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Exhibit 10.15
TERMINATION AGREEMENT
THIS AGREEMENT is made as of August 6, 1998 by and among Taiwan
Semiconductor Manufacturing Company Limited ("TSMC"), a company organized under
the laws of the Republic of China ("R.O.C."), with its registered address at No.
121, Park Avenue 3, Science Based Industrial Park, Hsinchu, Taiwan, R.O.C.,
Monolithic System Technology Incorporated ("MOSYS"), a company organized under
the laws of California, United States of America ("U.S.A.") with its registered
address at 2670 Seely Avenue, San Jose, CA 95134, U.S.A., and M-One Technology
Incorporated ("MONE"), a company organized under the laws of the Republic of
China, with its registered address at Room 106, 47 Park Avenue 2, Science Based
Industrial Park, Hsinchu, Taiwan, R.O.C.
WHEREAS, TSMC, MOSYS and MONE (collectively referred to as the
"Parties") have entered into an option agreement ("Option Agreement", attached
hereto as Attachment 1) on November 23, 1995 and amended subsequently on
September 23, 1996 ("Amendment", attached hereto as Attachment 2); and
WHEREAS, the Parties desire to terminate the Option Agreement and the
Amendment, to release each other of all obligations and commitments contained
therein and to terminate any rights associated therewith;
NOW, THEREFORE, the Parties agree as follows:
1. This Agreement is effective as of the date hereof.
2. The Parties shall not be responsible for any further duties,
obligations and commitments, and the Parties shall not be entitled to
any further rights, including but not limited to wafer capacity and
option fee, specified in and under the Option Agreement and the
Amendment, except TSMC's right stipulated in Section 3 of this
Agreement.
3. TSMC is granted the right to purchase UP TO One Million Two Hundred
Thousands (1,200,000) shares of MOSYS' common stock at the exercise
price of U.S. Six Dollars and Fifty Cents (US$6.50) per share anytime
prior to the closing of the issuance of shares of common stock of Mosys
in an underwritten public offering or when Mosys is acquired by third
parties.
4. This Agreement does not affect the rights and obligations of the
Parties existing and accrued prior to the date hereof. Specifically,
MOSYS and MONE shall be and remain liable to TSMC for any obligations
and duties, including all outstanding payments for the wafers already
ordered and/or shipped.
5. The duty of confidentiality of the Parties contained in the Option
Agreement and the Amendment shall survive after this Agreement.
6. This Agreement shall be governed and interpreted in accordance with the
laws of the Republic of China.
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IN WITNESS WHEREOF, the Parties have signed and dated this Agreement in
the spaces provided below:
TAIWAN SEMICONDUCTOR MONOLITHIC SYSTEM
MANUFACTURING COMPANY TECHNOLOGYINCORPORATED
LIMITED
BY: BY:
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NAME: NAME:
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TITLE: TITLE:
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DATE: DATE:
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M-ONE TECHNOLOGY
INCORPORATED
BY:
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NAME:
---------------------------------
TITLE:
--------------------------------
DATE:
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMPANY OR WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A
NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.
August 6, 1998
MONOLITHIC SYSTEM TECHNOLOGY, INC.
a California corporation
COMMON STOCK PURCHASE WARRANT AGREEMENT
THIS CERTIFIES THAT, for value received, Taiwan Semiconductor
Manufacturing Co., Ltd. (hereinafter, the "Holder"), is entitled, upon
the terms and subject to the conditions hereinafter set forth, to
purchase from Monolithic System Technology, Inc., a California
corporation (the "Company"), that number of fully paid and
nonassessable shares of the Company's Common Stock at the purchase
price per share as set forth in Section 1 below.
TERMS AND CONDITIONS OF WARRANT
1. NUMBER OF SHARES; EXERCISE PRICE; TERM.
(a) The Holder shall be entitled to subscribe for and
purchase up to One Million, Two Hundred Thousand (1,200,000)
shares of the fully paid and nonassessable Common Stock of the
Company (the "Shares") at an exercise price of U.S. $6.50 per
share (the "Exercise Price").
(b) The Holder may exercise this Warrant at any time and
from time to time prior to 5:00 p.m. (California Time) on
August 6, 2002 (the "Expiration Date"). This Warrant shall
expire and cease to be exercisable after the Expiration Date.
2. EXERCISE OF WARRANT. This Warrant may be exercised by the Holder as to
the whole or any lesser number of the Shares covered hereby, at any time and
from time to time prior to the Expiration Date, upon surrender of this Warrant
to the Company at its principal executive office together with the Notice of
Exercise and Investment Representation Statement annexed hereto as EXHIBITS A
and B. respectively, duly
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completed and executed by the Holder, and payment to the Company of the
aggregate Exercise Price for the Shares to be purchased in the form of a check
made payable to the Company in an amount equal to the aggregate Exercise Price
for the Shares to be purchased. Certificates for the Shares so purchased shall
be delivered to the Holder within a reasonable time not to exceed 21 days after
exercise of the stock purchase rights represented by this Warrant. The exercise
of this Warrant shall be deemed to have been effected on the day on which the
Holder surrenders this Warrant to the Company and satisfies all of the
requirements of this Section 2. Upon such exercise, the Holder will be deemed a
shareholder of record of those Shares for which the warrant has been exercised
with all rights of a shareholder (including, without limitation, all voting
rights with respect to such Shares and all rights to receive any dividends with
respect to such Shares). If this Warrant is to be exercised in respect of less
than all of the Shares covered hereby, the Holder shall be entitled to receive a
new warrant covering the number of Shares in respect of which this Warrant shall
not have been exercised and for which it remains subject to exercise. Such new
warrant shall be in all other respects identical to this Warrant.
3. COVENANTS OF THE COMPANY. The Company covenants and agrees that all
equity securities which may be issued upon the exercise of the rights
represented by this Warrant, upon issuance and payment therefor in accordance
herewith, will be duly authorized, validly issued, fully paid, and nonassessable
shares of capital stock of the Company. The Company further covenants and agrees
that, during the period within which the stock purchase rights represented by
this Warrant may be exercised, the Company will at all times have duly
authorized and duly reserved for issuance upon the exercise of the purchase
rights evidenced by this Warrant a number of shares of its Common Stock
sufficient for such issuance.
4. TRANSFER, EXCHANGE, OR LOSS OF WARRANT.
(a) This Warrant may not be assigned or transferred except as
provided in this Section 4 and in accordance with and subject to the
provisions of the Securities Act of 1933, as amended, and the Rules and
Regulations promulgated thereunder (collectively, the "Securities
Act"). Any purported transfer or assignment made other than in
accordance with this Section 4 shall be null and void and of no force
or effect.
(b) Prior to any transfer of this Warrant, other than in an
offering registered under the Securities Act, the Holder shall notify
the Company of its intention to effect such transfer, indicating the
circumstances of the proposed transfer and, upon request, furnish the
Company with an opinion of its counsel, in form and substance
satisfactory to counsel for the Company, to the effect that the
proposed transfer may be made without registration under the Securities
Act or qualification under any applicable state securities laws. The
Company will promptly notify the Holder if the opinion of counsel
furnished to the Company is satisfactory to counsel for the Company.
Unless the Company notifies the Holder within ten (10) days after its
receipt of such opinion that such opinion is not
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satisfactory to counsel for the Company, the Holder may proceed to
effect the transfer.
(c) Unless a registration statement under the Securities Act is
effective with respect to the Shares or any other security issued upon
exercise of this Warrant, the certificate representing such Shares or
other securities shall bear the following legend, in addition to any
legend imposed by applicable state securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). NO SALE OR DISPOSITION MAY
BE EFFECTED WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY OR WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR
THE HOLDER, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE ACT OR RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION.
(d) Upon receipt by the Company of satisfactory evidence of loss,
theft, destruction, or mutilation of this Warrant and of indemnity
satisfactory to the Company, and upon surrender and cancellation of
this Warrant, if mutilated, the Company will execute and deliver a new
Warrant of like tenor and date and any such lost, stolen, or destroyed
Warrant shall thereupon become void. Any such new Warrant executed and
delivered shall constitute an additional contractual obligation on the
part of the Company, whether or not the Warrant so lost, stolen,
destroyed, or mutilated shall be at any time enforceable by anyone.
5. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which such holder would otherwise be
entitled, such holder shall be entitled, at its option, to receive either (i) a
cash payment equal to the excess of the Fair Market Value for such fractional
share above the Exercise Price for such fractional share (as mutually determined
by the Company and the Holder) or (ii)a whole share if the Holder tenders the
Exercise Price for one whole share.
6. NO RIGHTS AS SHAREHOLDERS. This Warrant does not entitle the holder
hereof to any voting rights, dividend rights, or other rights as a shareholder
of the Company prior to the exercise hereof.
7. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday or a Sunday or shall be a legal holiday, then such action
may be taken or such right may be exercised on the next succeeding day not a
Saturday or a Sunday or a legal holiday.
8. ADJUSTMENTS. The Exercise Price per Share and the number of Shares
purchasable hereunder shall be subject to adjustment from time to time as
follows:
(a) MERGER. If at any time there shall be a merger or
consolidation of the Company with or into another corporation when the
Company is not the surviving
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corporation, then, as a part of such merger or consolidation, lawful
provision shall be made so that the holder of this Warrant shall
thereafter be entitled to receive upon exercise of this Warrant, during
the period specified herein and upon payment of the aggregate Exercise
Price then in effect, the number of shares of stock or other securities
or property of the successor corporation resulting from such merger or
consolidation, to which a holder of the stock deliverable upon exercise
of this Warrant would have been entitled in such merger or
consolidation if this Warrant had been exercised immediately before
such merger or consolidation. In any such case, appropriate adjustment
shall be made in the application of the provisions of this Warrant with
respect to the rights and interests of the Holder after the merger or
consolidation.
(b) RECLASSIFICATION, ETC. If the Company shall, at any time, by
subdivision, combination, or reclassification of securities or
otherwise, change any of the securities as to which purchase rights
under this Warrant exist into the same or a different number of
securities of any other class or classes, the Exercise Price shall be
adjusted such that this Warrant shall thereafter represent the right to
acquire such number and kind of securities as would have been issuable
as the result of such change with respect to the securities which were
subject to the purchase rights under this Warrant immediately prior to
such subdivision, combination, reclassification or other change.
(c) SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the Company at
any time while this Warrant remains outstanding and unexpired shall
split, subdivide or combine the securities as to which purchase rights
under this Warrant exist, the Exercise Price shall be proportionately
decreased in the case of a split or subdivision or proportionately
increased in the case of a combination.
9. NOTICE OF ADJUSTMENTS; NOTICES. Whenever the Exercise Price or number
of Shares issuable upon exercise hereof shall be adjusted pursuant to Section 8
hereof, the Company shall issue a written notice setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated and the Exercise Price and number
of Shares purchasable hereunder after giving effect to such adjustment, and
shall cause a copy of such notice to be mailed to the holder of this Warrant.
10. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon any
successors or assigns of the Company.
(b) GOVERNING LAW. This Warrant shall be governed by and construed
in accordance with the laws of the State of California as applied to
agreements between California residents entered and to be performed
entirely within California.
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(c) ATTORNEYS' FEES. In any litigation, arbitration, or court
proceeding between the Company and the holder relating hereto, the
prevailing party shall be entitled to reasonable attorneys' fees and
expenses incurred in enforcing this Warrant.
(d) AMENDMENTS. This Warrant may be amended and the observance of
any term of this Warrant may be waived only with the written consent of
the Company and the Holder.
(e) NOTICE. Any notice, request, or other communication required
or permitted hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered, sent by facsimile, or mailed
by registered or certified mail, postage prepaid, or by recognized
overnight courier or personal delivery at the respective addresses or
facsimile number of the parties as set forth below. Any party hereto
may by notice so given change its address for future notice hereunder.
Notice shall conclusively be deemed to have been given when received.
If to the Holder: Taiwan Semiconductor Manufacturing Co., Ltd.
No. 121, Park Avenue 3
Science-Based Industrial Park
Hsinchu, Taiwan
Republic of China
If to the Company: Monolithic System Technology, Inc.
1020 Stewart Drive
Sunnyvale, California 94086
Attn: Chief Financial Officer
Fax: (408) 731-18993
(f) INVESTOR RIGHTS. All Shares issuable upon exercise of this
Warrant are subject to the registration rights provisions of the Fourth
Amended and Restated Investor Rights Agreement dated March 31, 1998
(the "Rights Agreement"), as such agreement may be amended from time to
time, as evidenced by an Addendum to the Rights Agreement executed by
the original holder of this Warrant in connection with its purchase of
the Notes and this Warrant pursuant to the Purchase Agreement.
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IN WITNESS WHEREOF, the Company and the Holder have caused this Common
Stock Purchase Warrant Agreement to be executed as of the date first above
written.
MONOLITHIC SYSTEM TECHNOLOGY, INC.
By:
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Name:
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Title:
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Acknowledged and Agreed:
TAIWAN SEMICONDUCTOR
MANUFACTURING CO., LTD.
By:
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Name:
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Title:
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