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CATALYST SEMICONDUCTOR, INC.
COMMON STOCK PURCHASE AGREEMENT
BETWEEN
CATALYST SEMICONDUCTOR, INC.
AND
ELEX N.V.
SEPTEMBER 14, 1998
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TABLE OF CONTENTS
PAGE
----
1. Purchase and Sale of Common Stock.........................................................1
1.1 First Sale and Issuance of Common Stock..........................................1
1.2 First Closing; Delivery..........................................................1
1.3 Second Sale and Issuance of Common Stock.........................................1
1.4 Second Closing; Delivery.........................................................2
2. Representations and Warranties of the Company.............................................2
2.1 Organization, Good Standing and Qualification....................................2
2.2 Capitalization...................................................................2
2.3 Authorization....................................................................3
2.4 Valid Issuance of Securities.....................................................3
2.5 Governmental Consents............................................................3
2.6 Litigation.......................................................................3
2.7 Corporate Documents..............................................................4
3. Representations and Warranties of Purchaser...............................................4
3.1 Authorization; Share Ownership...................................................4
3.2 Purchase Entirely for Own Account................................................4
3.3 Disclosure of Information........................................................4
3.4 Restricted Securities............................................................4
3.5 No Public Market.................................................................5
3.6 Legends..........................................................................5
3.7 Accredited Investor; Sophistication..............................................5
3.8 Foreign Investors................................................................6
4. Conditions of Purchaser's Obligations at Closing..........................................6
4.1 Representations and Warranties...................................................6
4.2 Performance......................................................................6
4.3 Compliance Certificate...........................................................6
4.4 Qualifications...................................................................6
4.5 Amendment to Rights Agreement....................................................6
5. Conditions of the Company's Obligations at Closing........................................7
5.1 Representations and Warranties...................................................7
5.2 Performance......................................................................7
5.3 Qualifications...................................................................7
5.4 Standstill Agreement.............................................................7
5.5 Amendment to Rights Agreement....................................................7
5.6 Fairness Opinion.................................................................7
6. Repurchase Right..........................................................................7
6.1 Repurchase Right.................................................................7
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6.2 Successors.......................................................................8
6.3 Amendment of Prior Agreement.....................................................8
7. Discussions Concerning Future Investments.................................................8
7.1 Future Additional Investments....................................................8
7.2 Investments by Management........................................................8
8. Miscellaneous.............................................................................9
8.1 Survival of Warranties...........................................................9
8.2 Transfer; Successors and Assigns.................................................9
8.3 Governing Law....................................................................9
8.4 Counterparts.....................................................................9
8.5 Titles and Subtitles.............................................................9
8.6 Notices..........................................................................9
8.7 Finder's Fee....................................................................10
8.8 Attorney's Fees.................................................................10
8.9 Amendments and Waivers..........................................................10
8.10 Severability...................................................................10
8.11 Delays or Omissions............................................................10
8.12 Entire Agreement...............................................................11
8.13 Nondisclosure Agreement........................................................11
8.14 Corporate Securities Law.......................................................11
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CATALYST SEMICONDUCTOR, INC.
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made as of
the 14th day of September 1998 by and between CATALYST SEMICONDUCTOR, INC., a
corporation organized and existing under the laws of the State of Delaware (the
"COMPANY"), and ELEX N.V., a corporation organized and existing under the laws
of the Country of Belgium ("PURCHASER").
The parties hereby agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK.
1.1 FIRST SALE AND ISSUANCE OF COMMON STOCK. Subject to the terms
and conditions of this Agreement, Purchaser agrees to purchase at the First
Closing (as defined below) and the Company agrees to sell and issue to Purchaser
at the First Closing an aggregate of 4,000,000 shares of Common Stock at a
purchase price of US$0.25 per share. The shares of Common Stock issued to
Purchaser pursuant to this Section 1.1 shall be hereinafter referred to as the
"FIRST CLOSING STOCK."
1.2 FIRST CLOSING; DELIVERY.
(a) The purchase and sale of the First Closing Stock shall
take place at the offices of Venture Law Group, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, at 10:00 a.m., on September 14, 1998, or at such other time and
place as the Company and Purchaser mutually agree upon, orally or in writing
(which time and place are designated as the "FIRST CLOSING" and the date on
which the Closing occurs shall be the "FIRST CLOSING Date").
(b) At the Closing, the Company shall deliver to Purchaser
a certificate representing the First Closing Stock being purchased thereby
against payment of the purchase price therefor by check payable to the Company
or by wire transfer to the Company's bank account.
1.3 SECOND SALE AND ISSUANCE OF COMMON STOCK. At any time during
the twelve (12) month period following the First Closing Date, the Company shall
have the right to require Purchaser to purchase up to an additional 4,000,000
shares of Common Stock of the Company. The Company may exercise such right by
giving Purchaser fifteen (15) days advance written notice (the "EXERCISE
NOTICE") of the Company's exercise of such right which Exercise Notice shall
specify (a) the number of shares to be purchased pursuant to this Section 1.3
(the "SECOND CLOSING STOCK"), (b) the aggregate purchase price, and (c) the
scheduled closing date for the purchase and sale of the Second Closing Stock,
which shall be no later than the 12-month anniversary of the First Closing Date.
Upon delivery of the Exercise Notice and subject to the terms and conditions of
this Agreement, Purchaser agrees to purchase at the Second Closing (as defined
below) and the Company agrees to sell and issue to Purchaser at the Second
Closing the
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Second Closing Stock at a purchase price of US$0.25 per share. The First Closing
Stock and the Second Closing Stock shall collectively be referred to as the
"STOCK."
1.4 SECOND CLOSING; DELIVERY.
(a) The purchase and sale of the Second Closing Stock
shall take place at the offices of Venture Law Group, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at 10:00 a.m., on the scheduled closing date specified in the
Exercise Notice pursuant to Section 1.3(c), or at such other time and place as
the Company and Purchaser mutually agree upon, orally or in writing (which time
and place are designated as the "SECOND CLOSING" and the date on which the
Closing occurs shall be the "SECOND CLOSING DATE").
(b) At the Second Closing, the Company shall deliver to
Purchaser a certificate representing the Second Closing Stock being purchased
thereby against payment of the purchase price therefor by check payable to the
Company or by wire transfer to the Company's bank account.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Purchaser that, except as set forth on a Schedule of
Exceptions attached hereto as Exhibit A, which exceptions shall be deemed to be
representations and warranties as if made hereunder:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business. The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure so to
qualify would have a material adverse effect on its business or properties.
2.2 CAPITALIZATION. The authorized capital of the Company
consists, or will consist, immediately prior to the Closing, of:
(a) 2,000,000 shares of Preferred Stock, none of which is
issued and outstanding.
(b) 25,000,000 shares of Common Stock, 9,961,722 shares of
which are issued and outstanding as of August 14, 1998. All of the outstanding
shares of Common Stock have been duly authorized, validly issued, fully paid and
are nonassessable and issued in compliance with all applicable federal and state
securities laws.
(c) Except for outstanding options, shares, rights or
other securities issued or granted pursuant to the Company's Stock Option Plan,
the Company's 1993 Directors Stock Option Plan, the Company's Employee Stock
Purchase Plan, the Company's Preferred Shares Rights Agreement dated as of
December 3, 1996 between the Company and First National Bank of Boston, as
Rights Agent (the "RIGHTS AGREEMENT"), and certain shares that the Company may
be required to issue to Trio-Tech in order to satisfy certain obligations to
such company, and except as provided in Section 7.2, there are no outstanding
options, warrants,
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rights (including conversion or preemptive rights and rights of first refusal or
similar rights) or agreements, orally or in writing, for the purchase or
acquisition from the Company of any shares of its capital stock.
2.3 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the Amended and
Restated Standstill Agreement in the form attached hereto as Exhibit B (the
"STANDSTILL AGREEMENT" and together with this Agreement, the "Agreements"), the
performance of all obligations of the Company hereunder and thereunder and, the
Agreements, when executed and delivered by the Company, shall constitute valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of
general application affecting enforcement of creditors' rights generally, as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
2.4 VALID ISSUANCE OF SECURITIES. The Stock that is being issued
to Purchaser hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable and free of restrictions on transfer other
than restrictions on transfer under this Agreement and the Standstill Agreement
and applicable state and federal securities laws. Based in part upon the
representations of Purchaser in this Agreement and subject to the provisions of
Section 2.5 below, the Stock will be issued in compliance with all applicable
federal and state securities laws.
2.5 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except for filings pursuant to Section 25102(f)
of the California Corporate Securities Law of 1968, as amended, and the rules
thereunder, other applicable state securities laws and Regulation D of the
Securities Act of 1933, as amended (the "SECURITIES ACT").
2.6 LITIGATION. There is no action, suit, proceeding or
investigation pending or, to the Company's knowledge, currently threatened
against the Company or any of its subsidiaries that questions the validity of
the Agreements or the right of the Company to enter into them, or to consummate
the transactions contemplated hereby or thereby, nor is the Company aware that
there is any basis for the foregoing. The Company is not a party or subject to
the provisions of any order, writ, injunction, judgment or decree of any court
or government agency or instrumentality.
2.7 CORPORATE DOCUMENTS. The Restated Certificate of
Incorporation and Bylaws of the Company are in the form provided to Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to the Company that:
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3.1 AUTHORIZATION; SHARE OWNERSHIP. Purchaser has full power and
authority to enter into the Agreements. The Agreements, when executed and
delivered by Purchaser, will constitute valid and legally binding obligations of
Purchaser, enforceable in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and any other laws of general application affecting enforcement of
creditors' rights generally, and as limited by laws relating to the availability
of a specific performance, injunctive relief, or other equitable remedies.
Purchaser does not, and immediately prior to the Closing will not, beneficially
own any outstanding shares of Common Stock of the Company
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made
with Purchaser in reliance upon Purchaser's representation to the Company, which
by Purchaser's execution of this Agreement, Purchaser hereby confirms, that the
Stock to be acquired by Purchaser will be acquired for investment for
Purchaser's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that Purchaser has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Agreement, Purchaser further represents that
Purchaser does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Stock. Purchaser has
not been formed for the specific purpose of acquiring the Stock.
3.3 DISCLOSURE OF INFORMATION. Purchaser has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Stock with the Company's current and past
Chief Executive Officers and other management and has had an opportunity to
review the Company's facilities, public filings (including the Company's Form
10-K for the fiscal year ended April 30, 1998) and all other materials requested
by Purchaser and believed by Purchaser to be material to its investment
decision. Purchaser understands that such discussions, as well as any other
written information delivered by the Company to Purchaser, were intended to
describe the aspects of the Company's business which it believes to be material.
Purchaser has had the ability and opportunity to discuss such matters with legal
and other advisors of its choosing.
3.4 RESTRICTED SECURITIES. Purchaser understands that the Stock
has not been, and will not be, registered under the Securities Act, by reason of
a specific exemption from the registration provisions of the Securities Act
which depends upon, among other things, the bona fide nature of the investment
intent and the accuracy of Purchaser's representations as expressed herein.
Purchaser understands that the Stock constitutes "restricted securities" under
applicable U.S. federal and state securities laws and that, pursuant to these
laws, Purchaser must hold the Securities indefinitely unless they are registered
with the Securities and Exchange Commission and qualified by state authorities,
or an exemption from such registration and qualification requirements is
available. Purchaser acknowledges that the Company has no obligation to register
or qualify the Securities for resale. Purchaser further acknowledges that if an
exemption from registration or qualification is available, it may be conditioned
on various requirements including, but not limited to, the time and manner of
sale, the holding period for the Stock, and
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on requirements relating to the Company which are outside of Purchaser's
control, and which the Company is under no obligation and may not be able to
satisfy.
3.5 NO PUBLIC MARKET. Purchaser understands that no public market
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 Securities.
3.6 LEGENDS. Purchaser understands that the Securities and any
securities issued in respect of or exchange for the Securities, may bear one or
all of the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
(b) "THE SALE, PLEDGE OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS
OF A CERTAIN COMMON STOCK PURCHASE AGREEMENT, AS AMENDED, BY AND BETWEEN
THE SHAREHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION."
(c) Any legend set forth in the other Standstill
Agreement.
(d) Any legend required by the Blue Sky laws of any state
or country to the extent such laws are applicable to the shares represented by
the certificate so legended.
3.7 ACCREDITED INVESTOR; SOPHISTICATION. Purchaser is an
accredited investor as defined in Rule 501(a) of Regulation D promulgated under
the Securities Act. Purchaser has extensive experience with companies in the
industry conducted by the Company and is an experienced and sophisticated
investor with extensive experience investing in transactions similar to the
transactions contemplated by this Agreement.
3.8 FOREIGN INVESTORS. If Purchaser is not a United States person
(as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as
amended), Purchaser hereby represents that it has satisfied itself as to the
full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Stock or any use of this Agreement, including
(i) the legal requirements within its jurisdiction for the purchase of the
Stock, (ii) any foreign exchange restrictions applicable to such purchase, (iii)
any governmental or other consents that may need to be obtained, and (iv) the
income tax and other tax consequences, if any, that may be
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relevant to the purchase, holding, redemption, sale, or transfer of the Stock.
Purchaser's subscription and payment for and continued beneficial ownership of
the Stock, will not violate any applicable securities or other laws of
Purchaser's jurisdiction.
4. CONDITIONS OF PURCHASER'S OBLIGATIONS AT CLOSING. The obligations of
Purchaser to the Company under this Agreement are subject to the fulfillment, on
or before the Closing, of each of the following conditions, unless otherwise
waived:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
Closing.
4.2 PERFORMANCE. The Company shall have performed and complied
with all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
4.3 COMPLIANCE CERTIFICATE. The President of the Company shall
deliver to Purchaser at the Closing a certificate certifying that the conditions
specified in Sections 4.1 and 4.2 have been fulfilled.
4.4 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state (including the National Association of Securities Dealers, Inc. or the
National Market) that are required in connection with the lawful issuance and
sale of the Stock pursuant to this Agreement shall be obtained and effective as
of the Closing.
4.5 AMENDMENT TO RIGHTS AGREEMENT. The Company shall have amended
its Rights Agreement, so that Purchaser will not be an "Acquiring Person" solely
by virtue of the transactions contemplated by this Agreement.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations
of the Company to Purchaser under this Agreement are subject to the fulfillment,
on or before the Closing, of each of the following conditions, unless otherwise
waived:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Purchaser contained in Section 3 shall be true and correct in all
material respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
5.2 PERFORMANCE. All covenants, agreements and conditions
contained in this Agreement to be performed by Purchaser on or prior to the
Closing shall have been performed or complied with in all material respects.
5.3 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state (including the
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National Association of Securities Dealers, Inc. or the National Market) that
are required in connection with the lawful issuance and sale of the Stock
pursuant to this Agreement shall be obtained and effective as of the Closing.
5.4 STANDSTILL AGREEMENT. The Company and Purchaser shall have
executed and delivered the Standstill Agreement.
5.5 AMENDMENT TO RIGHTS AGREEMENT. The Company shall have amended
its Rights Agreement so that Purchaser will not be an "Acquiring Person" solely
by virtue of the transactions contemplated by this Agreement and the Common
Stock Purchase Agreement dated as of May 26, 1998.
5.6 FAIRNESS OPINION. The Company shall have obtained an opinion
of ▇▇▇▇▇▇ Securities or other financial advisors to the Company of recognized
standing, as to the fairness to the Company of the sale and issuance of the
Stock from a financial point of view.
6. REPURCHASE RIGHT.
6.1 REPURCHASE RIGHT. Upon not less than fifteen (15) days
advance written notice (the "REPURCHASE NOTICE") delivered at any time or from
time to time prior to the one (1) year anniversary of the Closing Date, the
Company shall hereby have the assignable right to repurchase all or any portion
of the Stock. The repurchase price to be paid in exchange for the repurchase of
the Stock (the "REPURCHASE PRICE") shall be as follows: (a) if the Repurchase
Notice is delivered not later than the 3 month anniversary of the Closing Date,
the Repurchase Price shall be $1.25 per share; (b) if the Repurchase Notice is
delivered after the 3 month anniversary of the Closing Date but not later than
the 6 month anniversary of the Closing Date, the Repurchase Price shall be $1.50
per share; (c) if the Repurchase Notice is delivered after the 6 month
anniversary of the Closing Date but not later than the 9 month anniversary of
the Closing Date, the Repurchase Price shall be $1.75 per share; and (d) if the
Repurchase Notice is delivered after the 9 month anniversary of the Closing Date
but not later than the 12 month anniversary of the Closing Date, the Repurchase
Price shall be $2.00 per share. Notwithstanding the foregoing the Repurchase
Price shall in no event be less than the average of the closing bid price for
the Common Stock for the ten (10) trading days preceding the date of the
Repurchase Notice. The Repurchase Notice shall state that the demand for
repurchase is based on this Section of this Agreement and shall specify the date
of delivery of the Repurchase Notice, the number of shares to be repurchased,
and the price to be paid therefor. The Company and Elex hereby amend the third
sentence of Section 6.1 of that certain Common Stock Purchase Agreement dated as
of May 26, 1998 between the Company and Purchaser to provide as follows:
"Notwithstanding the foregoing the Repurchase Price shall in no event be less
than the average of the closing bid price for the Common Stock for the ten (10)
trading days preceding the date of the Repurchase Notice."
6.2 SUCCESSORS. This Agreement shall be binding on any assignees
or transferees of Purchaser and Purchaser shall not sell, assign, pledge or
transfer the Stock unless such assignee or transferee executes an agreement
agreeing to be bound by the terms of this Agreement.
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6.3 AMENDMENT OF PRIOR AGREEMENT. The Company and Elex hereby
amend and restate the third sentence of Section 6.1 of that certain Common Stock
Purchase Agreement dated as of May 26, 1998 between the Company and Purchaser to
provide in its entirety as follows: "Notwithstanding the foregoing the
Repurchase Price shall in no event be less than the average of the closing bid
price for the Common Stock for the ten (10) trading days preceding the date of
the Repurchase Notice."
7. DISCUSSIONS CONCERNING FUTURE INVESTMENT; INVESTMENT BY
MANAGEMENT.
7.1 FUTURE ADDITIONAL INVESTMENTS. In the event the Company is
going to file a voluntary petition in bankruptcy or an assignment for the
benefit of creditors, the Company shall notify Purchaser, shall discuss its
plans with Purchaser and shall discuss with Purchaser the possibility of
Purchaser investing additional equity in the Company. Such discussions will also
encompass the necessity to amend the Rights Agreement.
7.2 INVESTMENTS BY MANAGEMENT. The Company will seek to sell to
certain of the members of management of the Company up to 4,500,000 shares of
the Company's Common Stock at a price of not less than $0.30 per share. The
payment for such shares shall be such consideration as shall be determined by
the Board of Directors of the Company which may be nonrecourse promissory notes
delivered by such individuals. In exchange for such members of management
maintaining below market salaries for a period of not less than three years, the
nonrecourse promissory notes will be forgiven in equal monthly, quarterly or
annual installments over a period of not less than three years.
8. MISCELLANEOUS.
8.1 WARRANTIES. Unless otherwise set forth in this Agreement, the
representations, warranties and covenants of the Company and Purchaser contained
in or made pursuant to this Agreement shall not survive the Closing.
8.2 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.3 GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by and construed and enforced in accordance with the internal laws of the State
of California, and shall be binding upon the parties hereto in the United States
and worldwide. The federal and state courts within County of Santa ▇▇▇▇▇ in the
State of California shall have exclusive jurisdiction to adjudicate any dispute
arising out of this Agreement.
8.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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8.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or forty-eight
(48) hours after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed to the party to be notified at such
party's address as set forth below:
(a) If to Purchaser, to:
Elex ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: Chairman of the Board
Phone: 011+▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Fax: 011+▇▇ ▇▇ ▇▇ ▇▇ ▇▇
(b) If to Catalyst, to:
Catalyst Semiconductor, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President and Chief Executive Officer
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
8.7 FINDER'S FEE. Each party represents that it neither is nor
will be obligated for any finder's fee or commission in connection with this
transaction. Purchaser agrees to indemnify and to hold harmless the Company from
any liability for any commission or compensation in the nature of a finder's fee
(and the costs and expenses of defending against such liability or asserted
liability) for which Purchaser or any of its officers, employees, or
representatives is responsible. The Company agrees to indemnify and hold
harmless Purchaser from any liability for any commission or compensation in the
nature of a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Company or any of its officers,
employees or representatives is responsible.
8.8 ATTORNEY'S FEES. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of any of the
Agreements, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
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8.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the Company and the holders
of at least a majority of the Stock. Any amendment or waiver effected in
accordance with this Section 7.9 shall be binding upon Purchaser and each
transferee of the Stock, each future holder of all such securities, and the
Company.
8.10 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(a) such provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
8.11 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any party under this Agreement, upon any
breach or default of any other party under this Agreement, shall impair any such
right, power or remedy of such non-breaching or non-defaulting party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a 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 any party of any
breach or default under this Agreement, or any waiver on the part of any party
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 any
party, shall be cumulative and not alternative.
8.12 ENTIRE AGREEMENT. This Agreement, and the documents referred
to herein constitute the entire agreement between the parties hereto pertaining
to the subject matter hereof, and any and all other written or oral agreements
relating to the subject matter hereof existing between the parties hereto are
expressly canceled.
8.13 NONDISCLOSURE AGREEMENT. The parties reaffirm and
acknowledge the terms and conditions of that certain Nondisclosure Agreement
dated as of May 26, 1998.
8.14 CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES WHICH
ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
[Remainder of Page Intentionally Left Blank]
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The parties have executed this Common Stock Purchase Agreement as of the
date first written above.
COMPANY:
CATALYST SEMICONDUCTOR, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇
President and Chief Executive Officer
PURCHASER:
ELEX N.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Chairman of the Board
SIGNATURE PAGE TO PURCHASE AGREEMENT
15
EXHIBIT A
SCHEDULE OF EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
This Schedule of Exceptions is made and given pursuant to Section 2 of
the Common Stock Purchase Agreement dated as of September 14, 1998 (the
"AGREEMENT") between Catalyst Semiconductor, Inc., a corporation organized and
existing under the laws of the State of Delaware (the "COMPANY"), and Elex N.V.,
a corporation organized and existing under the laws of the Country of Belgium
("PURCHASER"). Unless the context otherwise requires, all capitalized terms used
herein shall have the same meanings as set forth in the Agreement. All
disclosures and exceptions contained herein are intended to modify all of the
Company's representations and warranties contained in the Agreement, and the
section headings used below are for convenience only.
NONE.
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