Exhibit 10-j-9
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
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.
3
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
4
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
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.
6
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 Xxxxx &
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
Sachs & 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.
7
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):
8
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
9
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
10
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.
(remainder of this page intentionally left blank)
11
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
12
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
13
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
14
"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.
15
