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Exhibit 10.37
EXECUTION COPY
$300,000,000
XXXXXXXXX SEMICONDUCTOR CORPORATION
10-3/8% SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2007
PURCHASE AGREEMENT
March 30, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
FLEET SECURITIES, INC.
Ladies and Gentlemen:
1. INTRODUCTORY. Xxxxxxxxx Semiconductor Corporation, a Delaware
corporation ("XXXXXXXXX" or the "ISSUER"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several initial purchasers
named in Schedule A hereto (the "INITIAL PURCHASERS") $300,000,000 principal
amount of its 10-3/8% Senior Subordinated Notes Due October 1, 2007 (the
"OFFERED SECURITIES"). The Offered Securities will be unconditionally guaranteed
(the "GUARANTEES") on a senior subordinated basis by FSC Semiconductor
Corporation, a Delaware corporation ("FSC SEMICONDUCTOR"), and each existing and
subsequently organized domestic subsidiary of the Issuer who become guarantors
under the Credit Agreement (as defined) (together with FSC Semiconductor, the
"GUARANTORS"). The Offered Securities are to be issued under an indenture to be
dated April 1999 (the "INDENTURE"), among the Issuer, the Guarantors and United
States Trust Company of New York, as Trustee (the "TRUSTEE").
The Offered Securities are being issued and sold in connection with (i)
the consummation of the acquisition contemplated by the Business Transfer
Agreement, dated December 20, 1998 (the "BUSINESS TRANSFER AGREEMENT") (and
related product supply, foundry services and other ancillary agreements),
between the Issuer and Samsung Electronics Co., Ltd. ("SAMSUNG"), pursuant to
which the Issuer has agreed to acquire (the "ACQUISITION") Samsung's Power
Device Business (the "PD BUSINESS") and (ii) the refinancing of certain of the
Issuer's existing bank indebtedness. To consummate the Acquisition and the
refinancing, (i) the Issuer will issue the Offered Securities, (ii) the Issuer
will enter into a credit agreement to be dated as of April 13, 1999 (and the
related guarantees and security documents) (collectively, the "CREDIT
AGREEMENT"), among the Issuer, the Guarantors signatory thereto, Credit Suisse
First Boston, New York branch, as administrative agent, and the Lenders named
therein and (iii) Citicorp Mezzanine Partners, L.P. (the "Mezzanine Fund") will
contribute $50.0 million in cash to FSC Semiconductor in exchange for a
promissory note and a warrant to purchase common stock of FSC Semiconductor, and
FSC Semiconductor will contribute such $50.0 million to the Issuer as a capital
contribution (together with the Acquisition and the execution of the Credit
Agreement, the "TRANSACTIONS").
The Offered Securities will be offered and sold to the Initial
Purchasers without being registered under the Securities Act of 1933 (the
"SECURITIES ACT"), in reliance upon an exemption therefrom. Prior to the Closing
Date (as defined herein), the Issuer will deliver to the Initial Purchasers a
Preliminary Offering Circular (as defined herein) setting forth the information
concerning the Issuer and the Offered Securities. Any references herein to the
Offering Circular (as defined herein) shall be deemed to include all amendments
and supplements thereto, unless otherwise noted. The Issuer hereby confirms that
it has authorized the use of the Offering Document (as defined herein) in
connection with the offering and resale of the Offered Securities by the Initial
Purchasers in accordance with Section 2 hereof.
Holders of the Offered Securities (including the Initial Purchasers and
their direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement dated the date hereof, among the Issuer, the
Guarantors and the Initial Purchasers (the "REGISTRATION RIGHTS AGREEMENT"),
pursuant to which the Issuer will agree to file with the Securities and Exchange
Commission (the "COMMISSION") (i) a registration statement under the Securities
Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") registering an issue of senior
subordinated notes of the Issuer (the "EXCHANGE NOTES"), which are identical in
all material respects to the Offered Securities (except that the Exchange Notes
will not contain terms with respect to transfer restrictions and interest rate
increase) and (ii) under certain circumstances, a shelf registration statement
pursuant to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT").
This Agreement, the Registration Rights Agreement and the Indenture are
referred to herein collectively as the "OPERATIVE DOCUMENTS." The agreements
relating to the Transactions are referred to herein collectively as the
"TRANSACTION AGREEMENTS."
As used in this Agreement, references to "SUBSIDIARY" and
"SUBSIDIARIES" mean each subsidiary and all subsidiaries, respectively, of the
Issuer prior to giving effect to the Acquisition.
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Document.
The Issuer and the Guarantors hereby agree with the Initial Purchasers
as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE GUARANTORS. The
Issuer and the Guarantors jointly and severally represent and warrant to, and
agree with, the several Initial Purchasers as set forth below, it being
understood that the representations and warranties relating to the PD Business
are qualified by the knowledge of the Issuer and the Guarantors:
(a) A confidential preliminary offering circular dated March
15, 1999 (the "PRELIMINARY OFFERING CIRCULAR") and a confidential
offering circular dated March 31, 1999 (the "OFFERING CIRCULAR"),
relating to the Offered Securities have been prepared by the Issuer.
Such Preliminary Offering Circular and Offering Circular, as
supplemented as of the date of this Agreement are hereinafter
collectively referred to as the "OFFERING DOCUMENT." As of its
respective dates, the Offering Document does not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Issuer by any
Initial Purchaser through Credit Suisse First Boston Corporation
("CSFBC") specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section
7(b) hereof.
(b) Each of the Issuer and FSC Semiconductor 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 Offering Document; and each of the Issuer and FSC
Semiconductor 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 Issuer, FSC Semiconductor and the
Subsidiaries taken as a whole, or would not materially and adversely
affect the ability of each of the Issuer and the Guarantors to perform
their
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respective obligations under the Operative Documents and the
Transaction Documents (a "MATERIAL ADVERSE EFFECT").
(c) Each Subsidiary 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 Offering Document; and each Subsidiary 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 has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of
each Subsidiary owned by the Issuer, directly or through Subsidiaries,
is owned free from liens, encumbrances and defects, other than as
described in the Offering Document.
(d) The Indenture has been duly authorized by the Issuer and
each Guarantor; the Guarantees have been duly authorized by each
Guarantor; the Offered Securities have been duly authorized by the
Issuer; and when the Offered Securities are delivered by the Issuer and
authenticated by the Trustee and paid for pursuant to this Agreement on
the Closing Date (as defined below), the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform in all
material respects to the description thereof contained in the Offering
Document and the Indenture and such Offered Securities will constitute
valid and legally binding obligations of the Issuer and each Guarantor,
enforceable in accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws,
now or hereinafter in effect, relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(e) This Agreement has been duly authorized, executed and
delivered by the Issuer and each Guarantor.
(f) The Registration Rights Agreement has been duly authorized
by the Issuer and each Guarantor and will conform in all material
respects to the description thereof in the Offering Document and, when
the Registration Rights Agreement has been duly executed and delivered
by the Initial Purchasers, will constitute a valid and binding
obligation of the Issuer and each Guarantor, enforceable against the
Issuer and each Guarantor in accordance with its terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws, now or hereinafter in effect, relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law),
and except that any rights to indemnity and contribution may be limited
by Federal and state securities laws and public policy considerations.
(g) There are no contracts, agreements or understandings
between the Issuer or any Guarantor and any person that would give rise
to a valid claim against the Issuer, any Guarantor or any Initial
Purchaser for a brokerage commission, finder's fee or other like
payment, other than to the Initial Purchasers, in connection with any
transactions contemplated by this Agreement.
(h) Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 4 of this
Agreement, 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
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Issuer or the Guarantors of their obligations under the Operative
Documents or in connection with the issuance and sale of the Offered
Securities by the Issuer, except as may be required under the
Securities Act and the Rules and Regulations of the Commission
thereunder with respect to the Registration Rights Agreement and the
transactions contemplated 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.
(i) The execution, delivery and performance of the Operative
Documents and the Transaction Agreements by each of the Issuer, the
Guarantors and Subsidiaries (to the extent a party thereto) and the
issuance and sale of the Offered Securities by the Issuer, and
compliance with the terms and provisions thereof, 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
Issuers and the Guarantors, foreign, statute, rule, regulation or order
of any governmental agency or body or any court having jurisdiction
over FSC Semiconductor, the Issuer or any Subsidiary or any of their
properties, or any agreement or instrument to which FSC Semiconductor,
the Issuer or any such Subsidiary is a party or by which FSC
Semiconductor, the Issuer or any such Subsidiary is bound or to which
any of the properties of FSC Semiconductor, the Issuer or any such
Subsidiary is subject, or the charter or by-laws of FSC Semiconductor,
the Issuer or any such Subsidiary, and the Issuer has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(j) To the knowledge of the Issuer and the Guarantors without
independent investigation, the execution, delivery and performance by
Samsung and Mezzanine Fund of the Transaction Agreements and compliance
with the terms and provisions thereof 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 Issuers and the
Guarantors, foreign statute, rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
Samsung or Mezzanine Fund or any of their properties, or any agreement
or instrument to which Samsung or Mezzanine Fund is bound or to which
any of the properties of Samsung or Mezzanine Fund is subject, or the
charter or by-laws of Samsung or Mezzanine Fund.
(k) Except as disclosed in the Offering Document, each of the
Issuer, FSC Semiconductor, the Subsidiaries and the PD Business has a
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 Offering Document, each of the
Issuer, FSC Semiconductor, the Subsidiaries and the PD Business holds
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.
(l) Each Transaction Agreement has been or will be duly
authorized, executed and delivered by each of the Issuer, the
Guarantors and the Subsidiaries and, to the knowledge of the Issuer and
the Guarantors without independent verification, by Samsung and
Mezzanine Fund (to the extent a party thereto) and conforms in all
material respects to the descriptions thereof in the Offering Document.
Each Transaction Agreement, when executed or when so executed, will
constitute a valid and legally binding obligation of each of the
Issuer, the Guarantors and the Subsidiaries (to the extent a party
thereto) and will be enforceable in accordance with its terms, except
to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws, now or hereinafter in
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effect, relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law). The Issuer has
delivered to the Initial Purchasers a true and correct copy of the
Business Transfer Agreement in the form originally executed, and there
have been no amendments or waivers to the Business Transfer Agreement
(or exhibits or schedules thereto) other than those as to which the
Initial Purchasers have been advised. At the Closing Date, the Issuer
will deliver to the Initial Purchasers true and correct copies of all
other Transaction Agreements in the form originally executed.
(m) Each of the Issuer, FSC Semiconductor, the PD Business and
the Subsidiaries possesses 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 Offering
Document or except where the failure to so possess would not,
singularly or in the aggregate, have a Material Adverse Effect; and has
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 Issuer, FSC Semiconductor, the PD Business
or any Subsidiary, would individually or in the aggregate have a
Material Adverse Effect.
(n) No material labor dispute with the employees of any of the
Issuer, FSC Semiconductor, the PD Business or any Subsidiary exists or,
to the knowledge of the Issuer or any Guarantor, is imminent, that
might have a Material Adverse Effect.
(o) Each of the Issuer, FSC Semiconductor, the PD Business and
the Subsidiaries owns, possesses, has 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 Issuer, FSC Semiconductor, the PD Business or any Subsidiary, would
individually or in the aggregate have a Material Adverse Effect.
(p) Except as disclosed in the Offering Document, none of the
Issuer, FSC Semiconductor, the PD Business or any Subsidiary 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 Issuer nor
any Guarantor is aware of any pending investigation which might lead to
such a claim.
(q) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Issuer,
FSC Semiconductor, the PD Business, any Subsidiary or any of their
respective properties that, if determined adversely to the Issuer, FSC
Semiconductor, the PD Business or any Subsidiary, 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 the
consummation of the Transactions; and no such actions, suits or
proceedings are, to the Issuer's or any Guarantor's knowledge,
threatened.
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(r) The financial statements of the Issuer and FSC
Semiconductor included in the Offering Document present fairly the
financial position of the Issuer and its consolidated Subsidiaries and
FSC Semiconductor on the basis stated in the Offering Document 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; and the unaudited pro
forma financial statements, and the related notes thereto, included in
the Offering Document and the assumptions used in preparing such pro
forma financial statements are 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.
(s) To the knowledge of the Issuer and the Guarantors, the
financial statements of the PD Business included in the Offering
Document present fairly the financial position of the PD Business 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; and the unaudited pro
forma financial statements, and the related notes thereto, included in
the Offering Document and the assumptions used in preparing such pro
forma financial statements are 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.
(t) Except as disclosed in the Offering Document, (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 Issuer, FSC Semiconductor and the Subsidiaries taken as a whole,
since the date of the most recent audited financial statements of the
Issuer and FSC Semiconductor included in the Offering Document or of
the PD Business since the date of the most recent audited financial
statements of the PD Business included in the Offering Document and
(ii) there has been no dividend or distribution of any kind declared,
paid or made by the Issuer or any Guarantor on any class of its capital
stock since the date of the most recent audited financial statements of
the Issuer and FSC Semiconductor included in the Offering Document.
(u) Neither the Issuer nor any Guarantor 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 Issuer and the Guarantors 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 Offering
Document, will not be an "investment company" as defined in the
Investment Company Act.
(v) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities or
the Guarantees are listed on any national securities exchange
registered under Section 6 of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), or quoted in a U.S. automated
inter-dealer quotation system.
(w) Assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 4 hereof, the offer and
sale of the Offered Securities by the Issuer to the
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several Initial Purchasers in the manner contemplated by this Agreement
will be exempt from the registration requirements of the Securities Act
by reason of Section 4(2) thereof and Regulation S; and it is not
necessary to qualify the indenture in respect of the Offered Securities
under the United States Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT").
(x) None of the Issuer or any Guarantor, nor any of their
affiliates, nor any person acting on their behalf (i) has, within the
six-month period prior to the date hereof, offered or sold in the
United States or to any U.S. person (as such terms are defined in
Regulation S under the Securities Act) the Offered Securities or any
Guarantee or any security of the same class or series as the Offered
Securities or any Guarantee or (ii) has offered or will offer or sell
the Offered Securities or any Guarantee (A) in the United States by
means of any form of general solicitation or general advertising within
the meaning of Rule 502(c) under the Securities Act or (B) with respect
to any securities sold in reliance on Rule 903 of Regulation S, by
means of any directed selling efforts within the meaning of Rule 902(b)
of Regulation S. Neither the Issuer nor any Guarantor has entered and
will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities or the Guarantees except for
this Agreement.
(y) The Issuer is subject to Section 13 or 15(d) of the
Exchange Act.
(z) There is no "substantial U.S. market interest" as defined
in Rule 902(j) of Regulation S in the Issuer's or any Guarantor's debt
securities or in the Exchange Notes (as defined in the Registration
Rights Agreement).
(aa) None of the Issuer, FSC Semiconductor and the
Subsidiaries or, to the best knowledge of the Issuer, FSC Semiconductor
or any Subsidiary, any director, officer, agent, employee or other
person associated with or acting on behalf of the Issuer, FSC
Semiconductor 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.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the
basis of the representations, warranties and agreements contained herein, but
subject to the terms and conditions set forth herein, the Issuer agrees to sell
to the Initial Purchasers, and the Initial Purchasers agree, severally and not
jointly, to purchase from the Issuer, at a purchase price of 97% of the
principal amount thereof plus accrued interest from April 7 to the Closing Date
(as hereinafter defined), the respective principal amounts of Offered Securities
set forth opposite the names of the several Initial Purchasers in Schedule A
hereto.
The Issuer will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global Securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Initial Purchasers in Federal (same day) funds
by wire transfer to an account previously designated by the Issuer to CSFBC at a
bank acceptable to CSFBC at the office of Cravath, Swaine & Xxxxx at 10:00 A.M.
(New York time), on April 7, 1999, or at such other time not later than seven
full business days thereafter as CSFBC and the Issuer determine, such time being
herein referred to as the "CLOSING DATE," against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the Offered
Securities. The Global Securities will be made available for checking at the
above office at least 24 hours prior to the Closing Date.
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4. REPRESENTATIONS BY INITIAL PURCHASERS; RESALE BY INITIAL
PURCHASERS.
(a) Each Initial Purchaser severally represents and warrants
to the Issuer that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(b) Each Initial Purchaser severally acknowledges that the
Offered Securities have not been registered under the Securities Act
and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the registration
requirements of the Securities Act. Each Initial Purchaser severally
represents and agrees that it has offered and sold the Offered
Securities and will offer and sell the Offered Securities (i) as part
of their distribution at any time and (ii) otherwise until the later of
the commencement of the offering and the Closing Date, only in
accordance with Rule 144A ("RULE 144A") or Rule 903 under the
Securities Act. Accordingly, neither such Initial Purchaser nor its
affiliates, nor any persons acting on its or their behalf, have engaged
or will engage in any directed selling efforts with respect to the
Offered Securities, and such Initial Purchaser, its affiliates and all
persons acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. Terms used
in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Initial Purchaser severally represents, warrants and
agrees that it and each of its affiliates has not entered and will not
enter into any contractual arrangement with respect to the distribution
of the Offered Securities except for any such arrangements with the
other Initial Purchasers or affiliates of the other Initial Purchasers
or with the prior written consent of the Issuer.
(d) Each Initial Purchaser severally agrees that it and each
of its affiliates or anyone acting on its behalf will not offer or sell
the Offered Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the
Securities Act, including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper,
magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. Each Initial Purchaser
severally agrees, with respect to resales made in reliance on Rule 144A
of any of the Offered Securities, to deliver either with the
confirmation of such resale or otherwise prior to settlement of such
resale a notice to the effect that the resale of such Offered
Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Initial Purchasers severally represents,
warrants and agrees that (i) it has not offered or sold and prior to
the date six months after the date of issue of the Offered Securities
will not offer or sell any Offered Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal
or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer
to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Xxx
0000 with respect to anything done by it in relation to the Offered
Securities in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the
issue of the Offered Securities to a person who is of a kind described
in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
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(f) Xxxxxxx Xxxxx Xxxxxx Inc. represents, warrants and agrees
that it and each of its affiliates will not engage in market making
activities with respect to the Offered Securities for which the
Securities Act requires the delivery of a prospectus.
5. CERTAIN AGREEMENTS OF THE ISSUER. The Issuer agrees with the several
Initial Purchasers that:
(a) The Issuer will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent, which consent
will not be unreasonably withheld. If, at any time prior to the
completion of the initial resale of the Offered Securities by the
Initial Purchasers any event occurs as a result of which the Offering
Document as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order 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 such time to amend or supplement the Offering Document
to comply with any applicable law, the Issuer promptly will notify
CSFBC of such event and promptly will prepare, at its own expense, an
amendment or supplement which will correct such statement or omission
or effect such compliance. Neither CSFBC's consent to, nor the Initial
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth
in Section 6.
(b) The Issuer will furnish to CSFBC copies of the Offering
Document and all amendments and supplements to such Offering Document,
in each case as soon as available and in such quantities as CSFBC
reasonably requests, and the Issuer will furnish to CSFBC on the date
hereof three copies of the Offering Document signed by a duly
authorized officer of the Issuer, one of which will include the
independent accountants' reports therein manually signed by such
independent accountants. At any time when the Issuer is not subject to
Section 13 or 15(d) of the Exchange Act, the Issuer will promptly
furnish or cause to be furnished to CSFBC (and, upon request, to each
of the other Initial Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, a reasonable number of copies of the information required
to be delivered to holders and prospective purchasers of the Offered
Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any
successor provision thereto) in order to permit compliance with Rule
144A in connection with resales by such holders of the Offered
Securities. The Issuer will pay the expenses of printing and
distributing to the Initial Purchasers all such documents.
(c) The Issuer, in cooperation with the Initial Purchasers and
their counsel, will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States
and Canada as CSFBC designates and will continue such qualifications in
effect so long as required for the resale of the Offered Securities by
the Initial Purchasers provided that the Issuer will not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any such state.
(d) During the period of three years hereafter, the Issuer
will furnish to CSFBC and, upon request, to each of the other Initial
Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year, if any such
report is prepared and circulated; and the Issuer will furnish to CSFBC
and, upon request, to each of the other Initial Purchasers as soon as
available, a copy of each report and any definitive proxy statement of
the Issuer filed with the Commission under the Exchange Act or mailed
to shareholders.
(e) During the period of two years hereafter or, if earlier,
until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), the
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Issuer will, upon request, furnish to CSFBC, each of the other Initial
Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years hereafter or, if earlier,
until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), the
Issuer will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(g) During the period of two years hereafter or, if earlier,
until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), the
Issuer will not be or become 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.
(h) The Issuer will pay all expenses incidental to the
performance of its obligations under the Operative Documents, including
(i) the fees and expenses of the Trustee and its professional advisers;
(ii) all expenses in connection with the execution, issuance,
authentication, packaging and initial delivery of the Offered
Securities, the preparation and printing of the Offered Securities, the
Offering Document and amendments and supplements thereto, and any other
document relating to the issuance, offer, sale and delivery of the
Offered Securities; (iii) the cost of qualifying the Offered Securities
for trading in The PortalSM Market ("PORTAL") of The Nasdaq Stock
Market, Inc. and any expenses incidental thereto; (iv) the cost of any
advertising approved by the Issuer in connection with the issuance of
the Offered Securities; (v) for any 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; (vi)
for any fees charged by investment rating agencies for the rating of
the Offered Securities; and (vii) for expenses incurred in distributing
the Offering Document (including any amendments and supplements
thereto) to the Initial Purchasers. The Issuer will reimburse the
Initial Purchasers for all travel expenses of Issuer's officers and
employees and any other expenses of the Issuer in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities.
(i) In connection with the offering, until CSFBC shall have
notified the Issuer and the other Initial Purchasers of the completion
of the resale of the Offered Securities, neither the Issuer 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 90 days after the date of the initial
offering of the Offered Securities by the Initial Purchasers, neither
the Issuer nor the Subsidiaries will offer, sell, contract to sell,
pledge, or otherwise dispose of, directly or indirectly, any United
States dollar-denominated debt securities issued or guaranteed by the
Issuer, FSC Semiconductor or any Subsidiary in any transaction
involving a public offering or a private placement in connection with
intended resale under Rule 144A under the Securities Act and having a
maturity of more than three years from the date of issue or publicly
disclose the intention to make any such offer, sale, pledge or
disposal, without the prior written consent of CSFBC. Neither FSC
Semiconductor, the Issuer, nor any Subsidiary will at any time offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale,
pledge, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act or the safe
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harbor of Regulation S thereunder to cease to be applicable to the
offer and sale of the Offered Securities.
(k) The Issuer will apply the net proceeds of the offering and
the sale of the Offered Securities in the manner set forth in the
Offering Document under the caption "Sources and Uses of Proceeds."
(l) The Issuer will deposit the proceeds of the sale of the
Offered Securities into an escrow account, pursuant to the terms of the
Escrow Agreement to be dated April 7, 0000 xxxxxxx xxx Xxxxxx xxx
Xxxxxx Xxxxxx Trust Company of New York, as Escrow Agent.
(m) The Issuer will not be in default, or will have received
an appropriate waiver with respect to any default, under its Amended
and Restated Credit Facility dated as of March 11, 1997.
6. CONDITIONS OF THE OBLIGATIONS OF THE INITIAL PURCHASERS. The
obligations of the several Initial Purchasers to purchase and pay for the
Offered Securities will be subject to the accuracy of the representations and
warranties on the part of the Issuer and each Guarantor 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 officers of the Issuer and each Guarantor made pursuant to the provisions
hereof, to the performance by the Issuer and each Guarantor of their obligations
hereunder and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a letter, dated
the date of this Agreement, of KPMG Peat Marwick LLP, independent
auditors for the Issuer and FSC Semiconductor, substantially in the
form of Exhibit A hereto and acceptable to the Initial Purchasers.
(b) The Initial Purchasers shall have received a letter, dated
the date of this Agreement, of Samil Accounting Corporation,
independent auditors for the PD Business, substantially in the form of
Exhibit B hereto and acceptable to the Initial Purchasers.
(c) 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
proposed issue, sale or distribution 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 Issuer, FSC Semiconductor and the
Subsidiaries taken as a whole or of the PD Business which, in the
reasonable judgment of CSFBC, is material and adverse and makes it
impractical or inadvisable to proceed with the completion of the
offering or the sale of and payment for the Offered Securities; (iii)
any downgrading in the rating of any debt securities of the Issuer 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 Issuer (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
Issuer 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
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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 Initial Purchasers, 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 offering or sale of and payment for the Offered
Securities.
(d) Concurrently with or prior to the issuance and sale of the
Offered Securities by the Issuer, the Transactions shall be consummated
on terms that conform in all material respects to the description
thereof in the Offering Document and the Transaction Documents;
PROVIDED, HOWEVER, that in order to satisfy certain requirements of
Korean law, the Acquisition may be consummated after the issuance and
sale of the Offered Securities; and the Initial Purchasers shall have
received true and correct copies of all documents pertaining thereto
and evidence reasonably satisfactory to the Initial Purchasers of the
consummation thereof.
(e) Concurrently with or prior to the issuance and sale of the
Offered Securities by the Issuer, the Issuer and each Guarantor party
thereto shall have entered into the Transaction Agreements; PROVIDED,
HOWEVER, that in order to satisfy certain requirements of Korean law,
the Transaction Agreements may be entered into after the issuance and
sale of the Offered Securities. There shall exist at and as of the
later of the Closing Date and the date of the consummation of the
Acquisition (after giving effect to the transactions contemplated by
this Agreement and the Transactions) no condition that would constitute
a default (or an event that with notice or lapse of time, or both,
would constitute a default) under any Transaction Agreement.
(f) The Initial Purchasers shall have received an opinion,
dated the Closing Date, of Xxxxxx X. Xxxxx, General Counsel of the
Issuer, that:
(i) Each of the Subsidiaries 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 Offering Circular; 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 Offering Documents,
insofar as is known to such counsel, there are no actions,
suits or proceedings threatened or pending against the
Subsidiaries or any of their respective properties that if
determined adversely to any Subsidiary would be reasonably
likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received an opinion,
dated the Closing Date, of Dechert Price & Xxxxxx, counsel for the
Issuer, that:
(i) the Issuer 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 Offering Circular; and the
Issuer is duly qualified to do business as a foreign
corporation and is in good standing in the jurisdictions
listed in such opinion;
(ii) each Guarantor is a corporation in good standing
under the laws of the State of Delaware;
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(iii) insofar as is known to such counsel, to the
extent the Offering Circular 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 Issuer and the Guarantors have duly
authorized the execution, delivery and performance of the
Operative Documents and the consummation of the transactions
contemplated thereby;
(v) the Operative Documents constitute valid and
legally binding obligations of the Issuer and each Guarantor,
subject to bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally, general
equitable principles and the discretion of courts in granting
equitable remedies and except that any rights to indemnity and
contribution may be limited or prohibited by Federal and state
securities laws and public policy considerations; the Offered
Securities have been duly authorized and executed by the
Issuer and conform to the description thereof contained in the
Offering Document and the Indenture and, when duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will constitute
valid and legally binding obligations of the Issuer, subject
to bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, general
equitable principles and the discretion of the courts in
granting equitable remedies;
(vi) assuming the accuracy of the representation and
warranty of the Issuer and the Guarantors contained in Section
2(x) of this Agreement and the accuracy of the representations
and warranties of the Initial Purchasers contained in Section
4 of this Agreement, no consent, approval, authorization or
order of, or filing with, any governmental agency or body or
any court is required for the performance by each of the
Issuer and the Guarantors of its obligations under the
Operative Documents or in connection with the issuance and
sale of the Offered Securities by the Issuer, except such as
have been obtained or made or as may be required under the
Securities Act or the Exchange Act and the rules and
regulations of the Commission thereunder with respect to the
Registration Rights Agreement and the transactions
contemplated 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;
(vii) the execution, delivery and performance of the
Operative Documents and the Transaction Agreements by the
Issuer and the Guarantors (to the extent a party thereto) and
the issuance and sale of the Offered Securities by the Issuer
and compliance with the terms and provisions of the foregoing
will not (A) result in a breach or violation of any of the
terms and provisions of (1) any material New York or Federal
statute, rule or regulation applicable to the Issuer or the
Guarantors or (2) any order of any governmental agency or body
or any court having jurisdiction over the Issuer or the
Guarantors or any of their properties and which order is known
to such counsel, or (B) result in a breach or violation of any
of the terms or provisions of, or constitute a default under,
any Transaction Agreements (upon execution and delivery of
such Transaction Agreements) listed in such opinion, or (C)
result in a violation of the charter or by-laws of the Issuer
or the Guarantors;
(viii) other than those already obtained or applied
for, no consent, approval, authorization or order of, or
filing with, any New York or Federal governmental agency or
body or any New York or Federal court is required in
connection with the
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consummation of the transactions contemplated by the
Transaction Agreements by the Issuer or the Guarantors, 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;
(ix) each of the Transaction Agreements has been duly
authorized by each of the Issuer and the Guarantors (to the
extent a party thereto) and each of the Transaction Agreements
listed in such opinion will, when duly executed, constitute a
valid and legally binding obligation of each of the Issuer or
the Guarantors (to the extent a party thereto) and is
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and similar
laws affecting creditors' rights generally, general equitable
principles and the discretion of the courts in granting
equitable remedies;
(x) except as disclosed in the Offering Documents,
insofar as is known to such counsel, there are no actions,
suits or proceedings threatened or pending against the Issuer
or the Guarantors or any of their respective properties that
if determined adversely to the Issuer or any such Guarantor
would be reasonably likely to have a Material Adverse Effect;
(xi) neither the Issuer or any Guarantor 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"), nor is
either a closed-end investment company required to be
registered, but not registered, thereunder; and neither the
Issuer or any Guarantor is nor, after giving effect to the
offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Offering Documents, will be, an "investment company" as
defined in the Investment Company Act; and
(xii) assuming the accuracy of the representations
and warranties of the Initial Purchasers contained in Section
4 of this Agreement, it is not necessary in connection with
the offer and sale of the Offered Securities in the manner
contemplated by this Agreement to register the Offered
Securities under the Securities Act (it being understood that
no opinion shall be expressed as to any subsequent resale of
any Offered Securities), or to qualify the Indenture under the
Trust Indenture Act.
In addition, such counsel shall state in a separate letter
that they have participated in conferences with officers and other
representatives of the Issuer and representatives of the Initial
Purchasers and its counsel during which the contents of the Offering
Circular 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 Offering Circular, 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 the Offering Circular or any 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 need express no belief), as of the
date of the Offering Circular or any such supplement thereto and as of
the Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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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 Initial Purchasers (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.
(h) The Initial Purchasers shall have received from Cravath,
Swaine & Xxxxx, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of
the Issuer, the validity of the Offered Securities, the Offering
Circular, the exemption from registration for the offer and sale of the
Offered Securities by the Issuer to the several Initial Purchasers and
the resales by the several Initial Purchasers as contemplated hereby
and other related matters as CSFBC may require, and the Issuer shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(i) The Initial Purchasers shall have received an opinion,
dated the Closing Date, from Xxx & Xxxxx, special counsel for the
Issuer, substantially in the form of Exhibit C hereto and acceptable to
the Initial Purchasers.
(j) The Initial Purchasers shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of each of the Issuer and
each Guarantor in which such officers, to the best of their knowledge
after reasonable investigation and in their capacity as such officers,
on behalf of the Issuer and the Guarantors, as appropriate, shall state
that the representations and warranties of the Issuer and the
Guarantors, as appropriate, in this Agreement are true and correct,
that the Issuer and the Guarantors, as appropriate, have complied with
all agreements and satisfied all conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date and
that, subsequent to the dates of the most recent financial statements
of the Issuer in the Offering Document, 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 FSC Semiconductor, the
Issuer and the Subsidiaries, taken as a whole, except as set forth in
or contemplated by the Offering Document or as described in such
certificate.
(k) The Initial Purchasers shall have received a letter, dated
the Closing Date, of KPMG Peat Marwick 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 five
business days prior to the Closing Date for the purposes of this
subsection (k).
(l) The Initial Purchasers 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) Each Guarantor shall have become a party to this Agreement
and the Registration Rights Agreement and shall be subject to all the
terms and provisions of each, and all representations and warranties
regarding each Guarantor contained herein shall be true and correct.
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(n) The Issuer will furnish the Initial Purchasers with such
conformed copies of such opinions, certificates, letters and documents
as the Initial Purchasers reasonably request. CSFBC may in its sole
discretion waive on behalf of the Initial Purchasers compliance with
any conditions to the obligations of the Initial Purchasers hereunder.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Issuer and the Guarantors
will jointly and severally indemnify and hold harmless each Initial Purchaser,
its partners, directors and officers and each person, if any, who controls such
Initial Purchaser within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Initial Purchaser may become subject, under the Securities Act or the
Exchange 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
the Offering Document, or any amendment or supplement thereto, 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 in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, including any losses, claims, damages or liabilities arising out of
or based upon the Issuer's failure to perform its obligations under Section 5(a)
of this Agreement, and will reimburse each Initial Purchaser for any legal or
other expenses reasonably incurred by such Initial Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; PROVIDED, HOWEVER, that the Issuer and the
Guarantors 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 Issuer by any Initial Purchaser through CSFBC specifically for use
therein, it being understood and agreed that the only such information consists
of the information described as such in subsection (b) below; and PROVIDED
FURTHER, HOWEVER, that the foregoing indemnity with respect to the Preliminary
Offering Circular shall not inure to the benefit of the Initial Purchaser 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
Initial Purchaser result from a fact that such Initial Purchaser 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 Offering Circular (as amended or supplemented), if the Company had
previously furnished a copy of such amendments or supplements to such Initial
Purchaser, and the losses, claims, damages, liabilities or actions in respect
thereof of such Initial Purchaser result from an untrue statement or omission of
a material fact contained in the Preliminary Offering Circular, which was
corrected in the Offering Circular.
(b) Each Initial Purchaser will severally and not jointly indemnify and
hold harmless each of the Issuer, each Guarantor, their directors and officers
and each person, if any, who controls each of the Issuer and each Guarantor
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities to which each of the Issuer and each Guarantor
may become subject, under the Securities Act or the Exchange 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 the Offering Document, or any
amendment or supplement thereto, 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 in order 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 Issuer by such Initial
Purchaser through CSFBC specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Issuer or any Guarantor 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
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information furnished by any Initial Purchaser consists of the following
information in the Offering Document: the paragraphs three, four (second
sentence only), five, seven (second and third sentences only), eight, nine and
ten (second, third, fourth, seventh and eighth sentences only) under the caption
"Plan of Distribution."
(c) Promptly after receipt by an indemnified party under this Section 7
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) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party (i) will not
relieve it from liability under subsection (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any liability which
it may have to any indemnified party otherwise than under subsection (a) or (b)
above. 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 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 7 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 includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) 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) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer on the one hand and the Initial Purchasers on the other from the
offering of the Offered Securities 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 Issuer on the one hand and the Initial
Purchasers 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 Issuer
on the one hand and the Initial Purchasers 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 Issuer bear to the total discounts and
commissions received by the Initial Purchasers from the Issuer under this
Agreement. 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 Issuer or the Initial Purchasers 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 (d) 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 (d). Notwithstanding the provisions of this subsection (d), no
Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities purchased by it
were resold exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
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statement or omission or alleged omission. The Initial Purchasers' obligations
in this subsection (d) to contribute are several in proportion to their
respective purchase obligations and not joint.
(e) The obligations of each of the Issuer and each Guarantor under this
Section 7 shall be in addition to any liability which each of the Issuer and
each Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Initial Purchaser within
the meaning of the Securities Act or the Exchange Act; and the obligations of
the Initial Purchasers under this Section 7 shall be in addition to any
liability which the respective Initial Purchasers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
each of the Issuer and each Guarantor within the meaning of the Securities Act
or the Exchange Act.
8. DEFAULT OF INITIAL PURCHASERS. If any Initial Purchaser or
Purchasers default in their obligation to purchase Offered Securities hereunder
and the aggregate principal amount of the Offered Securities that such
defaulting Initial Purchaser or Purchasers agreed but failed to purchase does
not exceed 10% of the total principal amount of the Offered Securities, CSFBC
may make arrangements satisfactory to the Issuer for the purchase of such
Offered Securities by other persons, including any of the Initial Purchaser or
Purchasers, but if no such arrangements are made by the Closing Date, the
non-defaulting Initial Purchaser or Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Initial Purchaser or Purchasers agreed but
failed to purchase. If any Initial Purchaser or Purchasers so defaults and the
aggregate principal amount of the Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of the
Offered Securities and arrangements satisfactory to CSFBC and the Issuer 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 Initial Purchaser or Purchasers or the Issuer, except
as provided in Section 9. As used in this Agreement, the term "INITIAL
PURCHASER" includes any person substituted for an Initial Purchaser or
Purchasers under this Section 8. Nothing herein will relieve a defaulting
Initial Purchaser from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of
each of the Issuer and each Guarantor or their officers and of the several
Initial Purchasers 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 Initial Purchaser, the Issuer,
any Guarantor 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 Initial Purchasers
is not consummated, each of the Issuer and each Guarantor shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of the Issuer, the Guarantors and the Initial
Purchasers pursuant to Section 7 shall remain in effect. If the purchase of the
Offered Securities by the Initial Purchasers 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 (i), (iii), (iv),
(v) or (vi) of Section 6(c), the Issuer and the Guarantors will reimburse the
Initial Purchasers for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by them as Initial Purchasers in
connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Initial Purchasers, will be mailed, delivered or telegraphed and
confirmed to the Initial Purchasers, 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 Issuer or the
Guarantors, will be mailed, delivered or telegraphed and confirmed to it at
Xxxxxxxxx Semiconductor Corporation, 000 Xxxxxxx Xxxxxx, Mail Stop 00-00, Xxxxx
Xxxxxxxx, XX 00000, Attention: General Counsel; PROVIDED,
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HOWEVER, that any notice to an Initial Purchaser pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such Initial Purchaser.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Issuer as if such holders
were parties hereto.
12. REPRESENTATION OF INITIAL PURCHASERS. You will act for the several
Initial Purchasers in connection with this purchase, and any action under this
Agreement taken by you jointly or by CSFBC will be binding upon all of the
Initial Purchasers.
13. REPRESENTATIONS AND AGREEMENTS OF THE GUARANTORS. All
representations and warranties regarding the Guarantors shall be deemed to have
been made as of, and all agreements of the Guarantors shall be effective
following, the date any Guarantor becomes a party hereto. Notwithstanding this
Section 13, this Agreement will be binding as between the Issuer and the Initial
Purchasers as of and following the date hereof.
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.
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 Issuer and the Guarantors 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 Initial Purchasers'
understanding of our agreement, kindly sign and return to the Issuer one of the
counterparts hereof, whereupon it will become a binding agreement among the
Issuer, the Guarantors and the several Initial Purchasers in accordance with its
terms.
Very truly yours,
XXXXXXXXX SEMICONDUCTOR CORPORATION,
by:
--------------------------------------
Name:
Title:
FSC SEMICONDUCTOR CORPORATION,
as Guarantor,
by:
--------------------------------------
Name:
Title:
XXXXXXXXX SEMICONDUCTOR CORPORATION
OF CALIFORNIA ,
as Guarantor,
by:
--------------------------------------
Name:
Title:
The foregoing Purchase Agreement
is hereby confirmed and accepted as
of the date first above written.
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CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
FLEET SECURITIES, INC.
Acting on behalf of themselves and as the Representatives of the several Initial
Purchasers.
CREDIT SUISSE FIRST BOSTON CORPORATION
by:
--------------------------------
Name:
Title:
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SCHEDULE A
PRINCIPAL AMOUNT OF
INITIAL PURCHASER OFFERED SECURITIES
----------------- -------------------
Credit Suisse First Boston Corporation..................................... $150,000,000
Xxxxxx Xxxxxxx & Co. Incorporated.......................................... 63,000,000
Xxxxxxx Xxxxx Barney Inc................................................... 63,000,000
Fleet Securities, Inc...................................................... 24,000,000
-------------
Total........................................... $300,000,000
=============
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SCHEDULE B
SUBSIDIARY PLACE OF INCORPORATION
----------- ------------------------
XXXXXXXXX SEMICONDUCTOR LIMITED United Kingdom
Xxxxxxxxx Semiconductor GmbH Germany
Xxxxxxxxx Semiconductor Asia Pacific Pte. Ltd. Singapore
Xxxxxxxxx Semiconductor (Malaysia) Sdn. Bhd. Malaysia
Xxxxxxxxx Semiconductor Hong Kong Limited Hong Kong
Xxxxxxxxx Semiconductor Hong Kong (Holdings) Limited Hong Kong
Xxxxxxxxx Semiconductor Japan K.K. Japan
Xxxxxxxxx Semiconductor Srl Italy
Xxxxxxxxx Semiconductors de Mexico S. de X.X. de C.V. Mexico
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EXHIBIT A
Form of Comfort Letter of KPMG Peat Marwick LLP, pursuant to Section 6(a).
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EXHIBIT B
Form of Comfort Letter of Samil Accounting Corporation, pursuant to Section 6(b)
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EXHIBIT C
Form of Opinion of Xxx & Xxxxx, pursuant to Section 6(i)
1. Fairchild Korea Semiconductor Ltd. ("Fairchild Korea") is a
limited liability company (chusik hoesa) duly organized and
validly existing under the laws of the Republic of Korea; and
Fairchild Korea has the corporate power to own its property
and conduct its business in accordance with its Articles of
Incorporation and to purchase and acquire the power device
division of Samsung in accordance with the Business Transfer
Agreement.
2. The purchase and acquisition by Fairchild Korea of the power
device division of Samsung in accordance with the Business
Transfer Agreement will not violate or conflict with any
agreement or instrument to which Fairchild Korea is subject to
and is known to us, Fairchild Korea's Articles of
Incorporation, or any provision of any Korean statute, rule or
regulation with the effect of law.
3. The Business Transfer Agreement has been duly executed and
delivered by Samsung and constitutes the valid and legally
binding obligation of Samsung, enforceable against Samsung in
accordance with its terms (assuming finalization of the
Schedules attached thereto).
4. Notwithstanding that certain other licenses and permits may be
required for Fairchild Korea to conduct its business, no
separate business license is necessary under the Korean laws
in order for Fairchild Korea to engage in developing,
manufacturing and selling power device products.
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