EXHIBIT 99.b
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT is entered into as of May 30, 2000, between
Conexant Systems Inc., a corporation existing under the laws of the State of
Delaware ("ParentCo"), and Philsar Semiconductor Inc., a corporation
incorporated under the laws of Canada (the "Corporation").
WHEREAS, pursuant to a reorganization agreement dated as of April 11,
2000, (such agreement as it may be amended or restated is hereinafter referred
to as the "Reorganization Agreement") by and between ParentCo, the Corporation
and certain shareholders of the Corporation, the parties agreed that on the
closing of the transaction contemplated under the Reorganization Agreement,
ParentCo and the Corporation would execute and deliver a Support Agreement
containing the terms and conditions set forth in an Exhibit to the
Reorganization Agreement together with such other terms and conditions as may
be agreed to by the parties to the Reorganization Agreement acting reasonably.
AND WHEREAS, pursuant to a reorganization of the capital structure of
the Corporation (the "Reorganization") contemplated in the Reorganization
Agreement, the Corporation issued certain exchangeable shares (the "Exchangeable
Shares") having attached thereto certain rights, privileges, restrictions and
conditions (collectively, the "Exchangeable Share Provisions").
AND WHEREAS, the parties hereto desire to make appropriate provision
and to establish a procedure whereby ParentCo will take certain actions and make
certain payments and deliveries necessary to ensure that the Corporation will be
able to make certain payments and to deliver or cause to be delivered ParentCo
Common Shares in satisfaction of the obligations of the Corporation under i) the
Exchangeable Share Provisions with respect to the payment and satisfaction of
dividends, Liquidation Amounts, Retraction Prices and Redemption Prices, all in
accordance with the Exchangeable Share Provisions and ii) pursuant to the Share
Option Plan, the Convertible Debenture and the Warrants as defined below.
NOW, THEREFORE, in consideration of the respective covenants and
agreements provided in this agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms. Except as expressed in the following sentence, each term
denoted herein by initial capital letters and not otherwise defined herein shall
have the meaning attributed thereto in the Exchangeable Share Provisions, unless
the context requires otherwise. The terms "Share Option Plan", "Employee Stock
Options", Convertible Debentures", "Convertible Debenture Options" and
"Warrants" shall have the meaning ascribed to them in the Reorganization
Agreement (in each case giving effect to the amendments thereof contemplated by
the Reorganization Agreement).
1.2 Interpretation Not Affected by Headings, Etc. The division of this agreement
into articles, sections and paragraphs and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this agreement.
1.3 Number, Gender, Etc. Words importing the singular number only shall include
the plural and vice versa. Words importing the use of any gender shall include
all genders.
1.4 Date for Any Action. If any date on which any action is required to be taken
under this agreement is not a Business Day, such action shall be required to be
taken on the next succeeding Business Day.
ARTICLE 2
COVENANTS OF PARENTCO AND THE CORPORATION
2.1 Covenants of ParentCo Regarding Exchangeable Shares. So long as any
Exchangeable Shares are outstanding, ParentCo will:
(a) not declare or pay any dividend on ParentCo Common Shares unless (A)
the Corporation will have sufficient assets, funds and other property
available to enable the due declaration and the due and punctual
payment in accordance with applicable law of an equivalent dividend on
the Exchangeable Shares and (B) subsection 2.1(b) shall be complied
with in connection with such dividend;
(b) cause the Corporation to declare simultaneously with the declaration of
any dividend on ParentCo Common Shares an equivalent dividend on the
Exchangeable Shares and, when such dividend is paid on ParentCo Common
Shares, cause the Corporation to pay simultaneously therewith such
equivalent dividend on the Exchangeable Shares, in each case in
accordance with the Exchangeable Share Provisions;
(c) advise the Corporation sufficiently in advance of the declaration by
ParentCo of any dividend on ParentCo Common Shares and take all such
other actions as are necessary, in cooperation with the Corporation, to
ensure that the respective declaration date, record date and payment
date for a dividend on the Exchangeable Shares shall be the same as the
record date, declaration date and payment date for the corresponding
dividend on ParentCo Common Shares;
(d) take all such actions and do all such things as are necessary or
desirable to enable and permit the Corporation, in accordance with
applicable law, to pay and otherwise perform its obligations with
respect to the satisfaction of the Exchangeable Share Consideration
representing the Liquidation Amount in respect of each issued and
outstanding Exchangeable Share upon the liquidation, dissolution or
winding-up of the Corporation or any other distribution of the assets
of the Corporation for the purpose of winding up its affairs, including
without limitation all such actions and all such things as are
necessary or desirable to enable and permit the Corporation to cause to
be delivered ParentCo
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Common Shares to the holders of Exchangeable Shares in accordance with
the provisions of Article 5 of the Exchangeable Share Provisions;
(e) take all such actions and do all such things as are necessary or
desirable to enable and permit the Corporation, in accordance with
applicable law, to pay and otherwise perform its obligations with
respect to the satisfaction of the Exchangeable Share Consideration
representing the Retraction Price and the Redemption Price, including
without limitation all such actions and all such things as are
necessary or desirable to enable and permit the Corporation to cause to
be delivered ParentCo Common Shares to the holders of Exchangeable
Shares, upon the retraction or redemption of the Exchangeable Shares in
accordance with the provisions of Article 6 or Article 7 of the
Exchangeable Share Provisions, as the case may be;
(f) not exercise its vote as a shareholder to initiate the amalgamation or
voluntary liquidation, dissolution or winding-up of the Corporation nor
take any action or omit to take any action that is designed to result
in the liquidation, dissolution or winding-up of the Corporation; and
(g) take all such actions and do all such things as are necessary or
desirable to enable and permit the Corporation, in accordance with
applicable law, to perform its obligations under the provisions of the
Share Option Plan, the Convertible Debenture Options and the Warrants,
including without limitation all such actions and all such things as
are necessary or desirable to enable and permit the Corporation to
cause to be delivered ParentCo Common Shares to i) the holders of
Employee Stock Options upon exercise of such options, ii) the holders
of the Convertible Debenture Options upon the exercise of such options
and iii) the holders of the Warrants upon exercise by such holders of
their rights thereunder.
2.2 Reservation of ParentCo Common Shares. ParentCo hereby represents, warrants
and covenants that it has irrevocably reserved for issuance, or will hold in
treasury for issuance, and will at all times keep available, free from
pre-emptive and other rights, out of its authorized and unissued capital shares
such number of ParentCo Common Shares (or other shares or securities into or
shares held in treasury, which ParentCo Common Shares may be reclassified or
changed as contemplated by section 2.6 hereof) (a) as is equal to the sum of (i)
the number of Exchangeable Shares issued and outstanding from time to time, and
(ii) the number of ParentCo Common Shares necessary to satisfy the Corporation's
obligation to issue Parentco Common Shares under the Employee Share Options, the
Convertible Debenture Options and the Warrants, and (b) as are now and may
hereafter be required to enable and permit the Corporation to meet its
obligations hereunder, under the Voting and Exchange Trust Agreement and under
the Exchangeable Share Provisions.
2.3 Notification of Certain Events. In order to assist ParentCo to comply with
its obligations hereunder, the Corporation will give ParentCo notice of each of
the following events at the times set forth below:
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(a) in the event of any determination by the Board of Directors of the
Corporation in accordance with the Articles of the Corporation to
institute voluntary liquidation, dissolution or winding-up proceedings
with respect to the Corporation or to effect any other distribution of
the assets of the Corporation among its shareholders for the purpose of
winding-up its affairs, at least 30 days prior to the proposed
effective date of such liquidation, dissolution, winding-up or other
distribution;
(b) immediately, upon the earlier of (i) receipt by the Corporation of
notice of, and (ii) the Corporation otherwise becoming aware of, any
threatened or instituted claim, suit, petition or other proceedings
with respect to the involuntary liquidation, dissolution or winding-up
of the Corporation or to effect any other distribution of the assets of
the Corporation among its shareholders for the purpose of winding-up
its affairs;
(c) immediately, upon receipt by the Corporation of a Retraction Request
(as defined in the Exchangeable Share Provisions);
(d) at least 30 days prior to any accelerated Automatic Redemption Date
determined by the Board of Directors of the Corporation in accordance
with the Exchangeable Share Provisions;
(e) as soon as practicable upon the issuance by the Corporation of any
Exchangeable Shares; and
(f) as soon as practicable upon the exercise of any Employee Stock Options,
Convertible Debenture Options and Warrants.
2.4 Delivery of ParentCo Common Shares. In furtherance of its obligations
hereunder, upon notice of any event which requires the Corporation to cause to
be delivered ParentCo Common Shares to i) any holder of Exchangeable Shares, or
ii) in connection with the exercise of Employee Share Options, the Convertible
Debenture Options and the Warrants ParentCo shall forthwith issue and deliver
the requisite ParentCo Common Shares to or to the order of the former holder of
the surrendered Exchangeable Shares, or the holders of Employee Stock Options,
Convertible Debenture Options or Warrants as the case may be, on any exercise
thereof as the Corporation shall direct. All such ParentCo Common Shares shall
be duly issued as fully paid and non-assessable and shall be free and clear of
any lien, claim, encumbrance, security interest or adverse claim or interest
created by or through ParentCo.
2.5 Qualification of ParentCo Common Shares. ParentCo covenants that if any
ParentCo Common Shares to be issued and delivered hereunder (including for
greater certainty, pursuant to the Employee Share Option, the Convertible
Debenture Option and the Warrants and Exchangeable Share Provisions, or pursuant
to the Exchange Put Right, the Exchange Right or the Automatic Exchange Rights
(both as defined in the Voting and Exchange Trust Agreement)) require
registration or qualification with or approval of or the filing of any document
including
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any prospectus or similar document, the taking of any proceeding with
or the obtaining of any order, ruling or consent from any governmental or
regulatory authority under any Canadian or United States federal, provincial or
state law or regulation or pursuant to the rules and regulations of any
regulatory authority, or the fulfilment of any other legal requirement
(collectively, the "Applicable Laws") before such shares may be issued and
delivered by ParentCo to the initial holder thereof (other than the Corporation)
or in order that such shares may be freely traded thereafter (other than any
restrictions on transfer by reason of a holder being a "control person" of
ParentCo for purposes of Canadian federal or provincial securities law or an
"affiliate" of ParentCo for purposes of United States federal or state
securities law), ParentCo will in good faith expeditiously take all such actions
and do all such things as are reasonably necessary to cause such ParentCo Common
Shares to be and remain duly registered, qualified or approved to the extent and
in the manner provided in the Reorganization Agreement. ParentCo will in good
faith expeditiously take all such actions and do all such things as are
reasonably necessary to cause all ParentCo Common Shares to be delivered
hereunder (including, for greater certainty, pursuant to Employee Share Options,
the Convertible Debenture Option and the Warrants and the Exchangeable Share
Provisions or pursuant to the Exchange Put Right, the Exchange Right or the
Automatic Exchange Rights) to be listed, quoted or posted for trading on the
principal stock exchanges and quotation systems on which shares of such class
are listed, quoted or posted for trading at such time.
2.6 Equivalence. ParentCo hereby covenants and agrees to cause the Corporation
to effect the necessary amendments to the Articles of the Corporation to ensure
that the Exchangeable Shares are adjusted to fully reflect the effect of any
stock split, reverse split, stock dividend (including any dividend or
distribution of securities convertible into ParentCo Common Shares),
reorganization, recapitalization or other like change with respect to ParentCo
Common Stock occurring after the Effective Date.
2.7 Tenders Offers, Etc. In the event that a tender offer, share exchange offer,
issuer bid, take-over bid or similar transaction with respect to ParentCo Common
Shares (an "Offer") is proposed by ParentCo or is proposed to ParentCo or its
shareholders and is recommended by the Board of Directors of ParentCo, or is
otherwise effected or to be effected with the consent or approval of the Board
of Directors of ParentCo, ParentCo shall, in good faith, take all such actions
and do all such things as are necessary or desirable to enable and permit
holders of Exchangeable Shares to participate in such Offer to the same extent
and on an equivalent basis as the holders of ParentCo Common Shares, without
discrimination, including, without limiting the generality of the foregoing,
ParentCo will use its good faith efforts expeditiously to (and shall, in the
case of a transaction proposed by ParentCo or where ParentCo is a participant in
the negotiation thereof) ensure that holders of Exchangeable Shares may
participate in all such Offers without being required to retract Exchangeable
Shares as against the Corporation (or, if so required, to ensure that any such
retraction shall be effective only upon, and shall be conditional upon, the
closing of the Offer and only to the extent necessary to tender or deposit to
the Offer).
2.8 Ownership of Outstanding Shares. Without the prior approval of the
Corporation and the prior approval of the holders of the Exchangeable Shares
given in accordance with Section 10.1
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of the Exchangeable Share Provisions, ParentCo covenants and agrees in favour of
the Corporation that, as long as any outstanding Exchangeable Shares are owned
by any person or entity other than ParentCo or any of its Subsidiaries, and for
so long as any holders of rights to acquire ParentCo Common Shares pursuant to
the Employee Share Option Plan, the Convertible Debenture Options and the
Warrants remain outstanding ParentCo will be and remain the direct or indirect
beneficial owner of securities of the Corporation carrying or entitled to not
less than 51% of the voting rights for the election of directors, in each case
other than the Exchangeable Shares. Notwithstanding the foregoing sentence,
ParentCo shall not be in violation of this section 2.8 if any person or group of
persons acquires ParentCo Common Shares pursuant to any merger of ParentCo in
which ParentCo was not the surviving corporation.
2.9 ParentCo Not to Vote Exchangeable Shares. ParentCo covenants and agrees that
it will appoint and cause to be appointed proxy holders with respect to all
Exchangeable Shares held by ParentCo and its Subsidiaries for the sole purpose
of attending each meeting of holders of Exchangeable Shares in order to be
counted as part of the quorum for each such meeting. ParentCo further covenants
and agrees that it will not, and will cause its Subsidiaries not to, exercise
any voting rights which may be exercisable by holders of Exchangeable Shares
from time to time pursuant to the Exchangeable Share Provisions or pursuant to
the provisions of the Act with respect to any Exchangeable Shares held by it or
by its Subsidiaries in respect of any matter considered at any meeting of
holders of Exchangeable Shares.
2.10 Due Performance. On and after the Effective Date, ParentCo shall duly and
timely perform all of its obligations under the Reorganization Agreement and
related agreements in respect of the Reorganization, including any obligations
that may arise upon the exercise of ParentCo's rights under the Exchangeable
Share Provisions.
ARTICLE 3
CERTAIN RIGHTS OF PARENTCO TO ACQUIRE EXCHANGEABLE SHARES
3.1 ParentCo Liquidation Call Right.
(a) ParentCo shall have the overriding right (the "Liquidation Call
Right"), in the event of and notwithstanding the proposed liquidation,
dissolution or winding-up of the Corporation as referred to in Article
5 of the Exchangeable Share Provisions, to purchase from all, but not
less than all, of the holders of Exchangeable Shares on the Liquidation
Date all but not less than all of the Exchangeable Shares held by each
such holder on delivery by ParentCo to each holder of the Exchangeable
Share Price applicable on the last Business Day prior to the
Liquidation Date (the "Liquidation Call Purchase Price"), which as
provided in this section 3.1, shall be fully paid and satisfied by the
delivery by or on behalf of ParentCo of the Exchangeable Share
Consideration representing the Liquidation Call Purchase Price. In the
event of the exercise of the Liquidation Call Right by ParentCo, it is
intended that each holder shall be obligated to sell all the
Exchangeable Shares held by the holder to ParentCo on the Liquidation
Date on payment by ParentCo to the holder of the Exchange Share
Consideration representing the Liquidation Call Purchase Price for each
such share, as provided in section 5.4 of the
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Exchangeable Share Provisions. The Corporation agrees, for the benefit
of ParentCo, to enforce against the holders of Exchangeable Shares the
provisions of section 5.4 of the Exchangeable Share Provisions to such
effect.
(b) To exercise the Liquidation Call Right, ParentCo must notify the
Corporation of Parentco's intention to exercise such right at least 60
days before the Liquidation Date in the case of a voluntary
liquidation, dissolution or winding-up of the Corporation and at least
five Business Days before the Liquidation Date in the case of an
involuntary liquidation, dissolution or winding-up of the Corporation.
The Corporation will notify the holders of Exchangeable Shares as to
whether or not ParentCo has exercised the Liquidation Call Right
forthwith after the expiry of the date by which the same may be
exercised by ParentCo. If ParentCo exercises the Liquidation Call
Right, on the Liquidation Date, ParentCo will purchase all of the
Exchangeable Shares then outstanding for the Exchangeable Share
Consideration representing the total Liquidation Call Purchase Price.
(c) For the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Liquidation Call Right, ParentCo shall deposit with the
Corporation, on or before the Liquidation Date, the Exchangeable Share
Consideration for all of the Exchangeable Shares. Provided that such
Exchangeable Share Consideration has been so deposited with the
Corporation, on and after the Liquidation Date the right of each holder
of Exchangeable Shares will be limited to receiving such holder's
proportionate share of such Exchangeable Share Consideration
representing the total Liquidation Call Purchase Price payable by
ParentCo without interest upon presentation and surrender by the holder
of certificates representing the Exchangeable Shares held by such
holder and the holder shall on and after the Liquidation Date be
considered and deemed for all purposes to be the holder of the ParentCo
Common Share delivered to it. Upon surrender to the Corporation of a
certificate or certificates representing the Exchangeable Shares,
together with such other documents and instruments as may be required
to effect a transfer of Exchangeable Shares under the CBCA and the
by-laws of the Corporation and such additional documents and
instruments as the Corporation may reasonably require, the holder of
such surrendered certificate or certificates shall be entitled to
receive in exchange therefor, and the Corporation on behalf of ParentCo
shall deliver to such holder, the Exchangeable Share Consideration to
which the holder is entitled. If ParentCo does not exercise the
Liquidation Call Right in the manner described above, on the
Liquidation Date the holders of the Exchangeable Shares will be
entitled to receive in exchange therefor the Exchangeable Share
Consideration representing the Liquidation Amount otherwise payable by
the Corporation in connection with the liquidation, dissolution or
winding-up of the Corporation pursuant to Article 5 of the Exchangeable
Share Provisions. Notwithstanding the foregoing, until such
Exchangeable Share Consideration is delivered to the holder, the holder
shall be deemed to still be a holder of Exchangeable Shares for
purposes of all voting rights with respect thereto under the Voting and
Exchange Trust Agreement.
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3.2 ParentCo Redemption Call Right.
(a) ParentCo shall have the overriding right ( the "Redemption Call
Right"), notwithstanding the proposed redemption of the Exchangeable
Shares by the Corporation pursuant to Article 7 of the Exchangeable
Share Provisions, to purchase from all, but not less than all, of the
holders of Exchangeable Shares on the Automatic Redemption Date all but
not less than all of the Exchangeable Shares held by each such holder,
other than any Subsidiary of ParentCo, on payment by ParentCo to the
holder of the Exchangeable Share Price applicable on the last Business
Day prior to the Automatic Redemption Date (the "Redemption Call
Purchase Price"), which as provided in this section 3.2, shall be fully
paid and satisfied by the delivery by or on behalf of ParentCo of the
Exchangeable Share Consideration representing the Redemption Call
Purchase Price. In the event of the exercise of the Redemption Call
Right by ParentCo, it is intended that each holder shall be obligated
to sell all the Exchangeable Shares held by the holder to ParentCo on
the Automatic Redemption Date on payment by ParentCo to the holder of
the Exchangeable Share Consideration representing the Redemption Call
Purchase Price for each such share as provided in section 7.4 of the
Exchangeable Share Provisions. The Corporation agrees, for the benefit
of ParentCo, to enforce against the holders of Exchangeable Shares the
provisions of section 7.4 of the Exchangeable Share Provisions to such
effect.
(b) To exercise the Redemption Call Right, ParentCo must notify the
Corporation of ParentCo's intention to exercise such right at least 60
days before the Automatic Redemption Date. The Corporation will notify
the holders of the Exchangeable Shares as to whether or not ParentCo
has exercised the Redemption Call Right forthwith after the date by
which the same may be exercised by ParentCo. If ParentCo exercises the
Redemption Call Right, on the Automatic Redemption Date, ParentCo will
purchase all of the Exchangeable Shares then outstanding for the
Exchangeable Share Consideration representing the total Redemption Call
Purchase Price.
(c) For the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Redemption Call Right, ParentCo shall deposit with the
Corporation, on or before the Automatic Redemption Date, the
Exchangeable Share Consideration for all the then outstanding
Exchangeable Shares representing the total Redemption Call Purchase
Price. Provided that such Exchangeable Share Consideration has been so
deposited with the Corporation, on and after the Automatic Redemption
Date the rights of each holder of Exchangeable Shares will be limited
to receiving such holder's proportionate share of the Exchangeable
Share Consideration representing the total Redemption Call Purchase
Price payable by ParentCo upon presentation and surrender by the holder
of certificates representing the Exchangeable Shares held by such
holder and the holder shall on and after the Automatic Redemption Date
be considered and deemed for all purposes to be the holder of the
Exchangeable Share Consisderation delivered to such holder. Upon
surrender to the Corporation of a certificate or certificates
representing Exchangeable Shares, together with such other documents
and instruments as may be required to effect a transfer of Exchangeable
Shares under the CBCA and the by-laws of the Corporation
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and such additional documents and instruments as the Corporation may
reasonably require, the holder of such surrendered certificate or
certificates shall be entitled to receive in exchange therefor, and the
Corporation shall deliver to such holder, the Exchangeable Share
Consideration to which the holder is entitled. If ParentCo does not
exercise the Redemption Call Right in the manner described above, on
the Automatic Redemption Date, the holders of the Exchangeable Shares
will be entitled to receive in exchange therefor the Exchangeable Share
Consideration representing the Redemption Price otherwise payable by
the Corporation in connection with the redemption of the Exchangeable
Shares pursuant to Article 7 of the Exchangeable Share Provisions.
Notwithstanding the foregoing, until such Exchangeable Share
Consideration is delivered to the holder, the holder shall be deemed to
still be a holder of Exchangeable Shares for purposes of all voting
rights with respect thereto under the Voting and Exchange Trust
Agreement.
3.3 Exchange Put Right. Upon and subject to the terms and conditions contained
in the Exchangeable Share Provisions and the Voting and Exchange Trust
Agreement:
(a) a holder of Exchangeable Shares shall have the right (the "Exchange Put
Right") at any time to require ParentCo to purchase all or any part of
the Exchangeable Shares of the holder; and
(a) upon the exercise by the holder of the Exchange Put Right, it is
intended that the holder shall be required to sell to ParentCo, and
ParentCo shall be required to purchase from the holder, that number of
Exchangeable Shares in respect of which the Exchange Put Right is
exercised, in consideration of the payment by ParentCo of the
Exchangeable Share Price for each Exchangeable Share in respect of
which the Exchange Put Right has been exercised by such holder. The
Corporation agrees, for the benefit of ParentCo, to enforce against the
holders of Exchangeable Shares the provisions of section 8.1 of the
Exchangeable Share Provisions to such effect.
3.4 ParentCo shall have the unqualified right, at any time and from time to
time, to assign any or all of its rights under this Article 3 to any Canadian
Subsidiary of ParentCo (other than the Corporation), and if any such assignment
is made, such Canadian Subsidiary may exercise all of ParentCo's rights
hereunder and perform all of ParentCo's obligations hereunder arising from the
exercise of such rights as fully as ParentCo might; provided, however, that
nothing herein shall affect in any way the obligation of ParentCo, which
obligation shall be absolute and continuing notwithstanding any such assignment,
to provide ParentCo Common Shares, in the amounts and at times required
hereunder, in order to permit such Canadian Subsidiary to exercise ParentCo's
rights and to perform ParentCo's obligations hereunder. ParentCo hereby, as
primary obligor, unconditionally and irrevocably guarantees the prompt and
complete payment and performance, as and when due, by any such Canadian
Subsidiary of any obligations of ParentCo arising from any such assignment that
may be made by ParentCo hereunder.
ARTICLE 4
GENERAL
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4.1 Term. This agreement shall come into force and be effective as of the date
hereof and shall terminate and be of no further force and effect at such time as
no Exchangeable Shares (or securities or rights convertible into or exchangeable
for or carrying rights to acquire Exchangeable Shares) are held by any party
other than ParentCo and any of its Subsidiaries.
4.2 Changes in Capital of ParentCo and the Corporation. Notwithstanding the
provisions of section 4.4 hereof, at all times after the occurrence of any event
effected pursuant to Section 2.6 or 2.7 hereof, as a result of which either
ParentCo Common Shares or the Exchangeable Shares or both are in any way
changed, this agreement shall forthwith be amended and modified as necessary in
order that it shall apply with full force and effect, mutatis mutandis, to all
new securities into which ParentCo Common Shares or the Exchangeable Shares or
both are so changed, and the parties hereto shall execute and deliver an
agreement in writing giving effect to and evidencing such necessary amendments
and modifications.
4.3 Severability. If any provision of this agreement is held to be invalid,
illegal or unenforceable, the validity, legality or enforceability of the
remainder of this agreement shall not in any way be affected or impaired thereby
and this agreement shall be carried out as nearly as possible in accordance with
its original terms and conditions.
4.4 Amendments, Modifications, Etc. This agreement may not be amended or
modified except by an agreement in writing executed by the Corporation and
ParentCo and approved by the holders of the Exchangeable Shares in accordance
with Section 10.1 of the Exchangeable Share Provisions.
4.5 Ministerial Amendments. Notwithstanding the provisions of Section 4.4
hereof, the parties to this agreement may in writing, at any time and from time
to time, without the approval of the holders of the Exchangeable Shares, amend
or modify this agreement for the purposes of:
(a) adding to the covenants of either or both parties for the protection of
the holders of the Exchangeable Shares;
(b) making such amendments or modifications not inconsistent with this
agreement as may be necessary or desirable with respect to matters or
questions which, in the opinion of the board of directors of each of
the Corporation and ParentCo, it may be expedient to make, provided
that each such board of directors shall be of the opinion that such
amendments or modifications will not be prejudicial to the interests of
the holders of the Exchangeable Shares; or
(c) making such changes or corrections which, on the advice of counsel to
the Corporation and ParentCo, are required for the purpose of curing or
correcting any ambiguity or defect or inconsistent provision or
clerical omission or mistake or manifest error; provided that the
boards of directors of each of the Corporation and ParentCo shall be of
the opinion that such changes or corrections will not be prejudicial to
the interests of the holders of the Exchangeable Shares.
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4.6 Meeting to Consider Amendments. The Corporation, at the request of ParentCo,
shall call a meeting or meetings of the holders of the Exchangeable Shares for
the purpose of considering any proposed amendment or modification requiring
approval of such shareholders. Any such meeting or meetings shall be called and
held in accordance with the by-laws of the Corporation, the Exchangeable Share
Provisions and all applicable laws.
4.7 Amendments Only in Writing. No amendment to or modification or waiver of any
of the provisions of this agreement otherwise permitted hereunder shall be
effective unless made in writing and signed by both of the parties hereto.
4.8 Enurement. This agreement shall be binding upon and enure to the benefit of
the parties hereto and the holders, from time to time, of Exchangeable Shares
and each of their respective heirs, successors and assigns.
4.9 Notices to Parties. All notices and other communications between the parties
shall be in writing and shall be deemed to have been given if delivered
personally or by confirmed telecopy to the parties at the following addresses
(or at such other address for either such party as shall be specified in like
notice):
(a) if to ParentCo to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx
00000-0000
U. S. A.
Attn: Xxxxxx X. X'Xxxxxx
Senior Vice-President, General Counsel & Secretary
Fax: (000) 000-0000
Tel: (000) 000-0000
(b) if to the Corporation to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx
00000-0000
U. S. A.
Any notice or other communication given personally shall be deemed to have been
given and received upon delivery thereof and if given by telecopy shall be
deemed to have been given and
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received on the date of confirmed receipt thereof, unless such day is not a
Business Day, in which case it shall be deemed to have been given and received
upon the immediately following Business Day.
4.10 Counterparts. This agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which taken together shall constitute
one and the same instrument.
4.11 Jurisdiction. This agreement shall be construed and enforced in accordance
with the laws of the Province of
Ontario and the laws of Canada applicable therein.
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4.12 Attornment. ParentCo agrees that any action or proceeding arising out of or
relating to this agreement may be instituted in the courts of Ontario, waives
any objection which it may have now or hereafter to the venue of any such action
or proceeding, irrevocably submits to the jurisdiction of such courts in any
such action or proceeding, agrees to be bound by any judgment of such courts and
not to seek, and hereby waives, any review of the merits of any such judgment by
the courts of any other jurisdiction and hereby appoints the Corporation at its
registered office in the Province of Ontario as ParentCo's attorney for service
of process.
IN WITNESS WHEREOF, ParentCo and the Corporation have caused this
agreement to be signed by their respective officers thereunder duly authorized,
all as of the date first written above.
PHILSAR SEMICONDUCTOR INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: VP Finance / Administration
and CFO
CONEXANT SYSTEMS INC.
By: /s/ Xxxxxx X. X'Xxxxxx
-------------------------------
Name: Xxxxxx X. X'Xxxxxx
Title: Senior Vice President
General Counsel and
Secretary
