THIRD AMENDED AND RESTATED STOCKHOLDER AGREEMENTShareholder Agreement |
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JAZZ SEMICONDUCTOR INC | CONEXANT SYSTEMS, INC | CARLYLE PARTNERS III, L.P | CP III COINVESTMENT, L.P | CARLYLE HIGH YIELD PARTNERS, L.P | RF MICRO DEVICES, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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THIRD AMENDED AND RESTATED STOCKHOLDER AGREEMENT by and among JAZZ SEMICONDUCTOR, INC., CONEXANT SYSTEMS, INC., CARLYLE PARTNERS III, L.P., CP III COINVESTMENT, L.P., CARLYLE HIGH YIELD PARTNERS,
L.P., and RF MICRO DEVICES, INC., Dated as of May 28, 2004
i THIS THIRD AMENDED AND RESTATED STOCKHOLDER AGREEMENT (the " Agreement "), by and among JAZZ SEMICONDUCTOR, INC., a Delaware corporation formerly known as Specialtysemi, Inc. (the " Company "), CONEXANT SYSTEMS, INC ., a Delaware corporation (" Conexant "), CARLYLE PARTNERS III, L.P. , a Delaware limited partnership (" CP III "), CP III COINVESTMENT, L.P. , a Delaware limited partnership (" CP III Coinvestment "), CARLYLE HIGH YIELD PARTNERS, L.P., a Delaware limited partnership (" Carlyle High Yield " and, together with CP III and CP III Coinvestment, " Carlyle "), and RF MICRO DEVICES, INC. , a North Carolina corporation (" RFMD "), is entered into as of the 28 th day of May, 2004. WHEREAS , the Company, Carlyle, Conexant and RFMD are parties to that certain Second Amended and Restated Stockholder Agreement dated as of October 15, 2002 (the " Second Amended Stockholder Agreement "); WHEREAS , the Company is contemplating an offering of Common Stock to the general public that is to be effected pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act (the " Initial Public Offering "); and WHEREAS , effective as of the date of consummation of the Initial Public Offering (the " Effective Date "), the Company, Carlyle, Conexant and RFMD wish to amend and fully restate the Second Amended Stockholder Agreement in its entirety as set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows: 1.1 Definitions. The following terms used in this Agreement shall have the following meanings (unless otherwise expressly provided herein): "Affiliate," with respect to any Person or Stockholder, shall mean any other Person or Stockholder directly or indirectly controlling, controlled by or under common control with, such Person or Stockholder. For purposes of this Agreement, "control" (including with correlative meanings, the terms "controlling" , "controlled by" or "under common control with" ) as used with respect to any Person or Stockholder, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person or Stockholder, whether through the ownership of voting securities or by contract or otherwise. "Agreement" shall mean this Third Amended and Restated Stockholder Agreement, as it may be amended, restated, modified or supplemented from time to time in accordance with its terms. "Board of Directors" shall mean the Board of Directors of the Company. "Bylaws" shall mean the Bylaws of the Company in effect as of the date hereof, as the same may hereafter be amended from time to time. "Capital Stock" shall mean, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of such Person's capital stock or other equity interests, including, without limitation, common stock, preferred stock, partnership interests and limited liability company interests, whether now outstanding or issued after the date hereof. " Carlyle Designees " shall mean (i) the Initial Carlyle Designees and (ii) such Person or Persons who may hereafter be subsequently designated in writing by the Carlyle Stockholders for nomination to the Board of Directors pursuant to Section 2.1(b). " Carlyle Stockholders " shall mean CPIII, CPIII Coinvestment, Carlyle High Yield and any of their Permitted Transferees who may hereafter become a holder of shares of Voting Stock of the Company and a party to this Agreement in accordance with its terms. "Certificate of Incorporation" shall mean the Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware and in effect as of the date hereof, as the same may hereafter be amended from time to time. "Common Stock" shall mean the common stock of the Company, par value $.001 per share. "Company Confidential Information" shall mean any Intellectual Property, documentation or technical data and any and all other trade secrets and other confidential proprietary information, data or know-how of the Company or any direct or indirect subsidiary of the Company, or of other Persons (including, without limitation, any Stockholder) that is in the possession of the Company, including, without limitation, any Intellectual Property, software, system, technology, tools, list of customers, list of advertisers and/or advertising pricing, business plans, marketing plans, financial information, source codes, programs, inventions, techniques, budgets, projections, licenses, prices, costs, or compilations of information or databases used in the Company's or any subsidiary's business or operations or any other information of the Company or any subsidiary or concerning their respective business and operations that is not publicly available. " Conexant Designees " shall mean (i) the Initial Conexant Designees and (ii) such Person or Persons who may hereafter be subsequently designated in writing by the Conexant Stockholders for nomination to the Board of Directors pursuant to Section 2.1(b). " Conexant Stockholders " shall mean Conexant and any of its Permitted Transferees who may hereafter become a holder of shares of Voting Stock of the Company and a party to this Agreement in accordance with its terms. "Entity" shall mean any corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, cooperative, foundation, society, political party, union, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization or entity. " Exchange Act " shall mean the Securities Exchange Act of 1934, as amended. " Governmental Body " shall mean any: (a) nation, principality, state, commonwealth, province, territory, county, municipality, district or other jurisdiction; (b) federal, state, local, municipal or foreign government (including any agency, department, bureau, division, or other administrative body thereof); or (c) governmental or quasi-governmental authority of any nature. "Intellectual Property" shall mean any and all worldwide (a) rights associated with works of authorship, including copyrights, moral rights, and mask works; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patents and patent rights; (e) other proprietary rights in know-how, inventions, ideas, algorithms, formula, methods, processes, techniques, proprietary information, software, semiconductor devices, and other types of technology; and (f) all registrations, applications, renewals, extensions, combinations, divisions, or reissues of the foregoing. "Legal Requirement" shall mean any federal, state, foreign, local or municipal law, statute, legislation, constitution, ordinance, code, edict, rule, regulation, ruling, directive, pronouncement, or interpretation issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Body. 2 "Nominating Committee" means the governance and nominating committee of the Board of Directors, or similar committee or group of directors (including the entire Board of Directors) fulfilling the role of a nominating committee. "Percentage Interest" shall mean, as to a Stockholder or group of Stockholders, the percentage of the then outstanding Common Stock that is represented by the shares of Common Stock held by such Stockholder or group of Stockholders. "Permitted Transferee" shall mean, as to any Stockholder, a transferee or assignee of such Stockholder's Shares that is an Affiliate of such Stockholder, provided, however, (i) that such Stockholder shall, within ten (10) days after such transfer, furnish to the Company and the other Stockholders written notice of the name and address of such transferee or assignee and (ii) that such transferee shall have agreed in writing to become a party to, and be bound by the terms of, this Agreement and shall have executed a supplemental signature page to this Agreement in form and substance reasonably satisfactory to the Company and the other Stockholders. "Person" shall mean any individual, Entity or Governmental Body. " RFMD Designees " shall mean (i) the Initial RFMD Designee and (ii) such Person or Persons who may be hereafter designated in writing by the RFMD Stockholders for nomination to the Board of Directors pursuant to Section 2.1(b). " RFMD Stockholders " shall mean RFMD and any of its Permitted Transferees who may hereafter become a holder of shares of Voting Stock of the Company and a party to this Agreement in accordance with its terms. "Sale" (including the correlative terms "Sell," "Selling," and "Sold" ) shall mean a sale, exchange, transfer, assignment, lease, encumbrance, hypothecation, pledge or other transfer or disposition of any kind, with or without consideration, including, but not limited to, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary or by operation of law, directly or indirectly, of all or any portion of any shares of Common Stock held by any Stockholder. "Securities Act" shall mean the Securities Act of 1933, as amended. "Shares" shall mean the shares of Common Stock held by any Stockholder. "Stockholder" shall mean each of Conexant Stockholders, Carlyle Stockholders and RFMD Stockholders. "Stockholder Director" shall mean any member of the Board of Directors that is a Carlyle Designee, Conexant Designee or RFMD Designee. "Voting Stock" shall mean, with respect to any Person, the Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other members of the governing body of such Person. 2.1 Composition of Board of Directors. (a) Composition of the Board of Directors on the Effective Date. On the Effective Date, the Board of Directors shall initially consist of nine (9) members. Effective at the Effective Date, the Company and the Stockholders shall take all action necessary to (i) adopt the Certificate of Incorporation and the amended and restated bylaws of the Company to read as set forth on Exhibit A and Exhibit B hereto, respectively, which, among other things, provide for classification of 3 the members of the Board of Directors into three (3) classes (Class I, Class II and Class III) and (ii) cause the following Persons to be elected as members of the Board of Directors of the Company: (A) Allan M. Holt, Todd R. Newnam and Claudius E. Watts IV (together, the " Initial Carlyle Designees "), who shall be elected as a Class I director, Class II director and Class III director, respectively; (B) Donald R. Beall and Dwight W. Decker (together, the " Initial Conexant Designees "), who shall be elected as a Class II director and Class III director, respectively; (C) Jerry D. Neal (the " Initial RFMD Designee "), who shall be elected as a Class III director; (D) Shu Li, who shall be elected as a Class I director; and (E) Donald E. Schrock and R. Douglas Norby, who shall be elected as a Class II director and Class I director, respectively. (b) Nomination of Stockholder Designees. (i) So long as this Agreement remains in effect with respect to the Carlyle Stockholders, in connection with each annual or special meeting of stockholders of the Company at which members of the Board of Directors will be elected, the Company shall, except to the extent required to prevent the Board of Directors from breaching its fiduciary duties to its stockholders under applicable law, use commercially reasonable efforts to take all such action necessary to nominate for election to the Board of Directors (in accordance with the procedures set forth in Section 2.1(c)) a number of individuals designated in writing by Carlyle such that, assuming election of such individuals to the Board of Directors, the Board of Directors shall include three (3) Carlyle Designees; provided that such individuals are reasonably acceptable to the Board of Directors, with the Carlyle Designees abstaining from the determination of such acceptability. Notwithstanding the foregoing, the aggregate number of Carlyle Designees that the Carlyle Stockholders shall be entitled to designate for nomination to the Board of Directors shall be reduced to two (2) at such time as the aggregate Percentage Interest of all Carlyle Stockholders is less than 25%, and the aggregate number of Carlyle Designees that the Carlyle Stockholders shall be entitled to designate for nomination to the Board of Directors shall be reduced to one (1) at such time as the aggregate Percentage Interest of all Carlyle Stockholders is less than 15%. (ii) So long as this Agreement remains in effect with respect to the Conexant Stockholders, in connection with each annual or special meeting of stockholders of the Company at which members of the Board of Directors will be elected, the Company shall, except to the extent required to prevent the Board of Directors from breaching its fiduciary duties to its stockholders under applicable law, use commercially reasonable efforts to take all such action necessary to nominate for election to the Board of Directors (in accordance with the procedures set forth in Section 2.1(c)) a number of individuals designated in writing by Conexant such that, assuming election of such individuals to the Board of Directors, the Board of Directors shall include two (2) Conexant Designees; provided that such individuals are reasonably acceptable to the Board of Directors with the Conexant Designees abstaining from the determination of such acceptability. Notwithstanding the foregoing, the aggregate number of Conexant Designees that the Conexant Stockholders shall be entitled to designate for nomination to the Board of Directors shall be reduced to one (1) at such time as the aggregate Percentage Interest of all Conexant Stockholders is less than 15%. 4 (iii) So long as this Agreement remains in effect with respect to the RFMD Stockholders, in connection with each annual or special meeting of stockholders of the Company at which members of the Board of Directors will be elected, the Company shall, except to the extent required to prevent the Board of Directors from breaching its fiduciary duties to its stockholders under applicable law, use commercially reasonable efforts to take all such action necessary to nominate for election to the Board of Directors (in accordance with the procedures set forth in Section 2.1(c)) one (1) individual designated in writing by the RFMD Stockholders to the extent necessary to cause the Board of Directors to include one (1) RFMD Designee; provided that such individual is reasonably acceptable to the Board of Directors, with the RFMD Director abstaining from the determination of such acceptability. (c) Nominating and Designation Procedures. Not less than 45 days prior to the mailing by the Company to its stockholders of written notice of any annual or special meeting of the stockholders of the Company at which members of the Board of Directors will be elected, the Company shall deliver to each of the Stockholders a written notice (an " Election Notice ") (i) specifying the date of such meeting of stockholders and (ii) indicating the number (if any) of Carlyle Designees, Conexant Designees and RFMD Designees that the respective Stockholders are entitled to designate for nomination for election to the Board of Directors at such meeting of stockholders. Each Stockholder or group of Stockholders entitled to designate nominees for election to the Board of Directors at such meeting shall provide written notice (a " Nomination Notice ") to the Board of Directors setting forth the names of the individuals so designated by such Stockholder or group of Stockholders within 15 days of receipt of the Election Notice. Each individual designated as a nominee for the Board of Directors pursuant to Section 2.1 shall be nominated for such position by the Nominating Committee unless (i) the Nominating Committee, in the exercise of its fiduciary duties, shall determine that such designee is not qualified to serve on the Board of Directors or (ii) the Board of Directors or the Nominations Committee otherwise determines that such nomination would constitute a breach of its fiduciary duties under applicable law, or (iii) a majority of the members of the Board of Directors other than the designees of the designating Stockholder reasonably determines such designee not to be acceptable as provided in Section 2.1(b) or (iv) the operation of this Section 2.1 violates any applicable Legal Requirement. If the Nominating Committee shall determine that such designee is not so qualified or the Board of Directors should determine that such designee cannot be nominated for election to the Board of Directors consistent with the exercise of fiduciary duties of the Board of Directors, the Company shall notify the designating Stockholder in writing within 15 days of the date of the applicable Nomination Notice and shall provide such designating Stockholder with the opportunity to specify one or more additional designees pursuant to Section 2.1(b) who shall become nominees, subject to the qualification and other requirements set forth in this Section 2.1(c). In the event that any Stockholder or Group of Stockholders does so designate an additional designee for consideration of the Nominating Committee and the Board of Directors, such designee shall replace the prior designee of such Stockholder or group of Stockholders and shall constitute the designee of such Stockholder or group of Stockholders for nomination for election to the Board of Directors at such meeting. (d) Solicitation and Voting of Shares. The Company shall use commercially reasonable efforts to solicit from stockholders of the Company eligible to vote for the election of members of the Board of Directors proxies in favor of the nominees designated in accordance with Section 2.1(b). (e) Agreement to Vote. Each Stockholder agrees to vote all shares of Voting Stock of the Company beneficially owned by such Stockholders at any meeting called for the election of members of the Board of Directors, and to execute any written consent related to the election of members of the Board of Directors, in favor of the election of the Carlyle Designees, Conexant 5 Designees, and the RFMD Designees designated by the Stockholders for election to the Board of Directors as provided in Section 2.1(b), whether or not such individual is so nominated by the Board of Directors. (f) Vacancies. Upon the death, disability, resignation or removal of a Stockholder Director, the Stockholder or group of Stockholders that designated such Stockholder Director shall be entitled to designate a replacement Stockholder Director to fill such vacancy (such designee being referred to as a " Replacement Director Designee "). Upon designation of such Replacement Director Designee, the Board of Directors shall, appoint such Replacement Director Designee to fill the vacancy created by such death, disability, resignation or removal of the Stockholder Director in question except to the extent that (i) the Nominating Committee, in the exercise of its fiduciary duties, shall determine that such appointment is not qualified to serve on the Board of Directors, (ii) the Board of Directors or the Nominating Committee otherwise determines that such appointment would constitute a breach of its fiduciary duties under applicable laws, (iii) a majority of the members of the Board of Directors other than the designees of the Stockholder that designated such Replacement Director Designee reasonably determines such Replacement Director Designee not to be acceptable as provided in Section 2.1(b) or (iv) the operation of this Section 2.1 violates any applicable Legal Requirement. (g) Agreements to Effect Resignation. (i) In the event that the Percentage Interest of either the Carlyle Stockholders or the Conexant Stockholders is such that there are more Carlyle Designees or Conexant Designees on the Board of Directors than the Carlyle Stockholders or the Conexant Stockholders, as the case may be, has the right to designate pursuant to Section 2.1(b)(i) or Section 2.1(b)(ii), respectively, upon the written request of the Board of Directors, the Carlyle Stockholders or the Conexant Stockholders, as applicable, shall cause a number of Carlyle Designees or Conexant Designees, as the case may be, to resign from their position as members of the Board of Directors to the extent necessary to cause the number of Carlyle Designees or Conexant Designees, as the case may be, serving as members of the Board of Directors to equal the number of members of the Board of Directors that the Carlyle Stockholders or the Conexant Stockholders, as the case may be, then are entitled to designate pursuant to Section 2.1(b)(i) or Section 2.1(b)(ii) hereof, as applicable. (ii) In the event the rights and obligations of any Stockholders or group of Stockholders under this Agreement are terminated pursuant to Section 5.1(b) or Section 5.1(c), upon the written request of the Board of Directors, such Stockholder shall cause the resignation of the Stockholder Directors designated by such Stockholder. (h) Exchange or Other Requirements. If any Legal Requirements or the rules of the principal exchange or quotation system on which the Common Stock is listed or traded requires a different composition of the Board of Directors or any committee thereof than that provided in this Article 2 or otherwise requires modification to this Agreement, the composition of the Board of Directors or any committee thereof or the terms of this Agreement, as applicable, will be modified to reflect such rules; provided that the members of the Board of Directors or committee, as the case may be, will be designated, as closely as possible, so as to give effect to the provisions of this Article 2. 2.2 Certificate of Incorporation and By-Laws. The Company and the Stockholders shall take or cause to take all lawful action necessary to ensure at all times that the Certificate of Incorporation and Bylaws are not, at any time, inconsistent with the provisions of this Agreement. 2.3 Termination of Board Representation Agreements. Effective as of the Effective Date, the following agreements among the Company, Newport Fab, LLC ("Newport Fab"), Carlyle, Conexant and 6 RFMD, shall automatically terminate and cease to be of any force or effect: (i) that certain Second Amended and Restated Carlyle Board Representation Agreement dated as of October 15, 2002, by and among the Company, Newport Fab, Carlyle, Conexant and RFMD, (ii) that certain Second Amended and Restated Conexant Board Representation Agreement dated as of October 15, 2002, by and among the Company, Newport Fab, Carlyle, Conexant and RFMD and (iii) that certain RFMD Board Representation Agreement dated as of October 15, 2002, by and among the Company, Newport Fab, Carlyle, Conexant and RFMD. 2.4 Intention to Act as a Group. Each Stockholder is entering into this Agreement with the intent to act as members of a group (within the meaning of Section 13(d) of the Exchange Act) with the other Stockholders with respect to the voting of shares of Common Stock for election of members of the Board of Directors so long as the obligations of such Stockholder under Section 2.1(e) to this Agreement remain in effect. 3.1 Maintenance of Books and Records. So long as this Agreement remains in effect, the Company shall, and shall cause its subsidiaries to, keep proper books and records and account in which full and correct entries shall be made of all financial transactions and the assets of the business of the Companies and its subsidiaries in accordance with United States generally accepted accounting principles (" GAAP "), to the extent GAAP is applicable. 3.2 Access and Review Rights. So long as this Agreement remains in effect, (i) the Company shall, and shall cause its subsidiaries to, provide each Stockholder with reasonable access to all books and records of the Company and its subsidiaries, including, without limitation, financial data (including projections) and operating data covering the business, operations and financial performance of the Company and its subsidiaries, and (ii) each Stockholder shall have the right to consult from time-to-time with management of the Company and its subsidiaries at their places of business regarding operating and financial matters. Notwithstanding any provision hereof to the contrary, the Company reserves the right to exclude any Stockholder (including any Stockholder Director designated for nomination by such Stockholder), from access to any material or information or meeting or portion thereof if the Company believes that such exclusion is necessary or appropriate to preserve attorney-client privilege or to protect Company Confidential Information that the Company reasonably believes may be used by such Stockholder in a manner adverse to the Company or its Stockholders if the exercise of such right would not limit such Stockholder's rights under applicable law. 3.3 Confidentiality. (a) Each Stockholder agrees that, except as may be required to be disclosed pursuant to the Exchange Act or the Securities Act (other than any disclosure required under the Exchange Act or Securities Act solely as a result of any Stockholder's trading in, or desire to trade in, any securities of the Company) and except as permitted by Section 3.3(b) below, such Stockholder will not during the term of this Agreement or thereafter, (i) disclose, directly or indirectly, to any Person (other than to its Affiliates, subsidiaries, employees and/or agents) or (ii) use (other than in connection with such Stockholder's proper performance of its obligations hereunder or otherwise in connection with such Stockholder's investment in the Company), any Company Confidential Information. (b) Each Stockholder agrees to protect, and to cause its Stockholder Directors to protect, Company Confidential Information in such Stockholder's possession subject to Section 3.3(a) to a degree and in a manner consistent with protection that it gives to its own confidential or proprietary information and to take any and all actions reasonably necessary or appropriate to insure the continued confidentiality and protection of such information. In the event that any 7 Stockholder is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any of the confidential information that it has agreed to keep confidential hereunder, (i) such Stockholder shall promptly notify the Company of such requested or required disclosure in order to permit the Company to seek a protective order and (ii) such Stockholder shall be permitted to disclose such Company Confidential Information, provided that it will provide the Company and each other Stockholder with prompt notice of such request so that the Company and/or any other Stockholder may seek an appropriate protective order. In the event that such protective order or other remedy is not obtained, such Stockholder agrees that it will furnish only that portion of any confidential information that is legally required and will exercise its reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of any confidential information being disclosed. 4.1 Compliance with Securities Laws. Each Stockholder agrees not to Sell any portion of its shares of Common Stock unless and until (i) there is then in effect a registration statement under the Securities Act covering such proposed Sale and such Sale is made in accordance with such registration statement or (ii) such Sale is exempt from the registration requirements of the Securities Act. 4.2 Certain Restrictions on Transfer. No Stockholder shall Sell any shares of Common Stock to any Affiliate of such Stockholder unless such Affiliate shall have agreed in writing to become a party to, and be bound by, this Agreement and has executed a supplemental signature page to this Agreement in form and substance reasonably satisfactory to the Company and the other Stockholders. 4.3 Legends. Each certificate representing shares of Common Stock held of record by any Stockholder shall be stamped or otherwise imprinted with legends substantially similar to the following (in addition to any legend required under applicable state securities laws): THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT IN COMPLIANCE THEREWITH. The Company shall be obligated to issue promptly certificates without the legend listed above at the request of any holder thereof if the holder shall have obtained an opinion of counsel (which counsel may be counsel to the Company) reasonably acceptable to the Company, to the effect that the securities proposed to be Sold may lawfully be so Sold without registration, qualification or such legend. Any legend endorsed on an instrument pursuant to applicable state securities laws and the stop-transfer instructions with respect to such securities shall be removed upon receipt by the Company of an order of the appropriate blue sky authority authorizing such removal. 5.1 Termination. Notwithstanding anything to the contrary contained in this Agreement: (a) This Agreement shall be terminated by mutual written consent of the Conexant Stockholders, the Carlyle Stockholders and the RFMD Stockholders. (b) The rights and obligations of the Carlyle Stockholders under this Agreement shall automatically terminate at such time as the Carlyle Stockholder's aggregate Percentage Interest is less than five percent (5%). The rights and obligations of the Conexant Stockholders under this Agreement shall automatically terminate at such time as the Conexant Stockholders' aggregate 8 Percentage Interest is less than five percent (5%). The rights and obligations of the RFMD Stockholders under this Agreement shall automatically terminate at such time as the RFMD Stockholders' aggregate Percentage Interest is less than five percent (5%). (c) Any of the Carlyle Stockholders, the Conexant Stockholders or the RFMD Stockholders, respectively, may terminate their rights and obligations under this Agreement upon written notice to the Company and the other Stockholders during any period in which the aggregate Percentage Interest of such Carlyle Stockholders, such Conexant Stockholders or such RFMD Stockholders, as the case may be, is less than ten percent (10%) but more than five percent (5%). 5.2 Effect of Termination. (a) If this Agreement is terminated pursuant to Section 5.1(a), all further obligations of the parties under this Agreement shall terminate, except that no party shall be relieved of any obligation or other liability arising from any breach by such party of any provision of this Agreement occurring prior to the date of such termination. (b) If the rights and obligations of any Stockholder are terminated pursuant to Section 5.1(b) or Section 5.1(c), all references to such Stockholder in this Agreement shall be deemed to be deleted and all further obligations of such Stockholder under this Agreement shall terminate, except that: (a) such Stockholder shall not be relieved of any obligation or other liability arising from any breach by such Stockholder of any provision of this Agreement occurring prior to the date of such termination and (b) such Stockholder shall comply with its obligations under Section 2.1(g). 6.1 Mutual Representations and Warranties of the Stockholders. As of the date hereof, each Stockholder hereby represents, warrants and covenants to the Company and to the other Stockholders that: (a) Organization. The Stockholder is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation with all requisite power and authority to enter into this Agreement and to perform its obligations hereunder. (b) Enforceability. This Agreement constitutes the legal, valid and binding obligation of the Stockholder enforceable against such Stockholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity. (c) Consents. No consents or approvals are required from any Governmental Body or other Person for the Stockholder to enter into this Agreement. All corporate action on the part of such Stockholder necessary for the authorization, execution and delivery of this Agreement and the performance by such Stockholder of its obligations hereunder have been duly taken. (d) No Conflict. The execution and delivery of this Agreement by the Stockholder and the performance by such Stockholder of its obligations hereunder by the Stockholder do not conflict with or contravene the provisions of its organizational documents or any material agreement or instrument by which it or its properties are bound or any Legal Requirement to which it or its properties are subject. (e) No Litigation. There are no actions, suits or proceedings pending or, to the Stockholder's knowledge, threatened, against the Stockholder before any court or governmental 9 agency that question the Stockholder's right to enter into or perform this Agreement or that question the validity of this Agreement. 6.2 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express delivery service or by facsimile) to the address or facsimile telephone number set forth beneath the name of such party below (or to such other address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto): if to the Company: Jazz
Semiconductor, Inc. with a copy to: Jazz
Semiconductor, Inc. if to the Carlyle Stockholders:: The
Carlyle Group with a copy to: Latham & Watkins if to the Conexant Stockholders: Conexant Systems, Inc. with a copy to: Cooley
Godward LLP 10 RF
Micro Devices, Inc. with a copy to: Womble
Carlyle Sandridge & Rice, PLLC 6.3 Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Delaware (without giving effect to principles of conflicts of laws). 6.4 Effective Date; Entire Agreement. Until the Effective Date occurs, this Agreement will not be effective or binding upon the parties hereto. Upon the occurrence of the Effective Date, this Agreement will automatically amend, restate and supersede the Second Amended Stockholder Agreement in its entirety, and the Second Amended Stockholder Agreement shall terminate. Notwithstanding anything to the contrary contained in this Agreement, if the Effective Date does not occur by December 31, 2004, this Agreement will automatically terminate on such date. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein and therein. 6.5 Waiver. (a) No failure on the part of any Person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. (b) No Person shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Person; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. 6.6 Amendments. (a) This Agreement may be amended, modified, altered or supplemented only by means of a written instrument duly executed and delivered on behalf of the Company, the Conexant Stockholders, the Carlyle Stockholders and the RFMD Stockholders. (b) Notwithstanding Section 6.6(a) hereof, Permitted Transferees may become parties to this Agreement, as provided for herein, and upon compliance with the requirements set forth in the definition of "Permitted Transferee", such Permitted Transferee shall be deemed a Stockholder for all purposes hereunder. 11 6.7 Remedies Cumulative; Specific Performance. The rights and remedies of the parties hereto shall be cumulative (and not alternative). The parties hereto agree that: (a) in the event of any breach or threatened breach by any party of any covenant, obligation or other provision set forth in this Agreement, the other parties shall be entitled (in addition to any other remedy that may be available to it) to (i) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision, and (ii) an injunction restraining such breach or threatened breach; and (b) such other parties shall not be required to provide any bond or other security in connection with any such decree, order or injunction or in connection with any related action or proceeding. 6.8 Severability. In the event that any provision of this Agreement, or the application of any such provision to any Person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law. 6.9 Successors, and Assigns. Each and all of the covenants, terms, provisions, and agreements contained in this Agreement shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective permitted successors and assigns. Neither the Company nor any Stockholder may assign their respective rights or obligations under this Agreement (by operation of law or otherwise) to any Person (other than to a Permitted Transferee) without the prior written consent of the Company and the other Stockholders. This Agreement does not bind any subsequent transfer of any shares of Common Stock other than any Permitted Transferee that becomes a party to this Agreement. 6.10 Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. 6.11 Construction. (a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders. (b) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. (c) As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation." (d) Except as otherwise indicated, all references in this Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this Agreement and Exhibits to this Agreement. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 12 IN WITNESS WHEREOF, the undersigned have executed this THIRD AMENDED AND RESTATED STOCKHOLDER AGREEMENT as of the date first above written.
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S-3 EXHIBIT A AMENDED AND RESTATED CERTIFICATE OF INCORPORATION Jazz Semiconductor, Inc., a corporation organized and existing under the laws of the State of Delaware (hereinafter referred to as the " Corporation "), hereby certifies as follows: 1. The Corporation filed its original Certificate of Incorporation (the " Original Certificate of Incorporation ") with the Secretary of State of the State of Delaware (the "Delaware Secretary of State") on February 15, 2002 under the name "Jazz Semiconductor Systems, Inc." 2. This Amended and Restated Certificate of Incorporation of the Corporation (the " Amended and Restated Certificate of Incorporation ") has been duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware by the directors and stockholders of the Corporation. This Amended and Restated Certificate of Incorporation restates, amends and supercedes the provisions of the Original Certificate of Incorporation and all prior amendments and restatements of the Certificate of Incorporation. 3. The Certificate of Incorporation of the Corporation shall be amended and restated to read in its entirety as follows: I. The name of this corporation is Jazz Semiconductor, Inc. II. The address of the registered office of the Corporation in the State of Delaware is 9 East Loockerman Street, City of Do | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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