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Exhibit 1.1
20,000,000 Shares
XXXXXXXXX SEMICONDUCTOR INTERNATIONAL, INC.
Class A Common Stock
UNDERWRITING AGREEMENT
July -, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX BARNEY INC.
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
DEUTSCHE BANK SECURITIES, INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Xxxxxxxxx Semiconductor International, Inc.,
a Delaware corporation (the "COMPANY"), proposes to issue and sell to the
Underwriters (as defined) 20,000,000 shares (the "FIRM SECURITIES") of its Class
A Common Stock (the "COMMON STOCK") and National Semiconductor Corporation (the
"SELLING Stockholder") proposes to issue and sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than 3,000,000 shares (the
"OPTIONAL SECURITIES") of Common Stock as set forth below. The Firm Securities
and the Optional Securities are herein collectively called the "OFFERED
SECURITIES". The Company and the Selling Stockholder hereby agree with the
several Underwriters named in Schedule A hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholder. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-78557) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission (the "COMMISSION") and either
(i) has been declared effective under the Securities Act of 1933 (the
"ACT") and is not proposed to be amended or (ii) is proposed to be
amended by amendment or post-effective amendment. If such registration
statement (the "INITIAL REGISTRATION STATEMENT") has been declared
effective, either (i) an additional registration statement (the
"ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities
may have been filed with the Commission pursuant to Rule 462(b) ("RULE
462(B)") under the Act and, if so filed, has become effective upon
filing pursuant to such Rule and the Offered Securities all have been
duly registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration statement or
(ii) such an additional registration statement is proposed to be
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filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("RULE 462(C)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"EFFECTIVE TIME" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (i) if the Company has advised
the Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (ii) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised the Representatives that it proposes to file one,
"EFFECTIVE TIME" with respect to such additional registration statement
means the date and time as of which such registration statement is
filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form
on which it is filed and including all information (if any) deemed to
be a part of the initial registration statement as of its Effective
Time pursuant to Rule 430A(b) ("RULE 430A(B)") under the Act, is
hereinafter referred to as the "INITIAL REGISTRATION STATEMENT". The
additional registration statement, as amended at its Effective Time,
including the contents of the initial registration statement
incorporated by reference therein and including all information (if
any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration Statement are herein referred
to collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT". The form of prospectus relating to the
Offered Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("RULE 424(B)") under the Act or (if no
such filing is required) as included in a Registration Statement, is
hereinafter referred to as the "PROSPECTUS". No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (i)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission promulgated thereunder ("RULES AND REGULATIONS") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the
requirements of
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the Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective Date
of the Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all material respects to
the requirements of the Act and the Rules and Regulations, neither of
such documents will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse
effect on the business, assets, operations, properties, financial
condition, liabilities or prospects of the Company and its subsidiaries
taken as a whole, or would not materially and adversely affect the
ability of the Company to perform its obligations under this Agreement
(a "MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the
extent that the failure to so qualify or be in good standing would not
have a Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects, other than as described in the Prospectus.
(v) The Offered Securities and all other outstanding shares
of capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the
Offered Securities have been delivered and paid for in accordance with
this Agreement on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and nonassessable
and will conform in all material respects to the
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description thereof contained in the Prospectus; and the stockholders
of the Company have no preemptive rights with respect to the Offered
Securities, other than as set forth in the Securities Purchase and
Holders Agreement, as amended, dated March 11, 1997, among the Company
and the stockholders of the Company.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(vii) There are no contracts, agreements or understandings
between the Company or any subsidiary of the Company and any person
that would give rise to a valid claim against the Company or any
subsidiary of the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment, other than to the
Underwriters, in connection with this offering.
(viii) There are no contracts, agreements or understandings
between the Company or any subsidiary of the Company and any person
granting such person the right to require the Company or any subsidiary
of the Company to file a registration statement under the Act with
respect to any securities of the Company or any subsidiary of the
Company owned or to be owned by such person or to require the Company
or any subsidiary of the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act, other than the
Registration Rights Agreement dated March 30, 1999 among the Company,
Xxxxxxxxx Semiconductor Corporation, Xxxxxxxxx Semiconductor
Corporation of California, Credit Suisse First Boston Corporation,
Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Xxxxx Barney Inc. and Fleet
Securities, Inc. and the Registration Rights Agreement dated March 11,
1997 among the Company and the stockholders of the Company.
(ix) The Offered Securities have been approved for listing on
the New York Stock Exchange subject to notice of issuance.
(x) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
in connection with the issuance and sale of the Offered Securities by
the Company, except such as have been obtained and made under the Act
and the Rules and Regulations of the Commission thereunder and such as
may be required under state securities or blue sky laws in connection
with the offer and sale of the Offered Securities by the Company.
(xi) The execution, delivery and performance of this
Agreement, and the issuance and sale of the Offered Securities by the
Company, will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any domestic or, to
the knowledge of the Company, foreign, statute, rule, regulation or
order of any governmental agency or body or any court, having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject or the charter or by-laws of
the Company or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them and necessary to
conduct the business now operated by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the
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Company and its subsidiaries hold any leased real or personal property
necessary to the conduct of the business now operated by them under
valid and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business presently operated
and conducted by them, subject to such qualifications as may be set
forth in the Prospectus or except where the failure to so possess would
not, singularly or in the aggregate, have a Material Adverse Effect;
and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xiv) No material labor dispute with the employees of the
Company or any subsidiary of the Company exists or, to the knowledge of
the Company or any subsidiary of the Company, is imminent that might
have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess, have the
right to use by license or otherwise, or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them and have not
received any notice of infringement of or conflict with asserted rights
of others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and neither the Company nor
any subsidiary of the Company is aware of any pending investigation
which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are, to the
Company's or any subsidiary's knowledge, threatened.
(xviii) The financial statements of the Company and Xxxxxxxxx
Semiconductor Corporation included in each Registration Statement and
the Prospectus present fairly the financial position of the Company and
Xxxxxxxxx Semiconductor Corporation on the basis stated therein as of
the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; the schedules included in
each Registration
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Statement present fairly the information required to be stated therein;
and the assumptions used in preparing the pro forma financial
statements, and the related notes thereto, included in each
Registration Statement and the Prospectus provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(xix) To the knowledge of the Company, the financial
statements of the Power Device Business of Samsung Electronics Co.,
Ltd. ("FAIRCHILD KOREA") included in each Registration Statement and
the Prospectus present fairly the financial position of Fairchild Korea
as of the dates shown and its results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; the schedules included in
each Registration Statement present fairly the information required to
be stated therein; and the assumptions used in preparing the pro forma
financial statements, and the related notes thereto, included in each
Registration Statement and the Prospectus provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(xx) Except as disclosed in the Prospectus, (i) there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole, since the date of the most
recent audited financial statements of the Company and its subsidiaries
included in the Prospectus and (ii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or any
subsidiary on any class of its capital stock since the date of the most
recent audited financial statements of the Company and the subsidiaries
included in the Prospectus.
(xxi) Neither the Company nor any subsidiary is an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
United States Investment Company Act of 1940 (the "INVESTMENT COMPANY
ACT"); and each of the Company and its subsidiaries is not and, after
giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the Prospectus,
will not be an "investment company" as defined in the Investment
Company Act.
(xxii) Neither the Company nor its subsidiaries has entered
and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(xxiii) None of the Company and its subsidiaries or, to the
best knowledge of the Company or any subsidiary, any director, officer,
agent, employee or other person associated with or acting on behalf of
the Company or any subsidiary has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or (iv) made
any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
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(b) The Selling Stockholder represents and warrants to, and agrees
with, the several Underwriters that:
(i) The Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the Offered
Securities to be delivered by the Selling Stockholder on such Closing Date and
full right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities to be delivered by the
Selling Stockholder on such Closing Date hereunder; and upon the delivery of and
payment for the Offered Securities on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Offered Securities
to be delivered by the Selling Stockholder on such Closing Date.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act and
the Rules and Regulations and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the Effective
Date of the Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and did not include, or
will not include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) on the date of
this Agreement, the Initial Registration Statement and, if the Effective Time of
the Additional Registration Statement is prior to the execution and delivery of
this Agreement, the Additional Registration Statement each conforms, and at the
time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration Statement in
which the Prospectus is included, each Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, neither of such documents
will include any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. The two preceding sentences apply only to the extent
that any statements in or omissions from a Registration Statement or the
Prospectus are based on written information furnished to the Company by the
Selling Stockholder specifically for use therein.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Selling Stockholder and any
person that would give rise to a valid claim against the Selling Stockholder or
any Underwriter for a brokerage commission, finder's fee or other like payment
in connection with this offering.
(iv) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in connection
with the issuance and sale of the Offered Securities by the Selling Stockholder,
except such as have been obtained and made under the Act and the Rules and
Regulations of the Commission thereunder and such as may be required under state
securities or blue sky laws in connection with the offer and sale of the Offered
Securities by the Selling Stockholder.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions set forth herein, the
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Company agrees to sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Company, at a purchase price of
$- per share, the respective numbers of shares of Firm Securities set forth
opposite the names of the several Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official wire transfer to an account at a bank
acceptable to Credit Suisse First Boston Corporation ("CSFBC") at the office of
Cravath, Swaine & Xxxxx, at 9:00 A.M., New York time, on -, 1999, or at such
other time not later than seven full business days thereafter as CSFBC and the
Company determine, such time being herein referred to as the "FIRST CLOSING
DATE". For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), the First Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for payment
of funds and delivery of securities for all the Offered Securities sold pursuant
to the offering. The certificates for the Firm Securities so to be delivered
will be in definitive form, in such denominations and registered in such names
as CSFBC requests and will be made available for checking and packaging at the
above office at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Selling Stockholder from time to time not more than 30 days subsequent to
the date of the Prospectus, the Underwriters may purchase all or less than all
of the Optional Securities at the purchase price per share of Common Stock to be
paid for the Firm Securities. The Selling Stockholder agrees to sell to the
Underwriters the number of Optional Securities specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter's name in Schedule A hereto bears to the total number
of Firm Securities (subject to adjustment by CSFBC to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Company and the Selling
Stockholder.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company and the Selling
Stockholder will deliver the Optional Securities being purchased on each
Optional Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price therefor in Federal (same
day) funds by official wire transfer to an account at a bank acceptable to
CSFBC, at the above office. The certificates for the Optional Securities being
purchased on each Optional Closing Date will be in definitive form, in such
denominations and registered in such names as CSFBC requests upon reasonable
notice prior to such Optional Closing Date and will be made available for
checking and packaging at the above office at a reasonable time in advance of
such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholder. The
Company and, as specifically set forth below, the Selling Stockholder, each with
respect to itself, agree with the several Underwriters that:
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(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier
of (A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement. The Company will advise
CSFBC promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make
such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its reasonable best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (three of which will be signed and will
include all exhibits), each related preliminary
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prospectus, and, so long as a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, the Prospectus and all amendments
and supplements to such documents, in each case in such quantities as
CSFBC reasonably requests. The Prospectus shall be so furnished on or
prior to 3:00 P.M., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other documents shall
be so furnished as soon as available. The Company will pay the expenses
of printing and distributing to the Underwriters all such documents.
(f) The Company, in cooperation with the Underwriters and
their counsel, will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution; provided that the Company will not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(g) During the period of three years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and
the Company will furnish to the Representatives and, upon request, to
each of the other Underwriters, (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed
with the Commission under the Exchange Act or mailed to stockholders,
and (ii) from time to time, such other information concerning the
Company as CSFBC may reasonably request.
(h) The Company and the Selling Stockholder will pay all
expenses incident to the performance of the obligations of the Company
and the Selling Stockholder, as the case may be, under this Agreement,
for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of
the Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and the printing of memoranda relating thereto, for
the filing fee incident to, and the reasonable fees and disbursements
of counsel to the Underwriters in connection with, the review by the
National Association of Securities Dealers, Inc. of the Offered
Securities, for any travel expenses of the Company's officers and
employees, for all fees and expenses incident to listing the Offered
Securities on The New York Stock Exchange and any other expenses of the
Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities and for expenses
incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Underwriters.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Underwriters of the completion of
the distribution of the Offered Securities, neither the Company nor any
of its affiliates has or will, either alone or with one or more other
persons, bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest, any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither it
nor any of its affiliates will make bids or purchases for the purpose
of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
(j) For a period of 180 days after the date of the initial
public offering of the Offered Securities by the Underwriters, the
Company and the Selling Stockholder will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, or file
with the Commission a registration statement under the Act relating to,
any additional shares of its shares of Common Stock or securities
convertible into or exchangeable or exercisable for any shares of its
shares of Common Stock, or publicly disclose the intention to make any
such offer, sale, pledge, disposition
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or filing, without the prior written consent of CSFBC. Notwithstanding
the foregoing sentence, during such 180 day period the Company (1) may
grant stock options pursuant to the Company's existing stock option
plans, and may issue shares of Common Stock pursuant to the exercise of
such options, (2) may file registration statements on Form S-8 and
amendments thereto in connection with those stock option or employee
stock purchase plans of the Company in existence on the Closing Date,
(3) may file a registration statement in connection with the resale by
certain management employees (such employees to be identified in any
such registration statement) of the Company who are beneficiaries of
the Fairchild-NSC Deferred Compensation Plan Trust (the "TRUST") of
Common Stock issued to X.X. Xxxxxx, as trustee of the Trust, and
subsequently distributed to such beneficiaries as a result of the
conversion of shares of the Company's 12% Series A Cumulative
Compounding Preferred Stock into shares of Common Stock, (4) may issue
shares of Common Stock upon the exercise of any option or warrant or
the conversion or exchange of a security issued by it and outstanding
on the date hereof, (5) may issue shares or options in acquisitions in
which the acquiror or acquirors of such shares agree(s) to such
restrictions, (6) may issue shares of Common Stock in connection with
the exchange or conversion of the Company's 12% Series A Cumulative
Compounding Preferred Stock and (7) may issue shares of Common Stock to
participating employees in connection with the termination of the
Company's Employee Stock Purchase Savings Plan.
(k) The Company will apply the net proceeds of the offering
and the sale of the Offered Securities in the manner set forth in the
Prospectus under the caption "Use of Proceeds."
(l) The Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group on or prior to the First Closing
Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(m) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Selling Stockholder will promptly notify CSFBC and the Company
of such event.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters (i) to purchase and pay for the Firm Securities on
the First Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Company herein in all material respects,
except to the extent such representations and warranties are already qualified
by materiality in Section 2 herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the additional conditions precedent
listed in this Section 6 and (ii) to purchase and pay for the Optional
Securities on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholder herein in all material respects, except to the extent such
representations and warranties are already qualified by materiality in Section 2
herein, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholder of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective
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Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing
of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of KPMG
LLP, independent auditors for the Company and its subsidiaries (except
for Fairchild Korea), substantially in the form of Exhibit A hereto and
acceptable to the Underwriters.
(b) The Underwriters shall have received a letter, dated the
date of delivery thereof, of Samil Accounting Corporation, independent
auditors for Fairchild Korea, substantially in the form of Exhibit B
hereto and acceptable to the Underwriters.
(c) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Selling Stockholder, the Company
or the Representatives, shall be threatened by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the reasonable
judgment of CSFBC, be likely to prejudice materially the success of the
public offering or the sale and payment for of the Offered Securities
whether in the primary market or in respect of dealings in the
secondary market, or (ii) any change, or any development or event
involving a prospective change, in the financial condition, business,
properties or results of operations of the Company and its subsidiaries
taken as a whole which, in the reasonable judgment of CSFBC, is
material and adverse and makes it impractical or inadvisable to proceed
with the completion of the public offering or the sale of and payment
for the Offered Securities; (iii) any downgrading in the rating of any
debt securities of the Company or its subsidiaries by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that
any such organization has under surveillance or review its rating of
any debt securities of the Company or its subsidiaries (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iv) any
suspension or limitation of trading in securities generally on the New
York Stock Exchange or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Company or its subsidiaries on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by Federal or New York
authorities; or (vi) any outbreak or escalation of major hostilities in
which the United States or Korea is involved, any declaration of war by
Congress or the Korean government or any other substantial national or
international calamity or emergency if, in the reasonable judgment of a
majority in interest of the Underwriters, including CSFBC, the effect
of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with the completion of
the public offering or sale of and payment for the Offered Securities.
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(e) The Representatives shall have received an opinion, dated
the Closing Date, of Xxxxxx X. Xxxxx, General Counsel of the Company,
that:
(i) each of the subsidiaries of the Company (except
Fairchild Korea) is a corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate
power and corporate authority to own its properties and
conduct its businesses as described in the Prospectus; and is
duly qualified to do business as a foreign corporation and is
in good standing in the jurisdictions listed in such opinion;
(ii) except as disclosed in the Prospectus, insofar
as is known to such counsel, there are no actions, suits or
proceedings threatened or pending against the subsidiaries of
the Company or any of their respective properties that if
determined adversely to any subsidiary would be reasonably
likely to have a Material Adverse Effect; and
(iii) such counsel does not know of any legal or
governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in a Registration Statement
or the Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required.
(f) The Representatives shall have received an opinion, dated
the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company,
that:
(i) the Company is a corporation in good standing
under the laws of the State of Delaware, with corporate power
and corporate authority to own its properties and conduct its
businesses as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation and is
in good standing in the jurisdictions listed in such opinion;
(ii) each of Xxxxxxxxx Semiconductor Corporation and
Xxxxxxxxx Semiconductor Corporation of California is a
corporation in good standing under the laws of the
jurisdiction in which it is incorporated;
(iii) insofar as is known to such counsel, to the
extent the Prospectus contains summaries of statutes, legal
proceedings or documents (or provisions thereof) referred to
therein, such statements are true and correct in all material
respects;
(iv) the Offered Securities and all other outstanding
shares of capital stock of the Company have been duly
authorized; all outstanding shares of capital stock of the
Company are, and, when the Offered Securities have been
delivered and paid for in accordance with this Agreement on
each Closing Date, such Offered Securities will have been,
validly issued, fully paid and nonassessable and will conform
in all material respects to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the shares of Common Stock,
other than as set forth in the Securities Purchase and Holders
Agreement, as amended, dated March 11, 1997, among the Company
and the stockholders of the Company;
(v) no consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the performance by the Company of its
obligations under this Agreement or in connection with the
issuance and sale of the Offered Securities by the Company
except such as have been obtained or
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made or as may be required under the Securities Act or the
Exchange Act and the rules and regulations of the Commission
thereunder and such as may be required by state securities or
blue sky laws in connection with the offer and sale of the
Offered Securities, and except for such consents, approvals,
authorizations, orders or filings the failure of which to
obtain or make would not result in a Material Adverse Effect;
(vi) the execution, delivery and performance of this
Agreement by the Company and the issuance and sale of the
Offered Securities by the Company will not result in a breach
or violation of any of the terms and provisions of, or
constitute a default under, any material New York or Federal
statute, rule or regulation or the Delaware General
Corporation Law applicable to the Company or any order of any
governmental agency or body or any court having jurisdiction
over the Company, Xxxxxxxxx Semiconductor Corporation or
Xxxxxxxxx Semiconductor Corporation of California or any of
their properties and which order is known to such counsel, or
any agreement or instrument listed in such opinion, or the
charter or by-laws of the Company, Xxxxxxxxx Semiconductor
Corporation or Xxxxxxxxx Semiconductor Corporation of
California, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as
contemplated by this Agreement;
(vii) except as disclosed in the Prospectus, insofar
as is known to such counsel, there are no actions, suits or
proceedings threatened or pending against the Company or any
of its properties that if determined adversely to the Company
would be reasonably likely to have a Material Adverse Effect;
(viii) the Company is not an open-end investment
company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section
8 of the Investment Company Act, and it is not a closed-end
investment company required to be registered, but not
registered, thereunder; and the Company is not, and after
giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment
company" as defined in the Investment Company Act;
(ix) the Initial Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any)
was filed and became effective under the Act as of the date
and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the knowledge of such
counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are
pending or threatened under the Act, and each Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations (except
as to the financial statements, supporting
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schedules, footnotes and other financial and statistical
information included therein, as to which such counsel
expresses no opinion); and
(x) this Agreement has been duly authorized, executed
and delivered by the Company.
In addition, such counsel shall state in a separate letter
that they have participated in conferences with officers and other
representatives of the Company and representatives of the Underwriters
and its counsel during which the contents of the Registration Statement
and related matters were discussed and reviewed and, although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement, on the basis of the information that was
developed in the course of the performance of the services referred to
above, considered in the light of such counsel's understanding of the
applicable law, that nothing came to their attention that caused them
to believe that any part of a Registration Statement or any amendment
thereto made prior to the Closing Date (other than the financial
statements and schedules and the other financial and statistical data
included therein, as to which such counsel expresses no opinion), as of
its effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or that the Prospectus or any amendment or supplement
thereto, made prior to the Closing Date (other than the financial
statements and schedules and the other financial and statistical data
included therein, as to which such counsel expresses no opinion), as of
the date of the Prospectus or any amendment or Supplement thereto or as
of such Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New York, the General Corporation Law of the State of Delaware
or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel
who are satisfactory to counsel for the Underwriters (which opinion
will be attached thereto) and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the
Company and public officials. Such opinion may be limited to the
General Corporation Law of the State of Delaware and the laws of the
State of New York, and the Federal laws of the United States.
(g) The Representatives shall have received an opinion, dated
the Closing Date, from Xxx & Xxxxx, special counsel for the Company,
that:
(i) Xxxxxxxxx Korea is a limited liability company
(chusik hoesa) duly organized and validly existing under the
laws of the Republic of Korea; and Xxxxxxxxx Korea has the
corporate power to own its property and conduct its business
in accordance with its Articles of Incorporation.
(ii) Notwithstanding that certain other licenses and
permits may be required for Xxxxxxxxx Korea to conduct its
business, no separate business license is necessary under the
Korean laws in order for Xxxxxxxxx Korea to engage in
developing, manufacturing and selling power device products.
(h) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxx X. Xxxxx, III, General Counsel for the
Selling Stockholder, to the effect that:
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(i) The Selling Stockholder had valid and
unencumbered title to the Offered Securities delivered by the
Selling Stockholder on the Closing Date and had full right,
power and authority to sell, assign, transfer and deliver the
Offered Securities delivered by the Selling Stockholder on
such Closing Date hereunder; and the several Underwriters have
acquired valid and unencumbered title to the Offered
Securities purchased by them from the Selling Stockholder on
such Closing Date hereunder;
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by the Selling Stockholder
for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered
Securities sold by the Selling Stockholder, except such as
have been obtained and made under the Act and may be required
under state securities laws;
(iii) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute default under,
any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Selling Stockholder or any of its properties or any agreement
or instrument to which the Selling Stockholder is a party or
by which the Selling Stockholder is bound or to which any of
the properties of the Selling Stockholder is subject, or the
charter or by-laws of the Selling Stockholder; and
(iv) This Agreement has been duly authorized,
executed and delivered by the Selling Stockholder.
(i) The Representatives shall have received from Cravath,
Swaine & Xxxxx, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectus and other
related matters as the Representatives may require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(j) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable investigation
and in their capacity as such officers, on behalf of the Company, shall
state that: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
threatened by the Commission; the Additional Registration Statement (if
any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time the Prospectus was printed and distributed to
any Underwriter; and, subsequent to the dates of the most recent
financial statements of the Company in the Prospectus, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
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(k) The Representatives shall have received a letter, dated
such Closing Date, of KPMG LLP which meets the requirements of
subsection (a) of this Section 6, except that the specified date
referred to in such subsection will be a date not more than three days
prior to such Closing Date for the purposes of this subsection (k).
(l) The Underwriters shall have received a letter, dated the
Closing Date, of Samil Accounting Corporation which meets the
requirements of subsection (b) of this Section 6, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to the Closing Date for the purposes of
this subsection (l).
(m) The Company shall have received a waiver from each party
thereto (other than the Company) with respect to registration rights
granted to such party under the Registration Rights Agreement, dated
March 11, 1997, among the Company, Sterling Holding Company, LLC, the
Selling Stockholder and the management investors listed therein.
(n) The "lock-up" agreements between the Representatives and
the Company, the Selling Stockholder, X.X. Xxxxxx & Co., Xxxx X. Xxxx,
Xxxxxx X. Xxxxxx, Sterling Holding Company, LLC, Xxxxxx X. Xxxxx, Xxxxx
X. Xxxxx, W. Xxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx X'Xxxxxxx, Xxxxx
Xxxxxxxx, Xxxxxx Xxxxxxx, X.X. Xxx, X.X. Xxxx, Xxxxxxx Xxxxxxx, Xxxx
Xxx, X.X. Xxxxx, Xxxx Xxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxx,
Xxxxxxx Xxxxx, and certain persons affiliated with Citicorp Venture
Capital Ltd., delivered to you on or before the date hereof, shall be
in full force and effect on the Closing Date.
The Selling Stockholder and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (c) below; and provided further, however, that the foregoing
indemnity with respect to any preliminary Prospectus shall not inure to the
benefit of the Underwriter from whom the person asserting any such losses,
claims, damages, liabilities or actions in respect thereof purchased Offered
Securities to the extent that such losses, claims, damages, liabilities or
actions in respect thereof of such Underwriter
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result from a fact that such Underwriter sold Offered Securities to a person in
an initial resale to whom there was not sent or given, at or prior to the
written confirmation of the sale of such Offered Securities, a copy of the
Prospectus (as amended or supplemented), if the Company had previously furnished
a copy of such amendments or supplements to such Underwriter, and the losses,
claims, damages, liabilities or actions in respect thereof of such Underwriter
result from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus, which was corrected in the Prospectus.
(b) The Selling Stockholder will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person who controls
such Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the Selling
Stockholder specifically for use therein and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, and the
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or the Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company and the Selling Stockholder in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each
Underwriter: the paragraph on the cover page concerning the terms of the
Offering by the Underwriters, the concession and reallowance figures appearing
in the [fourth] paragraph under the caption "Underwriting" and the
over-allotment and stabilization information contained in the [eleventh]
paragraph under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this Section
or Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a), (b) or (c) above or Section 9, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a), (b) or (c) above or
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
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assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section or Section 9, as the case may be, for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholder on the one hand and the Underwriters on the
other from the offering of the shares of Common Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholder on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholder bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholder or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the shares of Common
Stock underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder under
this Section or Section 9 shall be in addition to any liability which the
Company and the Selling Stockholder may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter or the QIU (as hereinafter defined) within the meaning of the Act;
and the obligations of the Underwriters under this Section shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each
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officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and, with respect to any Optional
Closing Date, to the Selling Stockholder for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC, the
Company and, in the case of any Optional Securities, the Selling Stockholder for
the purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter, the Company or, in the case of any
Optional Securities, the Selling Stockholder, except as provided in Section 10
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Qualified Independent Underwriter. The Company hereby confirms that
at its request CSFBC has without compensation acted as "qualified independent
underwriter" (in such capacity, the "QIU") within the meaning of Rule 2720 of
the Conduct Rules of the National Association of Securities Dealers, Inc. in
connection with the offering of the Offered Securities. The Company and the
Selling Stockholder will severally and not jointly indemnify and hold harmless
the QIU against any losses, claims, damages or liabilities, joint or several, to
which the QIU may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon the QIU's acting (or alleged failing to act) as such
"qualified independent underwriter" and will reimburse the QIU for any legal or
other expenses reasonably incurred by the QIU in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholder and of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholder shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company, the Selling Stockholder
and the Underwriters pursuant to Section 7 and the obligations of the Company
and the Selling Stockholder pursuant to Section 9 shall remain in effect, and if
any Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii),
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(iv), (v) or (vi) of Section 6(d), the Company and the Selling Stockholder will
reimburse the Underwriters for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) reasonably incurred by them in connection
with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Xxxxxxxxx Semiconductor
International, Inc., 000 Xxxxxxx Xxxxxx, Mail Stop 00-00, Xxxxx Xxxxxxxx, XX,
00000, Attention: Xxxxxx X. Xxxxx, Esq. or, if sent to the Selling Stockholder,
will be mailed, delivered or telegraphed and confirmed to it at National
Semiconductor Corporation, 0000 Xxxxx Xxxx, Xxxx Xxxx 00-000, Xxxxxxxxx, XX
00000, Attention: Xxxx X. Xxxxx, III, Esq.; provided, however, that any notice
to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
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15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and the Selling Stockholder hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Stockholder and the several Underwriters in accordance with
its terms.
Very truly yours,
XXXXXXXXX SEMICONDUCTOR INTERNATIONAL, INC.,
By
Name:
Title:
NATIONAL SEMICONDUCTOR CORPORATION,
By
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX BARNEY INC.
BANCBOSTON XXXXXXXXX XXXXXXXX, INC.
DEUTSCHE BANK SECURITIES, INC.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION,
By
Name:
Title:
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SCHEDULE A
UNDERWRITER NUMBER OF
FIRM SECURITIES
Credit Suisse First Boston Corporation......................
Xxxxxxx Xxxxx Barney Inc. ..................................
BancBoston Xxxxxxxxx Xxxxxxxx, Inc..........................
Deutsche Bank Securities, Inc...............................
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Total................................................... 20,000,000
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