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EXHIBIT 2.1
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COMMON STOCK PURCHASE AGREEMENT
BY AND AMONG
INTEGRATED SILICON SOLUTION, INC.,
INTEGRATED SILICON SOLUTION (TAIWAN) INC.
AND
THE PURCHASERS NAMED HEREIN
June 19, 1998
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TABLE OF CONTENTS
PAGE
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SECTION 1 - Sale of Common Stock......................................................................................1
1.1 Authorization.......................................................................................1
1.2 Sale of Shares......................................................................................1
SECTION 2 - Closing; FIA Approval.....................................................................................1
2.1 Closing Date........................................................................................1
2.2 Delivery............................................................................................1
2.3 Purchase Price......................................................................................2
2.4 Applying for FIA Approval...........................................................................2
SECTION 3 - Representations and Warranties of ISSI-Taiwan.............................................................2
3.1 Organization and Standing; Articles and of Incorporation............................................2
3.2 Corporate Power.....................................................................................2
3.3 Subsidiaries........................................................................................2
3.4 Capitalization......................................................................................2
3.5 Authorization.......................................................................................3
3.6 Financial Statements................................................................................3
3.7 Material Liabilities................................................................................3
3.8 Title to Properties and Assets; Liens, etc..........................................................3
3.9 Litigation..........................................................................................3
3.10 Governmental Consent................................................................................3
3.11 No Finder's Fee.....................................................................................3
SECTION 4 - Representations and Warranties of ISSI-U.S................................................................4
4.1 Good Title..........................................................................................4
4.2 Corporate Power.....................................................................................4
4.3 Authorization.......................................................................................4
4.4 Governmental Consent................................................................................4
4.5 No Finder's Fee.....................................................................................4
SECTION 5 - Representations and Warranties of the Purchasers..........................................................5
5.1 Experience..........................................................................................5
5.2 No Public Market....................................................................................5
5.3 Access to Data......................................................................................5
5.4 Authorization.......................................................................................5
5.5 Governmental Consent................................................................................5
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5.6 No Finder's Fee.....................................................................................5
5.7 Investor Counsel....................................................................................5
5.8 Tax Liability.......................................................................................6
SECTION 6 - Conditions to Closing of Purchasers.......................................................................6
6.1 Representations and Warranties Correct..............................................................6
6.2 Opinion of ISSI-U.S. Counsel........................................................................6
6.3 Opinion of ISSI-Taiwan Counsel......................................................................6
6.4 FIA Approval........................................................................................6
SECTION 7 - Conditions to Closing of ISSI-U.S.........................................................................6
7.1 Representations.....................................................................................6
7.2 FIA Approval........................................................................................6
SECTION 8 - Affirmative Covenants of ISSI-Taiwan......................................................................7
8.1 Financial Information...............................................................................7
8.2 Assignment of Rights to Financial Information.......................................................7
8.3 Board of Directors..................................................................................7
8.4 Board of Supervisors................................................................................8
8.5 Termination of Covenants............................................................................8
SECTION 9 - Right of First Refusal....................................................................................8
9.1 Right of First Refusal..............................................................................8
SECTION 10 - Miscellaneous............................................................................................9
10.1 Employee Shares-- ISSI-Taiwan.......................................................................9
10.2 Employee Shares-- ISSI-U.S.........................................................................10
10.3 Governing Law......................................................................................10
10.4 Successors and Assigns.............................................................................10
10.5 Entire Agreement...................................................................................10
10.6 Amendment..........................................................................................10
10.7 Notices............................................................................................10
10.8 Expenses...........................................................................................11
10.9 Counterparts.......................................................................................11
10.10 Severability.......................................................................................11
10.11 Titles and Subtitles...............................................................................11
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EXHIBITS
A. Schedule of Purchasers
B. Exceptions to Representations and Warranties
C. Form of Legal Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
D. Form of Legal Opinion of Alliance International Law Offices
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INTEGRATED SILICON SOLUTION, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "AGREEMENT") is made as of
June 19, 1998 among Integrated Silicon Solution, Inc., a Delaware corporation
("ISSI-U.S."), Integrated Silicon Solution (Taiwan) Inc., a Taiwan corporation
and a wholly owned subsidiary of ISSI-U.S. ("ISSI-TAIWAN"), and the persons and
entities listed on the Schedule of Purchasers attached hereto as Exhibit A
(the "PURCHASERS").
SECTION 1
SALE OF COMMON STOCK
1.1 AUTHORIZATION. ISSI-U.S. has authorized the sale to the Purchasers
of up to 48,000,000 shares (the "SHARES") of ISSI-Taiwan Common Stock (the
"COMMON").
1.2 SALE OF SHARES. Subject to the terms and conditions hereof,
ISSI-U.S. hereby severally sells to each Purchaser and each Purchaser hereby
severally buys from ISSI-U.S. the total number of Shares specified opposite such
Purchaser's name on the Schedule of Purchasers, at a purchase price of $NT24.00
per Share, for the aggregate purchase price for each Purchaser as set forth on
the Schedule of Purchasers. ISSI-U.S.'s agreement with each Purchaser is a
separate agreement, and the sale of the Shares to each Purchaser is a separate
sale.
SECTION 2
CLOSING; FIA APPROVAL
2.1 CLOSING DATE. The closing of the purchase and sale of the Shares
hereunder shall be held at the offices of ISSI-Taiwan, IF, #▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
II, Science-based Industrial Park, Hsin-Chu, Taiwan, Republic of China, at 10:00
a.m., local time, on June 19, 1998 (the "CLOSING") or at such other time and
place as shall be mutually agreed upon by ISSI-U.S. and Purchasers who propose
to purchase a majority of the Shares proposed to be sold at the Closing (the
date of the Closing is hereinafter referred to as the "CLOSING DATE").
2.2 DELIVERY. At the Closing, ISSI-U.S. will deliver or cause to be
delivered to ISSI-Taiwan or Grand Cathay, ISSI-Taiwan's transfer agent (the
"TRANSFER AGENT"), a certificate or certificates, duly endorsed by ISSI-U.S. for
transfer to the Purchasers, representing the aggregate number of Shares listed
on the Schedule of Purchasers, against delivery to ISSI-U.S. of payment of the
purchase price therefor in the manner described in Section 2.3 hereof. Within
thirty (30) days following the Closing, ISSI-Taiwan or the Transfer Agent will
deliver or cause to be delivered to each Purchaser a certificate or
certificates, registered in such Purchaser's name, representing the number of
shares listed opposite such Purchaser's name on the Schedule of Purchasers.
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2.3 PURCHASE PRICE. In consideration of the purchase and sale of the
Shares described above, each Purchaser shall pay ISSI-U.S. by check payable to
ISSI-U.S. or wire transfer per ISSI-U.S.'s instructions, the aggregate purchase
price for such Purchaser as set forth on the Schedule of Purchasers (the
"PURCHASE PRICE") after obtaining the FIA Approval (as defined in Section 2.4
below), but not later than the Closing Date. Seller shall be responsible for
ensuring that an amount equal to 0.3% of the Purchase Price representing the
applicable securities transaction tax will be paid over to the tax authorities
of the Republic of China as required by the laws of the Republic of China.
2.4 APPLYING FOR FIA APPROVAL. In order to effect the transfer of
Shares, ISSI-U.S. and each Purchaser shall jointly file a foreign investment
application ("FIA") with Hsinchu Science-Based Industry Park Administration
("SBIPA"), seeking SBIPA's approval for ISSI-U.S. to transfer a portion of its
investment in ISSI-Taiwan and for Purchasers to make investment in ISSI-Taiwan
(the "FIA APPROVAL"). Purchaser shall, upon the request of ISSI-U.S., execute
such documents and take such actions as may be reasonably necessary for
obtaining the FIA Approval.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF ISSI-TAIWAN
Except as set forth on the Schedule of Exceptions attached hereto as
Exhibit B, ISSI-Taiwan represents and warrants to the Purchasers as follows:
3.1 ORGANIZATION AND STANDING; ARTICLES AND OF INCORPORATION.
ISSI-Taiwan is a corporation duly organized and existing under, and by virtue
of, the laws of the Republic of China and is in good standing under such laws.
ISSI-Taiwan has requisite corporate power and authority to own and operate its
properties and assets, and to carry on its business as presently conducted.
ISSI-Taiwan has furnished the Purchaser's or its special counsel with copies of
its Articles of Incorporation. Said copies are true, correct and complete and
contain all amendments through the Closing Date.
3.2 CORPORATE POWER. ISSI-Taiwan has or will have at the Closing Date
all requisite legal and corporate power and authority to execute and deliver
this Agreement and to carry out and perform its obligations under the terms of
this Agreement.
3.3 SUBSIDIARIES. ISSI-Taiwan has no subsidiaries or affiliated
companies and does not otherwise own or control, directly or indirectly, any
equity interest in any corporation, association or business entity.
3.4 CAPITALIZATION. The authorized capital stock of ISSI-Taiwan
consists of 120,000,000 shares of Common Stock, of which 120,000,000 shares are
issued and outstanding and, prior to the Closing, are held of record by
ISSI-U.S. The outstanding shares have been duly authorized and validly issued,
and are fully paid and nonassessable. Except as set forth on Exhibit B, there
are no options, warrants or other rights to purchase any of ISSI-Taiwan's
authorized and unissued capital stock.
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3.5 AUTHORIZATION. All corporate action on the part of ISSI-Taiwan, its
directors and shareholders necessary for the authorization, execution, delivery
and performance of this Agreement by ISSI-Taiwan and the performance of all of
ISSI-Taiwan's obligations hereunder has been taken or will be taken prior to the
Closing. This Agreement, when executed and delivered by ISSI-Taiwan, shall
constitute a valid and binding obligation of ISSI-Taiwan, enforceable in
accordance with its terms, and subject to laws of general application relating
to bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies.
3.6 FINANCIAL STATEMENTS. ISSI-Taiwan has delivered to each Purchaser
its unaudited Balance Sheet and Statement of Operations for the period ended
March 31, 1998 (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, except that they do
not contain footnotes. The Financial Statements accurately set out and describe
the financial condition and operating results of ISSI-Taiwan as of the dates,
and during the periods, indicated therein. Since March 31, 1998, there has not
been any change in the assets, liabilities, financial condition or operations of
ISSI-Taiwan from that reflected in the Financial Statements, except changes in
the ordinary course of business which have not been, either in any case or in
the aggregate, materially adverse.
3.7 MATERIAL LIABILITIES. ISSI-Taiwan has no material liabilities or
obligations, absolute or contingent (individually or in the aggregate), except
(i) the liabilities and obligations set forth in the Financial Statements and
(ii) liabilities and obligations which have been incurred subsequent to March
31, 1998 in the ordinary course of business which have not been, either in any
case or in the aggregate, materially adverse.
3.8 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. ISSI-Taiwan has good
and marketable title to its properties and assets, and has good title to all its
leasehold interests.
3.9 LITIGATION. There are no actions, suits, proceedings or
investigations pending against ISSI-Taiwan or its properties before any court or
governmental agency.
3.10 GOVERNMENTAL CONSENT. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the part
of ISSI-Taiwan is required in connection with the valid execution and delivery
of this Agreement, or the sale of the Shares as contemplated hereby.
3.11 NO FINDER'S FEE. ISSI-Taiwan has retained no finder or broker in
connection with the transactions contemplated by this Agreement and hereby
agrees to indemnify and hold the Purchasers and ISSI-U.S. 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 ISSI-Taiwan, or any of
its employees or representatives, is responsible.
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SECTION 4
REPRESENTATIONS AND WARRANTIES OF ISSI-U.S.
ISSI-U.S. represents and warrants to the Purchasers with respect to the
Shares of ISSI-Taiwan to be sold by ISSI-U.S. as follows:
4.1 GOOD TITLE. The sale of the Shares by ISSI-U.S. to the Purchasers
will transfer good and marketable title to each Purchaser of the number of
Shares set forth opposite such Purchaser's name on the Schedule of Purchasers,
and immediately upon the sale of the Shares by ISSI-U.S. to the Purchasers, the
Purchasers will acquire the full right, power and authority to sell, assign,
transfer and deliver such Shares free and clear of all voting trust
arrangements, liens, encumbrances, equities, security interests, restrictions
and claims whatsoever, other than restrictions set forth herein, restrictions
imposed by applicable securities laws and any such lien or encumbrances created
by or imposed upon the shares through no action of ISSI-U.S.
4.2 CORPORATE POWER. ISSI-U.S. has or will have at the Closing Date all
requisite legal and corporate power and authority to execute and deliver this
Agreement, to sell and convey the Shares hereunder, and to carry out and perform
its obligations under the terms of this Agreement.
4.3 AUTHORIZATION. All corporate action on the part of ISSI-U.S., its
directors and shareholders necessary for the authorization, execution, delivery
and performance of this Agreement by ISSI-U.S. and the performance of all of
ISSI-U.S.'s obligations hereunder has been taken or will be taken prior to the
Closing. This Agreement, when executed and delivered by ISSI-U.S., shall
constitute a valid and binding obligation of ISSI-U.S., enforceable in
accordance with its terms, and subject to laws of general application relating
to bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies.
4.4 GOVERNMENTAL CONSENT. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the part
of ISSI-U.S., other than the FIA Approval, is required in connection with the
valid execution and delivery of this Agreement, or the sale of the Shares as
contemplated hereby.
4.5 NO FINDER'S FEE. ISSI-U.S. has retained no finder or broker in
connection with the transactions contemplated by this Agreement and hereby
agrees to indemnify and hold the Purchasers and ISSI-Taiwan 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 ISSI-U.S., or any of its
employees or representatives, is responsible.
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SECTION 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby severally represents and warrants to ISSI-U.S. and
ISSI-Taiwan with respect to its purchase of the Shares as follows:
5.1 EXPERIENCE. It has substantial experience in evaluating and
investing in private placement transactions of securities in companies similar
to ISSI-Taiwan so that it is capable of evaluating the merits and risks of its
investment in ISSI-Taiwan and has the capacity to protect its own interests. It
is acquiring the Shares 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.
5.2 NO PUBLIC MARKET. It understands that no public market now exists
for any of the securities issued by ISSI-Taiwan and that ISSI-Taiwan has made no
assurances that a public market will ever exist for ISSI-Taiwan's securities.
5.3 ACCESS TO DATA. It has had an opportunity to discuss ISSI-Taiwan's
business, management and financial affairs with its management and the
opportunity to review ISSI-Taiwan's facilities. It has also had an opportunity
to ask questions of officers of ISSI-Taiwan, which questions were answered to
its satisfaction. It understands that such discussions, as well as any written
information issued by ISSI-Taiwan, were intended to describe certain aspects of
ISSI-Taiwan's business and prospects but were not a thorough or exhaustive
description.
5.4 AUTHORIZATION. This Agreement when executed and delivered by such
Purchaser will constitute a valid and legally binding obligation of the
Purchaser, enforceable in accordance with its terms, and subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
5.5 GOVERNMENTAL CONSENT. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the part
of the Purchasers, other than the FIA Approval, is required in connection with
the valid execution and delivery of this Agreement, or the purchase of the
Shares as contemplated hereby.
5.6 NO FINDER'S FEE. It has retained no finder or broker in connection
with the transactions contemplated by this Agreement and hereby agrees to
indemnify and hold ISSI-U.S., ISSI-Taiwan and the other Purchasers 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, is responsible.
5.7 INVESTOR COUNSEL. Each Purchaser acknowledges that it has had the
opportunity to review this Agreement and the exhibits attached hereto and the
transactions contemplated by this Agreement with its own legal counsel. Each
Purchaser is relying solely on such counsel and not on
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any statements or representations of ISSI-U.S., ISSI-Taiwan or any of its agents
for legal advice with respect to this investment or the transactions
contemplated by this Agreement.
5.8 TAX LIABILITY. It has reviewed with its own tax advisors the tax
consequences of this investment and the transactions contemplated by this
Agreement. It relies solely on such advisors and not on any statements or
representations of ISSI-U.S., ISSI-Taiwan or any of its agents. It understands
that it (and not ISSI-U.S. or ISSI-Taiwan) shall be responsible for its own tax
liability that may arise as a result of this investment or the transactions
contemplated by this Agreement.
SECTION 6
CONDITIONS TO CLOSING OF PURCHASERS
The Purchasers' obligations to purchase the Shares at the Closing are,
at the option of the Purchasers, subject to the fulfillment of the following
conditions:
6.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by ISSI-Taiwan in Section 3 and ISSI-U.S. in Section 4 hereof
shall be true and correct in all material respects as of the Closing Date.
6.2 OPINION OF ISSI-U.S. COUNSEL. The Purchasers shall have received
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, counsel to
ISSI-U.S., an opinion addressed to them, dated the Closing Date, in
substantially the form of Exhibit C.
6.3 OPINION OF ISSI-TAIWAN COUNSEL. The Purchasers shall have received
from Alliance International Law Offices, counsel to ISSI-Taiwan, an opinion
addressed to them, dated the Closing Date, in substantially the form of Exhibit
D.
6.4 FIA APPROVAL. ISSI-U.S. and the Purchasers shall have obtained the
FIA Approval.
SECTION 7
CONDITIONS TO CLOSING OF ISSI-U.S.
ISSI-U.S.'s obligation to sell the Shares at the Closing Date is, at
the option of ISSI-U.S., subject to the fulfillment as of the Closing Date of
the following conditions:
7.1 REPRESENTATIONS. The representations and warranties made by the
Purchasers and ISSI-Taiwan in Section 5 hereof shall be true and correct in all
material respects as of the Closing Date.
7.2 FIA APPROVAL. ISSI-U.S. and the Purchasers shall have obtained the
FIA Approval.
SECTION 8
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AFFIRMATIVE COVENANTS OF ISSI-TAIWAN
ISSI-Taiwan hereby covenants and agrees as follows:
8.1 FINANCIAL INFORMATION. ISSI-Taiwan will make available the
following reports to each Purchaser for so long as such Purchaser is a holder of
at least three percent (3%) of the outstanding shares of ISSI-Taiwan:
(a) As soon as practicable after the end of each fiscal year,
and in any event within 90 days thereafter, consolidated balance sheets of
ISSI-Taiwan and its subsidiaries, if any, as of the end of such fiscal year, and
consolidated statements of income and consolidated statements of changes in
financial position of ISSI-Taiwan and its subsidiaries, if any, for such year,
prepared in accordance with generally accepted accounting principles.
(b) As soon as practicable after the end of the first, second
and third quarterly accounting periods in each fiscal year of ISSI-Taiwan and in
any event within 45 days thereafter, a consolidated balance sheet of ISSI-Taiwan
and its subsidiaries, if any, as of the end of each such quarterly period, and
consolidated statements of income and consolidated statements of changes in
financial condition of ISSI-Taiwan and its subsidiaries for such period and for
the current fiscal year to date, prepared in accordance with generally accepted
accounting principles subject to changes resulting from year-end audit
adjustments.
8.2 ASSIGNMENT OF RIGHTS TO FINANCIAL INFORMATION. The rights granted
pursuant to Section 8.1 may not be assigned or otherwise conveyed by any
Purchaser or by any subsequent transferee of any such rights without the prior
written consent of ISSI-Taiwan; provided, however, that any Purchaser may assign
such rights to a transferee, other than a competitor of ISSI-Taiwan, who
acquires at least three percent (3%) of the outstanding shares of Common.
8.3 BOARD OF DIRECTORS. The Board of Directors of ISSI-Taiwan currently
consists of three (3) directors: ▇▇▇▇▇ ▇. ▇. ▇▇▇, ▇. ▇. ▇▇▇ and Hou ▇▇▇▇ ▇▇▇. As
soon as practicable following the Closing, ISSI-U.S. and the Purchasers will
vote their shares to cause the Board of Directors of ISSI-Taiwan to consist of
six (6) directors, consisting of:
(a) two (2) directors selected by ISSI-U.S.;
(b) one (1) director selected by investors affiliated with
Pacven ▇▇▇▇▇▇ Ventures ("PACVEN ▇▇▇▇▇▇");
(c) one (1) director selected by investors affiliated with
Fu-Sheng Industrial Group ("FU-SHENG");
(d) one (1) director selected by investors affiliated with
W.I. ▇▇▇▇▇▇ ("W.I. ▇▇▇▇▇▇"); and
(e) one (1) director selected by investors affiliated with GVC
Group ("GVC GROUP").
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8.4 BOARD OF SUPERVISORS. The Board of Supervisors of ISSI-Taiwan
currently consists of one (1) supervisor: ▇▇▇▇▇▇ ▇▇▇▇. As soon as practicable
following the Closing, ISSI-U.S. and the Purchasers will vote their shares to
cause the Board of Supervisors of ISSI-Taiwan to consist of three (3)
supervisors, consisting of:
(a) one (1) supervisor selected by ISSI-US;
(b) one (1) supervisor selected by investors affiliated with
GVC Group; and
(c) one (1) supervisor selected by investors affiliated with
Fu-Sheng.
8.5 TERMINATION OF COVENANTS. The covenants set forth in Sections 8.1
and 8.2 shall terminate and be of no further force or effect at such time as
ISSI-Taiwan effects an initial public offering of its Common Stock. The
covenants set forth in Section 8.3(a) and 8.4(a) shall terminate and be of no
further force or effect at such time as (i) ISSI-Taiwan has effected an initial
public offering of its Common Stock and (ii) ISSI-U.S. holds less than an
aggregate of five percent (5%) of the outstanding capital stock of ISSI-Taiwan.
The covenant set forth in Section 8.3(b) shall terminate and be of no further
force or effect at such time as (i) ISSI-Taiwan has effected an initial public
offering of its Common Stock and (ii) investors affiliated with Pacven ▇▇▇▇▇▇
hold less than an aggregate of five percent (5%) of the outstanding capital
stock of ISSI-Taiwan. The covenants set forth in Section 8.3(c) and 8.4(c) shall
terminate and be of no further force or effect at such time as (i) ISSI-Taiwan
has effected an initial public offering of its Common Stock and (ii) investors
affiliated with Fu-Sheng hold less than an aggregate of five percent (5%) of the
outstanding capital stock of ISSI-Taiwan. The covenant set forth in Section
8.3(d) shall terminate and be of no further force or effect at such time as (i)
ISSI-Taiwan has effected an initial public offering of its Common Stock and (ii)
investors affiliated with W.I. ▇▇▇▇▇▇ hold less than an aggregate of five
percent (5%) of the outstanding capital stock of ISSI-Taiwan. The covenants set
forth in Section 8.3(e) and 8.4(b) shall terminate and be of no further force or
effect at such time as (i) ISSI-Taiwan has effected an initial public offering
of its Common Stock and (ii) investors affiliated with GVC Group hold less than
an aggregate of five percent (5%) of the outstanding capital stock of
ISSI-Taiwan.
SECTION 9
RIGHT OF FIRST REFUSAL
9.1 RIGHT OF FIRST REFUSAL. ISSI-U.S. and the Purchasers agree that the
Shares may not be transferred except in accordance with the provisions of this
Section 9.
(a) In the event that ISSI-U.S. or any Purchaser proposes to
transfer any shares of Common Stock of ISSI-Taiwan, such seller shall give
ISSI-Taiwan, ISSI-U.S. and each Purchaser written notice of its intention,
describing the price, terms and condition of the proposed sale. ISSI-U.S. and
each Purchaser, as applicable, shall have thirty (30) days from the date of
receipt of any such notice to agree to purchase up to all of such securities for
the price and upon the terms specified in the notice by giving written notice to
ISSI-Taiwan and the seller and stating therein the quantity of securities to be
purchased. If the offered securities are oversubscribed, the number of
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shares to be purchased by ISSI-U.S. and/or each Purchaser (the "TRANSFEREES")
electing to purchase shall be determined pro-rata according to their percentages
of shareholding in ISSI-Taiwan bearing to the combined percentage of
shareholding of the Transferees. If the Transferees elect to purchase any or all
of the offered securities, the transferor and the Transferees shall perform all
acts required to enable the Transferees to consummate their purchase of such
offered securities within sixty (60) days after the said thirty (30) days
period.
(b) In the event ISSI-U.S. or a Purchaser fails to exercise
the right of first refusal within said thirty (30) day period, the transferor
shall have ninety (90) days thereafter to sell or enter into an agreement
(pursuant to which the sale of securities covered thereby shall be closed, if at
all, within sixty (60) days from the date of said agreement) to sell the
securities not elected to be purchased by ISSI-U.S. or the Purchasers at the
price and upon the terms no more favorable to the purchasers of such securities
than specified in the transferor's notice. In the event the transferor has not
sold the securities or entered into an agreement to sell the securities within
said ninety (90) day period (or sold and issued securities in accordance with
the foregoing within sixty (60) days from the date of said agreement), the
transferor shall not thereafter issue or sell any securities, without first
offering such securities in the manner provided above.
(c) The right of first refusal granted under this Agreement
shall expire upon the first to occur of the following: (i) the closing of the
first public offering of the Common Stock of ISSI-Taiwan to the general public,
or (ii) as to a Purchaser if such Purchaser no longer holds at least three
percent (3%) of the outstanding shares of ISSI-Taiwan.
(d) The right of first refusal shall not apply to (i)
transfers of shares of ISSI-Taiwan Common Stock held by ISSI-U.S. or any
Purchaser to an affiliate, or (ii) transfers of any shares of ISSI-Taiwan Common
Stock held by ISSI-U.S. to employees of ISSI-Taiwan or ISSI-U.S.
(e) The right of first refusal hereunder is not assignable
except by each of such Purchasers to any wholly-owned subsidiary.
SECTION 10
MISCELLANEOUS
10.1 EMPLOYEE SHARES -- ISSI-TAIWAN. ISSI-U.S. plans to offer up to
9,600,000 shares of ISSI-Taiwan Common Stock for sale to new or existing
employees of ISSI-Taiwan at a purchase price of $NT14.00. Such shares will be
subject to a buy-back clause over three years of employment.
10.2 EMPLOYEE SHARES -- ISSI-U.S. ISSI-U.S. plans to grant options or
other rights to acquire up to 10,000,000 shares of ISSI-Taiwan Common Stock to
new or existing employees of ISSI-U.S. at a purchase price of $NT24.00. All such
shares will be subject to three (3) year vesting.
10.3 GOVERNING LAW. This Agreement shall be governed in all respects by
the internal laws of the State of California. The parties expressly stipulate
that any litigation under this Agreement shall be brought in the state courts of
the Counties of Santa Clara, California and in the
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▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ for the Northern District of California. The
parties agree to submit to the jurisdiction and venue of those courts.
10.4 SUCCESSORS AND ASSIGNS. Except as otherwise provided 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,
provided, however, that the rights of a Purchaser to purchase the Common shall
not be assignable without the consent of ISSI-U.S.
10.5 ENTIRE AGREEMENT. This Agreement and the other documents delivered
pursuant hereto at the Closing constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof,
and no party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth herein
or therein.
10.6 AMENDMENT. This Agreement and any term hereof may be amended,
waived, discharged or terminated by a written instrument signed by ISSI-U.S.,
ISSI-Taiwan and holders of fifty percent (50%) or more of the Shares sold under
this Agreement, but in no event shall the obligation of any Purchaser to
purchase Shares hereunder be increased, except upon the written consent of such
Purchaser.
10.7 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed, postage prepaid, or
otherwise delivered by hand or by messenger, addressed (a) if to a Purchaser, at
such Purchaser's address set forth in Exhibit A, or at such other address as
such Purchaser shall have furnished to ISSI-U.S. and ISSI-Taiwan in writing, or
(b) if to any other holder of any Shares, at such address as such holder shall
have furnished ISSI-Taiwan in writing, or, until any such holder so furnishes an
address to ISSI-Taiwan, then to and at the address of the last holder of such
Shares who has so furnished an address to ISSI-Taiwan, or (c) if to ISSI-U.S.,
one copy should be sent to the attention of the Corporate Secretary at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other address as ISSI-U.S. shall
have furnished to the Purchasers and ISSI-Taiwan, or (d) if to ISSI-Taiwan, one
copy should be sent to the attention of the Corporate Secretary at IF, #▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ II, Science-based Industrial Park, Hsin-Chu, Taiwan, Republic of
China, or at such other address as ISSI-Taiwan shall have furnished to the
Purchasers and ISSI-U.S.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given (i) when delivered if
delivered personally, (ii) if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for
the deposit of the mail, addressed and mailed as aforesaid, or (iii) one
business day after the business day of facsimile transmission, if delivered by
facsimile and sent by mail as aforesaid.
10.8 EXPENSES. ISSI-U.S., ISSI-Taiwan and each Purchaser shall bear its
own expenses incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
10.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable
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15
against the parties actually executing such counterparts, and all of which
together shall constitute one instrument.
10.10 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
10.11 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
[remainder of page intentionally left blank]
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16
The foregoing agreement is hereby executed as of the date first above
written.
COMPANY
INTEGRATED SILICON SOLUTION, INC.
a California corporation
By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇.▇. ▇▇▇
Title: President
ISSI-TAIWAN
a Taiwan corporation
By: /s/ K.Y. Han
--------------------------------------
Name: K.Y. Han
Title: General Manager
PURCHASERS
FU SHENG INDUSTRIAL CO. LTD.
By: /s/ Hou ▇▇▇▇ ▇▇▇
--------------------------------------
Name: Hou ▇▇▇▇ ▇▇▇
Title: Chairman
TAISHIN INTL INVESTMENT &
DEVELOPMENT CO., LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
JINJOEN INTL INVESTMENT & CO.
By: /s/ Tzu ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: Tzu ▇▇▇▇▇ ▇▇▇▇▇
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17
LINGSEN PRECISION INDUSTRIES, INC.
By: /s/ Ko-Chein Yeh
--------------------------------------
Name: Ko-Chein Yeh
Title: Chairman
G-BASE INVESTMENT CORP.
By: /s/ Yen-Tsuen Chiang
--------------------------------------
Name: Yen-Tsuen Chiang
Title: Chairman
G-BEST INVESTMENT CORP.
By: /s/ Yen-Tsuen Chiang
--------------------------------------
Name: Yen-Tsuen Chiang
Title: Chairman
W.I. ▇▇▇▇▇▇ GROUP
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Executive Vice President
CHINA DEVELOPMENT CORPORATION
By: /s/ CDC
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇
Title: President
INTERNATIONAL VENTURE CAPITAL INVESTMENT
CORPORATION
By: /s/ Lip-Bu Tan
--------------------------------------
Name: Lip-Bu Tan
Title: Director
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18
ASIAN VENTURE CAPITAL INVESTMENT
CORPORATION
By: /s/ Lip-Bu Tan
--------------------------------------
Name: Lip-Bu Tan
Title: Director
TWG INVESTMENT LDC
By: /s/ Lip-Bu Tan
--------------------------------------
Name: Lip-Bu Tan
Title: Director
SINO-FRENCH CAPITAL INVESTMENT COMPANY
By: /s/ Lip-Bu Tan
--------------------------------------
Name: Lip-Bu Tan
Title: Director
O, W&W INVESTMENTS LIMITED
By: /s/ Lip-Bu Tan
--------------------------------------
Name: Lip-Bu Tan
Title: Director
VERTEX MANAGEMENT (II)
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Advisor-Taiwan
CENTRAL INVESTMENT HOLDING CO., LTD.
By: /s/ Mu-Yeh, Ya
--------------------------------------
Name: Mu-Yeh, Ya
Title: Executive Vice President
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19
ASIA PACIFIC HOLDINGS CORP.
By: /s/ Chi-▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: Chi-▇▇▇▇▇ ▇▇▇
Title: Group Vice President
VATE TECHNOLOGY CO., LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman
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20
EXHIBIT A
SCHEDULE OF PURCHASERS
Number of Shares
Investor Name & Address to be Purchased
----------------------- ----------------
Fu Sheng Industrial Co. Ltd. 12,850,000
▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ R.O.C.
Tel: 886-22-5072211 ext. 259
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇-▇▇▇ ▇▇▇
Taishin Intl Investment & Development Co., Ltd. 4,000,000
▇▇, ▇▇ ▇▇, ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇. ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, R.O.C.
Tel: 886-2-2501-6366 ext. 35
Fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: Hui-▇▇▇ ▇▇▇▇▇
Jinjoen Intl Investment & Co. 2,000,000
6F. ▇▇ ▇▇, ▇▇▇▇▇-▇▇▇ ▇▇., ▇▇▇. ▇
▇▇-▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Tel: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: Yi-▇▇▇▇▇ ▇▇▇
Lingsen Precision Industries, Inc. 7,350,000
c/o GVC Corporation
▇▇▇, ▇▇. ▇▇, ▇▇▇ ▇
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ R.O.C.
Tel: ▇▇▇-▇▇-▇▇▇-▇▇▇▇ ▇▇▇: ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: Mr. Ku
G-Base Investment Corp. 1,575,000
c/o GVC Corporation
▇▇▇, ▇▇. ▇▇, ▇▇▇ ▇
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ R.O.C.
Tel: ▇▇▇-▇▇-▇▇▇-▇▇▇▇ ▇▇▇: ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: Mr. Ku
21
SCHEDULE OF PURCHASERS CONT.
Number of Shares
Investor Name & Address to be Purchased
----------------------- ----------------
G-Best Investment Corp. 1,575,000
c/o GVC Corporation
▇▇▇, ▇▇. ▇▇, ▇▇▇ ▇
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ R.O.C.
Tel: ▇▇▇-▇▇-▇▇▇-▇▇▇▇ ▇▇▇: ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: Mr. Ku
W.I. ▇▇▇▇▇▇ Group 2,100,000
▇▇-▇, ▇▇,▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇.▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ R.O.C.
Tel: 886-22-755-6033 ext. 889
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
China Development Corporation 4,000,000
2nd floor, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇, ▇
▇▇▇▇▇▇, ▇▇▇▇▇ Taiwan R.O.C.
Tel: ▇▇▇-▇▇-▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇
International Venture Capital Investment Corporation 452,000
18F-2 ▇▇. ▇▇, ▇▇▇ ▇
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.▇.▇.
Tel: 886-22-704-8018 ext. 37
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Chen
Asian Venture Capital Investment Corporation 1,023,000
18F-2, ▇▇.▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇. ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
Tel: 886-2-2704-8018 ext. 20
Fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇-▇▇▇ ▇▇▇
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22
SCHEDULE OF PURCHASERS CONT.
Number of Shares
Investor Name & Address to be Purchased
----------------------- ----------------
TWG Investment LDC 945,000
18F-2, ▇▇. ▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇. ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
Tel: 886-2-2704-8018 ext. 20
Fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇-▇▇▇ ▇▇▇
Sino-French Capital Investment Company 511,000
9F-2, ▇▇. ▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇. ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
Tel: 886-2-2708-6761 ext. 16
Fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇
O, W&W Investments Limited 1,670,000
18F-2, ▇▇. ▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇. ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
Tel: 886-2-2704-8018 ext. 20
Fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇-▇▇▇ ▇▇▇
Vertex Management 916,500
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
#▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ Setiawan
Central Investment Holding Co., Ltd. 3,500,000
▇▇, ▇▇▇, ▇▇ ▇▇▇ ▇▇., ▇▇▇. ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
Tel: 886-2-2771-9998 ext. 617
Fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇
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23
SCHEDULE OF PURCHASERS CONT.
Number of Shares
Investor Name & Address to be Purchased
----------------------- ----------------
Asia Pacific Holdings Corp. 1,000,000
▇▇, ▇▇▇, ▇▇ ▇▇▇ ▇▇., ▇▇▇. ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
Tel: 886-2-2771-9998 ext. 511
Fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇
Vate Technology Co., Ltd. 500,000
No, 9, Li-Hsin Rd., V
Science-Based Industrial Park
Hsinchu, Taiwan, R.O.C.
Tel: 886-3-577-0345 ext. 5100
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
TOTAL: 45,967,500
==========
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