EXHIBIT 10.1
REFINANCING AGREEMENT
AGREEMENT dated as of November 6, 2002 between Conexant Systems, Inc.,
a Delaware corporation ("CONEXANT"), and Skyworks Solutions, Inc., a Delaware
corporation formerly known as Alpha Industries, Inc. ("SKYWORKS").
PRELIMINARY STATEMENTS
A. Skyworks proposes to issue Junior Notes (as defined below) in
an aggregate principal amount of not less than $160 million.
B. Skyworks proposes to apply a portion of the proceeds of the
issuance of such Junior Notes to indebtedness owing by it to Conexant under the
Financing Agreement (as defined below).
C. Skyworks also proposes to issue Senior Convertible Notes (as
defined below) to Conexant in exchange for indebtedness outstanding under the
Financing Agreement.
SECTION 1
DEFINED TERMS; RULES OF CONSTRUCTION
1.1 DEFINED TERMS. In this Agreement, terms defined in Exhibit A shall have
the meanings set forth therein, terms defined in the preamble, preliminary
statements or other sections of this Agreement shall have the meanings set forth
therein, and capitalized terms used but not otherwise defined in this Agreement
which are defined in the Financing Agreement shall have the meanings set forth
in the Financing Agreement.
1.2 RULES OF CONSTRUCTION. The rules of construction set forth in Exhibit A
shall apply to this Agreement.
SECTION 2
REFINANCING
2.1 REPAYMENT OF NOTES. Subject to the terms and conditions of this
Agreement, immediately after the closing of the issuance and sale of Junior
Notes by Skyworks on the Closing Date, Skyworks shall make the following
payments to Conexant:
2.1.1 an amount equal to:
(A) if the aggregate purchase price payable to
Skyworks for the Junior Notes minus the sum of (1)
$120 million plus (2)
50% of the amount payable by Skyworks as commissions,
discounts, underwriting or placement fees in
connection with the sale of the Junior Notes (the
"SPREAD") is less than $40 million, then $105 million
minus 50% of the Spread, or
(B) otherwise, $105 million,
which amount shall be applied by Conexant as a prepayment or
repayment of Acquisition Notes; plus
2.1.2 $15 million, which amount shall be applied by Conexant as a
repayment of principal of Revolving Loans; plus
2.1.3 if the Net Cash Proceeds from the sale of Junior Notes exceeds
$160 million, an amount equal to 50% of the Net Cash Proceeds
in excess of $160 million, which amount shall be applied by
Conexant as a repayment of principal of Revolving Loans.
2.2 EXCHANGE OF INTERIM CONVERTIBLE NOTES. Subject to the terms and
conditions of this Agreement, immediately after the payments required by Section
2.1 have been made, Interim Convertible Notes shall be exchanged for Acquisition
Notes as follows:
2.2.1 Skyworks shall authorize, execute, issue and deliver to
Conexant Interim Convertible Notes, dated the Closing Date, in
an aggregate principal amount equal to the aggregate principal
amount of the Acquisition Notes then outstanding (after giving
effect to the prepayment made pursuant to Section 2.1) in
exchange for Acquisition Notes delivered by Conexant in
accordance with Section 2.2.2.
2.2.2 Conexant shall deliver to Skyworks, against receipt of Interim
Convertible Notes as provided in Section 2.2.1, all of the
Acquisition Notes, marked "Paid in Full."
2.2.3 Conexant and Skyworks agree that the exchange contemplated by
this Section 2.2 shall be made in a manner that will not
require registration under the Securities Act.
2.3 SENIOR CONVERTIBLE NOTES. Subject to the terms and conditions of this
Agreement, promptly and in any event no later than ten days after the Closing
Date, Skyworks shall authorize, execute and deliver the Indenture and the other
Senior Note Documentation (other than Senior Convertible Notes) and, thereafter,
promptly after any demand by Conexant in accordance with Section 9 of the
Interim Convertible Notes, shall issue, execute and deliver to Conexant Senior
Convertible Notes in exchange for Interim Convertible Notes, as follows:
2.3.1 Skyworks shall issue Senior Convertible Notes, dated the
Closing Date, in an aggregate principal amount equal to the
aggregate principal amount of Interim Convertible Notes to be
exchanged.
2.3.2 Conexant shall deliver to Skyworks, against receipt of the
Senior Convertible Notes as provided in Section 2.3.1, the
Interim Convertible Notes to be exchanged, marked "Paid in
Full."
2.3.3 Conexant and Skyworks agree that the exchange contemplated by
this Section 2.3 shall be made in a manner that will not
require registration under the Securities Act.
2.4 ADDITIONAL SENIOR CONVERTIBLE NOTES. Subject to the terms and
conditions of this Agreement, Skyworks shall have the right to repay a portion
of the aggregate principal amount of Revolving Loans outstanding after the
payments provided for in Section 2.1 by issuing additional Senior Convertible
Notes as follows:
2.4.1 If at any time the aggregate outstanding principal amount of
Revolving Loans is less than $20 million (after giving effect
to any repayment provided in Section 2.1) as a result of
repayments made in dollars, and Skyworks elects to terminate
the entire Commitment and the Financing Agreement, Skyworks
shall repay the entire principal amount of Revolving Loans
then outstanding and may elect to make such repayment by
authorizing, executing, issuing and delivering to Conexant
Senior Convertible Notes in an aggregate principal amount
equal to the entire principal amount of Revolving Loans then
outstanding.
2.4.2 Upon such repayment of principal, issuance of such Senior
Convertible Notes, and repayment, in dollars, of all accrued
interest and fees and all other amounts due and owing under
the Financing Agreement to the date of repayment, the
Commitment shall terminate, the Termination Date shall occur,
no Loans shall be deemed outstanding under the Financing
Agreement, Conexant shall deliver any Revolving Note marked
"Paid in Full" and the provisions in Section 9.6 of the
Financing Agreement shall apply.
2.4.3 Conexant and Skyworks agree that the exchange contemplated by
this Section 2.4 shall be made in a manner that will not
require registration under the Securities Act.
SECTION 3
AMENDMENT OF
FINANCING AGREEMENT
3.1 AMENDMENT OF FINANCING AGREEMENT. Subject to the terms and conditions
of this Agreement and the Amendment, on the Closing Date, the Financing
Agreement shall be amended, effective as of the Closing Date, as set forth in
the Amendment, which shall be executed and delivered by the parties thereto.
3.2 REGISTRATION RIGHTS AGREEMENT. Subject to the terms and conditions of
this Agreement, on the Closing Date, Skyworks and Conexant shall execute and
deliver the Registration Rights Agreement.
SECTION 4
CONDITIONS PRECEDENT
4.1 CONDITIONS TO EFFECTIVENESS OF THIS AGREEMENT. This Agreement shall
become effective on the date that each of the following conditions shall have
been satisfied (or waived in accordance with Section 6.2):
4.1.1 This Agreement shall have been signed by each of the parties
hereto.
4.1.2 Skyworks shall have executed and delivered an agreement for
the sale of the Junior Notes on the terms and conditions set
forth in the Junior Note Documentation.
4.2 CONDITIONS PRECEDENT TO EXCHANGES. Conexant's obligation to exchange
the Revolving Note for Senior Convertible Notes pursuant to Section 2.4 shall be
subject to satisfaction of the following conditions precedent:
4.2.1 Each of the conditions set forth in Section 4.1 shall be
satisfied as of the date of the exchange.
4.2.2 The Senior Note Documentation shall have become effective.
4.2.3 No event which, with notice, lapse of time or both, would
cause or permit any Senior Convertible Note to become or be
declared due and payable prior to its stated maturity shall
have occurred and be continuing as of the date of such
exchange.
4.2.4 The money repayment required by Section 2.4.1 shall be funded
from sources other than Conexant and shall represent all of
the Net Cash Proceeds to Skyworks from any related Asset
Sales, financing, capital raising or other transactions, in
each case permitted under the terms of the
Financing Agreement, up to the aggregate principal amount of
the Revolving Loans.
4.2.5 All accrued interest, fees or other amounts due and payable
under the Financing Agreement, through the date of such
exchange, shall have been paid in full, in dollars.
SECTION 5
REPRESENTATIONS AND WARRANTIES
5.1 CONEXANT REPRESENTATIONS. Conexant represents and warrants to Skyworks
as follows:
5.1.1 Conexant (i) is duly organized and validly existing under the
laws of Delaware, (ii) is in good standing under such laws,
and (iii) has full power and authority to execute, deliver and
perform its obligations under, the Refinancing Documents.
5.1.2 Conexant's execution, delivery, and performance of the
Refinancing Documents have not resulted, and will not result,
in a breach or violation of any provision of (i) Conexant's
organizational documents, (ii) any statute, law, writ, order,
rule or regulation of any Governmental Authority applicable to
Conexant, (iii) any judgment, injunction, decree or
determination applicable to Conexant, or (iv) any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument by which Conexant may be bound or to which any of
the assets of Conexant are subject, in each case, other than
any breach or violation that would not adversely affect the
ability of Conexant to perform its obligations under the
Refinancing Documents.
5.1.3 Each of the Refinancing Documents (other than the Interim
Convertible Notes and the Senior Note Documentation) (i) has
been duly and validly authorized, executed and delivered by
Conexant, and (ii) is the legal, valid and binding obligation
of Conexant, enforceable against Conexant in accordance with
its terms, except that such enforceability may be limited by
bankruptcy, insolvency or other similar laws of general
applicability affecting the enforcement of creditors' rights
generally and by the court's discretion in relation to
equitable remedies.
5.1.4 No notice to, registration with, consent or approval of, or
any other action by, any relevant Governmental Authority or
other entity is or will be required for Conexant to execute,
deliver and perform its obligations under the Refinancing
Documents.
5.1.5 No commission or other remuneration has been paid or given
directly or indirectly by Conexant in connection with or for
soliciting the exchanges contemplated by Section 2 of this
Agreement. Conexant has not engaged any broker, finder or
banker (other than Credit Suisse First Boston) in connection
with the transactions contemplated by this Agreement, and
Skyworks has no liability for any amounts payable as fees or
expenses of Credit Suisse First Boston for services rendered
to Conexant in connection with such transactions.
5.2 SKYWORKS REPRESENTATIONS. Skyworks represents and warrants to Conexant
as follows:
5.2.1 Skyworks (i) is duly organized and validly existing under the
laws of Delaware, (ii) is in good standing under such laws,
and (iii) has full power and authority to execute, deliver and
perform its obligations under, the Refinancing Documents.
5.2.2 Skyworks' execution, delivery, and performance of the
Refinancing Documents have not resulted, and will not result,
in a breach or violation of any provision of (i) Skyworks'
organizational documents, (ii) any statute, law, writ, order,
rule or regulation of any Governmental Authority applicable to
Skyworks, (iii) any judgment, injunction, decree or
determination applicable to Skyworks, or (iv) any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument by which Skyworks may be bound or to which any of
the assets of Skyworks are subject, in each case, other than
any breach or violation that would not adversely affect the
ability of Skyworks to perform its obligations under the
Refinancing Documents.
5.2.3 Each of the Refinancing Documents (other than the Senior Note
Documentation) (i) has been duly and validly authorized,
executed, and delivered by Skyworks, and (ii) is the legal,
valid, and binding obligation of Skyworks, enforceable against
Skyworks in accordance with its terms, except that such
enforceability may be limited by bankruptcy, insolvency or
other similar laws of general applicability affecting the
enforcement of creditors' rights generally and by the court's
discretion in relation to equitable remedies.
5.2.4 No notice to, registration with, consent or approval of, or
any other action by, any relevant Governmental Authority or
other entity is or will be required for Skyworks to execute,
deliver and perform its obligations under the Refinancing
Documents, other than the filings contemplated by the
Registration Rights Agreement.
5.2.5 No commission or other remuneration has been paid or given
directly or indirectly by Skyworks in connection with or for
soliciting the exchanges contemplated by Section 2 of this
Agreement. Skyworks has not engaged any broker, finder or
banker (other than Credit Suisse First Boston and Xxxxxxx
Sachs & Company) in connection with the transactions
contemplated by this Agreement, and Conexant has no liability
for any amounts payable as fees or expenses of Credit Suisse
First Boston or Xxxxxxx Xxxxx & Company for services rendered
to Skyworks in connection with such transactions.
5.2.6 The Conexant Notes when issued and delivered will be validly
authorized and issued, and legal, valid and binding
obligations of Skyworks, enforceable against Skyworks in
accordance with the respective terms of the Conexant Notes,
except that such enforceability may be limited by bankruptcy,
insolvency or other similar laws of general applicability
affecting the enforcement of creditors' rights generally and
by the court's discretion in relation to equitable remedies.
5.2.7 The Junior Note Documentation and the Senior Note
Documentation, when executed and delivered will be, validly
authorized, duly executed and delivered and legal, valid and
binding obligations of Skyworks, enforceable against Skyworks
in accordance with the respective terms of the Junior Note
Documentation and the Senior Note Documentation, except that
such enforceability may be limited by bankruptcy, insolvency
or other similar laws of general applicability affecting the
enforcement of creditors' rights generally and by the court's
discretion in relation to equitable remedies.
5.2.8 The Indenture, when executed and delivered, will comply with
the requirements under the TIA.
5.2.9 The offer, sale and exchange of Interim Convertible Notes
pursuant to this Agreement is, and the offer, sale and
exchange of Senior Convertible Notes pursuant to the Senior
Note Documentation will be, exempt from the registration
requirements of the Securities Act.
5.2.10 The Interim Convertible Notes, when issued and delivered, will
be entitled to the benefits of the collateral security and
guaranties provided in the Financing Agreement.
5.2.11 Skyworks is, and after giving effect to each of the
transactions contemplated by this Agreement, the Junior Note
Documentation and the Senior Note Documentation will be,
Solvent.
5.2.12 The representations and warranties made by Skyworks in the
Junior Note Documentation are accurate and complete and are
hereby made to Conexant as if set forth verbatim in this
Agreement.
SECTION 6
MISCELLANEOUS
6.1 NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been sufficiently
given to any party hereto if personally delivered or if sent by telegram,
facsimile, telecopy or telex, or by registered or certified mail, return receipt
requested, or by recognized courier service, postage or other charges prepaid,
addressed as follows:
6.1.1 If to Skyworks:
Skyworks Solutions, Inc.
00 Xxxxxx Xxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
Chief Financial Officer
with a copy to (not effective for purposes of
notice):
Skyworks Solutions, Inc.
00 Xxxxxx Xxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: General Counsel
6.1.2 If to Conexant:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. X'Xxxxxx
Senior Vice President, General Counsel
and Secretary
with a copy to (not effective for purposes of
notice):
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
or to such other address as may be specified from time to time by Skyworks or
Conexant on notice to the other party. Such notice or communication will be
deemed to have been given as of the date so personally delivered, telegraphed,
telecopied, telexed, mailed or sent by courier.
6.2 WAIVER; AMENDMENT. None of the terms and conditions of this Agreement
may be changed, waived, modified or varied in any manner whatsoever unless in
writing duly signed by each party directly affected thereby.
6.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon each party
and its successors and assigns and shall inure to the benefit of Conexant and
its successors and assigns.
6.4 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
6.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts and by
facsimile, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
6.6 SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
6.7 JURISDICTION; CONSENT TO SERVICE OF PROCESS.
6.7.1 NEW YORK COURTS. Each party to this Agreement hereby
irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York
State court or Federal court of the United States of America
sitting in New York City, and any appellate court from any
thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any
right that Conexant may otherwise have to bring any action or
proceeding relating to this Agreement against any party or its
properties in the courts of any other jurisdiction.
6.7.2 VENUE. Each party hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively
do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out
of or relating to this Agreement in any New York State or
Federal court located in New York City. Each party hereby
irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
6.7.3 SERVICE OF PROCESS. Each party irrevocably consents to service
of process in the manner provided for notices in Section 6.1.
Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner
permitted by law.
6.8 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH, THIS AGREEMENT OR THE OTHER FINANCING DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER REFINANCING DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.8.
6.9 ENTIRE AGREEMENT. This Agreement and the other Refinancing Documents
embody the entire agreement and understanding between the parties and supersede
all prior agreements and understandings between such parties relating to the
subject matter hereof and thereof.
6.10 NO THIRD-PARTY BENEFICIARIES. This Agreement shall be binding on and
inure solely to the benefit of each party hereto and their permitted successors
and assigns and
the Indemnitees, and nothing in this Agreement, express or implied, is intended
to or shall confer upon any other person any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
6.11 TERMINATION. This Agreement shall terminate and have no further force
or effect if the closing of the issuance and sale of Junior Notes has not been
consummated on or before November 13, 2002.
6.12 EXCULPATION. There can be no assurances that Skyworks will be able to
consummate the issuance of the Junior Notes and, anything herein to the contrary
notwithstanding, Skyworks shall have no liability whatsoever in the event that
the issuance of the Junior Notes is not consummated.
6.13 EXPENSES. Each party hereto shall pay its own costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered by their duly authorized officers as of the date
first above written.
CONEXANT SYSTEMS, INC.
By: /s/ Balakrishnan X. Xxxx
----------------------------------------
Name: Balakrishnan X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
SKYWORKS SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
EXHIBIT A
DEFINITIONS
1.1 DEFINED TERMS. The following terms shall have the meanings set forth
below:
"ACQUISITION NOTES" has the meaning set forth in the Financing
Agreement.
"AGREEMENT" means this Refinancing Agreement and all Exhibits and
Schedules.
"AMENDMENT" means the First Amendment of the Financing Agreement in the
form annexed as Exhibit B.
"CLOSING DATE" means November 12, 2002 or such other date as shall be
mutually agreed by Conexant and Skyworks.
"CONEXANT NOTES" means the Interim Convertible Notes and the Senior
Convertible Notes issued by Skyworks to Conexant, individually and collectively.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"FINANCING AGREEMENT" means the Financing Agreement dated as of June
25, 2002 among Conexant, Skyworks (formerly known as Alpha Industries, Inc.) and
certain subsidiaries of Skyworks.
"INDENTURE" means the indenture for the Senior Convertible Notes, to be
agreed by Conexant and Skyworks prior to the Closing Date and annexed as Exhibit
C, appropriately completed.
"INTERIM CONVERTIBLE NOTES" means promissory notes of Skyworks,
substantially in the form annexed as Exhibit D, appropriately completed in
conformity herewith, with such changes therein as may be approved by Conexant
and Skyworks.
"JUNIOR NOTE DOCUMENTATION" means the Junior Notes and any indenture,
purchase agreement, subscription agreement, registration rights agreement,
certificate or other instrument governing, representing or setting forth the
terms and conditions of, or the authorization, issuance, offer and sales of,
Junior Notes.
"JUNIOR NOTES" means 4.75% convertible subordinated notes of Skyworks
due November 2007, individually and collectively.
"NET CASH PROCEEDS" means with respect to any creation or incurrence of
Indebtedness or issuance or sale of capital stock of Skyworks or its
subsidiaries, the cash
proceeds thereof, net of all taxes and customary fees, commissions, costs and
other expenses (including reasonable broker's fees or commissions, legal fees,
accounting fees, investment banking fees and other professional fees, and
underwriter's discounts and commissions) incurred in connection therewith.
"REFINANCING DOCUMENTS" means this Agreement, the Amendment, the
Interim Convertible Notes, the Registration Rights Agreement, and the Senior
Note Documentation, individually and collectively.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement to be agreed by Conexant and Skyworks prior to the Closing Date and
annexed as Exhibit E, appropriately completed, which shall contain substantially
the same terms and conditions as the registration rights agreement for the
Junior Notes, except that the registration thereunder shall (i) cover the Senior
Convertible Notes and the common stock of Skyworks into which any Conexant Notes
may be converted (the "REGISTRABLE SECURITIES") and (ii) be continuously
effective for the period commencing not later than 90 days after the Closing
Date and ending December 31, 2005 (subject to the limitations, black-out periods
and other suspensions set forth therein).
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"SENIOR CONVERTIBLE NOTES" means any promissory note of Skyworks issued
pursuant to the Indenture.
"SENIOR NOTE DOCUMENTATION" means the Senior Convertible Notes, the
Indenture and any purchase agreement, subscription agreement, certificate or
other instrument governing, representing or setting forth the terms and
conditions of, or the authorization, issuance, offer and sales of, the Senior
Convertible Notes, the Registration Rights Agreement, in each case, in form and
substance reasonably satisfactory to Conexant and Skyworks (it being understood
that the terms of the Senior Convertible Notes will be similar in all material
respects to the terms of the Interim Convertible Notes, with such changes as may
be appropriate under the circumstances, including those relating to the Trustee,
the Indenture, and the benefits of the Registration Rights Agreement).
"TIA" means the Trust Indenture Act of 1939, as amended.
"TRUSTEE" means the Trustee under the Indenture.
1.2 RULES OF CONSTRUCTION. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any person shall be construed to
include such person's successors and assigns (subject to any restrictions on
such assignments set forth herein), (c) the words "herein", "hereof" and
"hereunder", and words of similar import shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, and (f) any reference to any law, rule or regulation
shall be construed to mean that law, rule or regulation as amended and in effect
from time to time. Each covenant in this Agreement shall be given independent
effect, and the fact that any act or omission may be permitted by one covenant
and prohibited or restricted by any other covenant (whether or not dealing with
the same or similar events) shall not be construed as creating any ambiguity,
conflict or other basis to consider any matter other than the express terms
hereof in determining the meaning or construction of such covenants and the
enforcement thereof in accordance with their respective terms.
1.3 ACCOUNTING TERMS; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time.
1.4 HEADINGS DESCRIPTIVE. The headings of the several Sections are inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement.
