations and Warranties Correct: Performance of
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Obligations. The representations and warranties made by the Company in Section 3
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hereof shall be true and correct when made, and shall be true and correct on the
Closing Date with the same force and effect as if they had been made on and as
of said date, subject to changes contemplated by this Agreement; and the Company
shall have performed all obligations and conditions herein required to be
performed or observed by it on or prior to the Closing Date.
6.2 State Securities Laws. The Company shall have complied with
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the qualification or exemption requirements of applicable state securities laws.
6.3 Restated Articles. The Company shall have duly adopted and
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filed the Restated Articles with the Secretary of State of the State of
California.
6.4 Opinion of Company's Counsel. Each of the Purchasers shall
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have received from Xxxxxxxx & Xxxxxxxx, counsel to the Company, a favorable
opinion addressed to such Purchaser, dated the Closing Date and in form and
substance reasonably satisfactory to the Purchasers and their counsel, as to the
matters stated in Sections 3.1, 3.2, (the fifth sentence thereof to the best of
counsel's knowledge), 3.3, 3.8 (to the best of counsel's knowledge), 3.9, 3.10
and 3.11 (to the best of counsel's knowledge).
6.5 Compliance Certificate. At the Closing there shall have been
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delivered to each of the Purchasers a certificate, dated the Closing Date,
signed by the Company's President certifying that the conditions specified in
Section 6.1 have been fulfilled.
6.6 Proceedings and Documents. All corporate and other proceedings
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in connection with the transactions contemplated at the Closing and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchasers, and the Purchasers shall
have received all such counterpart originals or certified or other copies of
such documents as they may reasonably request.
6.7 Consents and Waivers. The Company shall have obtained any and
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all consents and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement which need to be obtained prior to
the Closing.
6.8 Investors Rights Agreement. The Company shall have entered
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into the Investors Rights Agreement with each Purchaser.
7. Conditions to Company's Obligations. The obligations of the Company
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to each Purchaser at the Closing under this Agreement are subject to the
fulfillment by that Purchaser on or before the Closing Date of each of the
following conditions:
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7.1 Representations and Warranties: Performance of Obligations. The
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representations and warranties of each of the Purchasers contained in Section 4
hereof shall be true as of the Closing Date; and the Purchasers shall have each
performed all obligations and conditions herein required to be performed or
observed by them on or prior to the Closing Date.
7.2 Restated Articles. The Restated Articles shall have been filed
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with the Secretary of State of the State of California.
7.3 Payment of Purchase Price. The Purchaser shall have delivered
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to the Company the purchase price for the Shares to be purchased thereby under
this Agreement.
7.4 Consents and Waivers. The Company shall have obtained any and
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all consents and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement which need to be obtained prior to
the Closing.
8. Miscellaneous.
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8.1 Governing law. This Agreement shall be governed in all respects
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by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
8.2 Survival. The representations, warranties, covenants and
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agreements made herein shall survive any investigation made by any Party hereto
and the closing of the transactions contemplated hereby.
8.3 Successors and Assigns. Except as otherwise expressly provided
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herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto whose rights or obligations hereunder are affected by such
amendments.
8.4 Entire Agreement. This Agreement and the other documents and
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agreements delivered pursuant hereto constitute the entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
8.5 Notices. Except as otherwise provided, all notices and other
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communications required or permitted hereunder shall be in writing and shall be
mailed by first class mail, postage prepaid, addressed (a) if to the Purchaser,
at the Purchaser's address set forth below its signature, or at such other
address as the Purchaser shall have furnished to the Company in writing, or (b)
if to any other holder of any of the Shares or other securities issued with
respect thereto, at such address such holder shall have furnished the Company in
writing, or until any such holder furnishes an address to the Company, then to
and at the address of the last holder of such securities who has so furnished an
address to the Company,
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or (c) if to the Company, at its address set forth below, or at such other
address as the Company shall have furnished to the Purchaser in writing.
8.6 Amendments and Waivers. Any term of this Agreement may be
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amended and the observance of any term of the Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the holders of at
least seventy-five percent (75%) of the outstanding Shares (including, for such
purposes, on a proportional basis, any shares of Common Stock into which any of
the Shares have been converted that have not been sold to the public). Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any securities purchased under this agreement at the time
outstanding (including securities into which such securities have been
converted), each future holder of all such securities, and the Company.
8.7 Delays or Omissions. No delay or omission to exercise any
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right, power or remedy accruing to the Company or to any holder of any
securities issued or to be issued hereunder, upon any breach or default of any
party hereto under this Agreement, shall impair any such right, power or remedy
of the Company or such holder nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of any similar breach of
default thereafter occurring; nor shall any waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of the Company or any holder of
any breach or default under this Agreement or any waiver on the part of the
company or any holder of any provisions or conditions of this Agreement, must be
in writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement, or by law or otherwise
afforded to the Company or any holder, shall be cumulative and not alternative.
8.8 Expenses. The Company and each Purchaser shall bear their own
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expenses and legal fees incurred on their behalf with respect to the
negotiation, execution, delivery and performance of this Agreement and the
transactions contemplated hereby.
8.9 Legal Fees. In the event of any action at law, suit in equity
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or arbitration proceeding in relation to this Agreement or any Shares or other
securities of the Company issued or to be issued, the prevailing party, or
parties, shall be paid by the other party or parties a reasonable sum for
attorney's fees and expenses for such prevailing party or parties.
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8.10 Finder's Fees.
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(1) The Company (i) represents and warrants that it has
retained no finder or broker in connection with the transactions contemplated by
this Agreement and (ii) hereby agrees to indemnify and to hold each Purchaser
harmless of and from any liability for commission or compensation in the nature
of a finder's fee of any broker or other person or firm (and the costs and
expenses of defending against such liability or asserted liability) for which
the Company, or any of its employees or representatives, are responsible.
(2) Each Purchaser (i) represents and warrants that it has
retained no finder or broker in connection with the transactions contemplated by
this Agreement and (ii) hereby agrees to indemnify and to hold the Company
harmless of and from any liability for any commission or compensation in the
nature of a finder's fee to any broker or other person or firm (and the costs
and expenses of defending against such liability or asserted liability) for
which such Purchaser, or any of its employees or representatives, are
responsible.
8.11 Titles and Subtitles. The titles of the paragraphs and
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subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
8.12 Counterparts. This Agreement may be executed in any number
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of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
8.13 Severability Should any provision of this Agreement be
------------
determined to be illegal or unenforceable, such determination shall not affect
the remaining provisions of this Agreement.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
PIONEER SEMICONDUCTOR CORPORATION PURCHASERS:
By: /s/ Xxxx X. Xxx
-------------------------------- -------------------------------
Xxxx X. Xxx, President Name:
No. of Shares:
-----------------
Address:
-------------------------------
-------------------------------
-------------------------------
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
PIONEER SEMICONDUCTOR CORPORATION PURCHASERS:
By: /s/ Xxxx X. Xxx /s/ ????
--------------------------------- -------------------------------
Xxxx X. Xxx, President Name:
No of Shares:
------------------
Address:
Chye Xxxx Xxxxxxx (PTE) Ltd.
-------------------------------
Xx. 00 Xxxx Xxxx
-------------------------------
Singapore, 0820
-------------------------------
Tel: 0000000/5
-------------------------------
Fax: 0000000
-------------------------------
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
PIONEER SEMICONDUCTOR CORPORATION PURCHASERS:
By: /s/ Xxxx X. Xxx Xxx Shakmer
--------------------------------- -------------------------------
Xxxx X. Xxx, President Name:
No of Shares: 312.500
------------------
Address:
12-1 F.261.SECI
-------------------------------
Tunhwas Road
-------------------------------
Taipei Taiwan
-------------------------------
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
PIONEER SEMICONDUCTOR CORPORATION PURCHASERS:
By: /s/ Xxxx X. Xxx Xxx Xxxx Xxxxxx
--------------------------------- -------------------------------
Xxxx X. Xxx, President Name:
No of Shares: 312.500
------------------
Address:
00-0 X.000.XXXX
-------------------------------
Xxxxxxx Xxxx
-------------------------------
Xxxxxx, Xxxxxx
-------------------------------
16
