EXHIBIT 1
EXECUTION COPY
NATIONAL SEMICONDUCTOR CORPORATION
PLACEMENT AGREEMENT
September 21, 1995
Xxxxxx Xxxxxxx & Co.
Incorporated, for itself
and the other several
Purchasers named below
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
National Semiconductor Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to you (the "Manager") and the other several
purchasers named in Schedule I hereto (collectively with the Manager, the
"Purchasers") $225,000,000 principal amount of its 6 1/2% Convertible
Subordinated Notes due 2002 (the "Firm Offered Securities") to be issued
pursuant to the provisions of an Indenture dated as of September 15, 1995 (the
"Indenture") between the Company and The First National Bank of Boston, as
Trustee (the "Trustee").
The Company also proposes to issue and sell to Purchasers not more than an
additional $33,750,000 principal amount of its 6 1/2% Convertible Subordinated
Notes due 2002 (the "Additional Offered Securities") if and to the extent that
you, as Manager, shall have determined to exercise, on behalf of the Purchasers,
the right to purchase such 6 1/2% Convertible Subordinated Notes due 2002
granted to the Purchasers in Section 3 hereof. The Firm Offered Securities and
the Additional Offered Securities are hereinafter collectively referred to as
the "Offered Securities."
The Offered Securities will be convertible, on the terms and subject to the
conditions set forth in the Indenture and the Notes, into shares of Common
Stock, $0.50 par value of the Company together with the rights (the "Rights")
evidenced by such Common Stock to the extent provided in the Rights Agreement
dated as of
August 8, 1988, as to be amended pursuant to the Indenture (the "Rights
Agreement"), between the Company and The First National Bank of Boston (the
"Underlying Securities" and, together with the Offered Securities, the
"Securities").
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), in reliance on
exemptions therefrom.
In connection with the sale of the Offered Securities, the Company has
prepared a preliminary offering memorandum (the "Preliminary Memorandum") and
will prepare a final private placement memorandum (the "Final Memorandum" and,
with the Preliminary Memorandum, each a "Memorandum") setting forth or including
a description of the terms of the Securities, the terms of the offering, a
description of the Company and any material developments relating to the Company
occurring after the date of the most recent financial statements included
therein. As used herein, the term "Memorandum" shall include in each case the
documents incorporated by reference therein. The terms "supplement",
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Preliminary Memorandum or Final Memorandum that
are filed subsequent to the date of such Memorandum with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, you that as of the date hereof:
(a) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in either Memorandum complied, or
will comply, when so filed in all material respects with the Exchange Act and
the applicable rules and regulations thereunder and (ii) the Preliminary
Memorandum does not contain and the Final Memorandum, in the form used by the
Purchasers to confirm sales prior to the Closing and on the Closing Date, will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this Section 1(a) do not apply to statements or
omissions in either Memorandum based upon information relating to any Purchaser
furnished to the Company in writing by such Purchaser through you expressly for
use therein.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
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corporate power and authority to own its property and to conduct its business as
described in each Memorandum and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(c) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in each Memorandum and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Except as disclosed in the Memorandum, the Company owns or leases
all such properties as are necessary to its operations as now conducted, or as
proposed to be conducted, in each case as discussed in or contemplated by either
Memorandum.
(e) The authorized capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained in the
Final Memorandum.
(f) The shares of Common Stock outstanding prior to the issuance of
the Offered Securities to be sold by the Company have been duly authorized and
are validly issued, fully paid and non-assessable.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The Offered Securities have been duly authorized and, when
executed, authenticated and delivered to and paid for by the Purchasers in
accordance with the terms of this Agreement, will (x) be validly issued, fully
paid and nonassessable and will not be subject to any preemptive or similar
rights, (y) be valid and binding obligations of the Company enforceable in
accordance with their terms, except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable
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principles of general applicability and (z) be entitled to the benefits of the
Indenture pursuant to which such Securities are to be issued.
(i) (1) The Underlying Securities reserved for issuance upon
conversion of the Offered Securities have been duly authorized and reserved and,
when issued upon conversion of such Offered Securities in accordance with the
terms of such Offered Securities, will be validly issued, fully paid and non-
assessable and will not be subject to any preemptive rights or similar rights;
(2) the Rights, if any, issuable upon conversion of the Offered Securities have
been duly authorized by all required corporate action and, when and if issued
upon conversion of the Offered Securities in accordance with the terms of the
Indenture and the Rights Agreement, will have been validly issued.
(j) Each of the Indenture pursuant to which the Offered Securities
are to be issued and the Registration Rights Agreement dated as of September 21,
1995 among the Company and the Purchasers (the "Registration Rights Agreement")
has been duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms except (x)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (y) rights of acceleration, if
applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(k) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Registration Rights Agreement and the Offered Securities will not contravene any
provision of applicable law or the certificate of incorporation or by-laws of
the Company or any agreement or other instrument binding upon the Company or any
of its subsidiaries that is material to the Company and its subsidiaries, taken
as a whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture, the Registration Rights Agreement or the
Offered Securities, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Securities.
(l) There has not occurred any material adverse change, or any
development that is likely to result in a material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and
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its subsidiaries, taken as a whole, from that set forth in the Preliminary
Memorandum or Final Memorandum.
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
other than proceedings accurately described in all material respects in each
Memorandum and proceedings that are not likely to result in a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on the power or
ability of the Company to perform its obligations under this Agreement, the
Indenture, the Registration Rights Agreement or the Offered Securities.
(n) Each of the Company and its subsidiaries has all necessary
consents, approvals, orders, certificates and permits of and from, and has made
all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, which are necessary to own, lease, license and use its
properties and assets and to conduct its business in the manner described in the
Final Memorandum, except to the extent that the failure to obtain, declare or
file would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act, an "Affiliate") of the Company has
directly, or through any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the Offered
Securities in a manner that would require the registration under the Securities
Act of the Offered Securities or (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of the
Offered Securities (as those terms are used in Regulation D under the Securities
Act), or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(p) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(q) It is not necessary in connection with the offer, sale and
delivery of the Offered Securities to the Purchasers in the manner contemplated
by this Agreement to register the Offered Securities under the Securities Act or
to qualify the Indenture under the Trust Indenture Act of 1939, as amended.
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(r) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(s) The Company and each of its subsidiaries owns or possesses or has
adequate licenses or rights to use all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, mask works, approvals, governmental
authorizations and trade names necessary (in any material respect) to the
conduct of the business as now operated by them, except such as are not material
to the business of the Company and its subsidiaries taken as a whole. The
Company or any of its subsidiaries has no knowledge of any material infringement
by it of trademarks, trade name rights, patent rights, mask works, copyrights,
licenses, trade secrets or similar rights of others and neither the Company or
any of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing which, in
either case, singly or in the aggregate, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole, and except those which have
been resolved through a licensing or other similar arrangement which, singularly
or in the aggregate, did not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(t) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(u) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded
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accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(v) No material labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the best knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could result in any material adverse change in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole.
(w) None of the Company, its Affiliates or any person acting on its
or their behalf (other than the Purchasers) has engaged in any directed selling
efforts (as that term is defined in Regulation S under the Securities Act
("Regulation S") with respect to the Offered Securities and the Company and its
Affiliates and any person acting on its or their behalf (other than the
Purchasers) has complied with the offering restrictions requirement of
Regulation S.
(x) The Offered Securities satisfy the requirements set forth in
Rule 144A(d) (3) under the Securities Act.
2. OFFERING. You have advised the Company that the Purchasers will make
an offering of the Offered Securities purchased by the Purchasers hereunder on
the terms to be set forth in the Final Memorandum, as soon as practicable after
this Agreement is entered into as in your judgment is advisable.
3. PURCHASE AND DELIVERY. The Company hereby agrees to sell to the
several Purchasers, and the Purchasers, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree, severally and not jointly, to purchase from the Company the
respective principal amount of Offered Securities set forth in Schedule I hereto
opposite their names at a purchase price of 98.0% of the principal amount
thereof plus accrued interest, if any, from September 27, 1995 to the date of
payment and delivery.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Purchasers the Additional Offered Securities, and the Purchasers shall
have a one-time right to purchase, severally and not jointly, up to $33,750,000
Additional Offered Securities at a purchase price of 98.0% of the principal
amount thereof plus accrued interest, if any, from September 27, 1995 to the
date of payment and
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delivery. Additional Offered Securities may be purchased as provided in this
Section 3 solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Offered Securities. If any Additional Offered
Securities are to be purchased, each Purchaser agrees, severally and not
jointly, to purchase the number of Additional Offered Securities (subject to
such adjustments to eliminate fractional shares as the Manager shall determine)
that bears the same proportion to the total number of Additional Offered
Securities to be purchased as the number of Firm Offered Securities set forth in
Schedule I opposite the name of such Purchaser bears to the total number of Firm
Offered Securities.
The Company agrees that without your prior written consent, it will not
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or enter into any swap or similar agreement that
transfers, in whole or in part, the economic risk of ownership of the Common
Stock for a period of 90 days after the date of this Agreement, other than (i)
the Offered Securities to be sold hereunder, (ii) the Underlying Securities,
(iii) options to purchase shares of Common Stock, shares of Common Stock issued
by the Company upon the exercise of such options and shares of Common Stock
issuable under the Company' s existing employee benefit plans, (iv) Common Stock
issuable upon redemption of the $40.00 Convertible Exchangeable Preferred
Shares, and (v) purchases of Common Stock pursuant to the Company's existing
stock purchase program. The Company agrees to give notice to its directors and
executive officers promptly following the date hereof (but in no event later
than the Closing Date) of the restrictions imposed by the Board of Directors of
the Company pursuant to the minutes referred to in Section 4(f) below. The
Company will use its best efforts to ensure that all of its directors and
executive officers comply with the restrictions set forth in such minutes.
Payment for the Firm Offered Securities shall be made against delivery of
the Firm Offered Securities at a closing to be held at the office of Wilson,
Sonsini, Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 at
10:00 A.M., New York City time, on September 27, 1995, or at such other time on
the same or such other date, not later than October 4, 1995, as shall be
designated in writing by you. The time and date of such payment are herein
referred to as the Closing Date. Payment for the Firm Offered Securities shall
be made by certified or official bank check or checks payable to the order of
the Company in New York Clearing House Funds.
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Payment for any Additional Offered Securities shall be made against
delivery of the Additional Offered Securities at a closing to be held at the
office of Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Palo Alto, California at 10:00
A.M., New York City time, on such date (which may be the same as the Closing
Date but shall in no event be earlier than the Closing Date nor later than ten
(10) business days after the giving of the notice hereinafter referred to) as
shall be designated in a written notice from the Manager to the Company of its
determination, on behalf of the Purchasers, to purchase a number, specified in
said notice, of Additional Offered Securities, or on such other date, in any
event not later than November 4, 1995 as shall be designated in writing by the
Manager. The time and date of such payment are hereinafter referred to as the
Option Closing Date. Payment for the Additional Offered Securities shall be
made by certified or official bank check or checks payable to the order of the
Company in New York Clearing House funds. The notice of the determination to
exercise the option to purchase Additional Offered Securities and of the Option
Closing Date may be given at any time within 30 days after the date of this
Agreement.
Certificates for the Offered Securities shall be in definitive form or
global form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not less than two full business
days prior to the Closing Date or the Option Closing Date, as the case may be.
The certificates evidencing the Offered Securities shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Purchasers, with any transfer taxes payable
in connection with the transfer of the Offered Securities to the Purchasers duly
paid, against payment of the purchase price therefor.
4. CONDITIONS TO CLOSING. The several obligations of the Purchasers
under this Agreement to purchase the Firm Offered Securities will be subject to
the accuracy of the representations and warranties on the part of the Company
herein, to the performance and observance by the Company of all the covenants
and agreements herein contained on its part to be performed and observed and the
following conditions:
(a) Subsequent to the date of this Agreement and prior to the Closing
Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible
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change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g) (2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations, of the Company and its subsidiaries, taken
as a whole, from that set forth in the Final Memorandum that, in your judgment,
is material and adverse and that makes it, in your judgment, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the
Final Memorandum.
(b) You shall have received on the Closing Date a certificate of the
Company, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in clause (a) (i) above and to the effect that
the representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of Xxxxxx
& Xxxxxxx, independent counsel for the Company, dated the Closing Date,
substantially to the effect set forth in EXHIBIT A.
(d) You shall have received on the Closing Date an opinion of Xxxx X.
Xxxxx III, Senior Vice President, General Counsel and Secretary of the Company,
substantially to the effect set forth in EXHIBIT B.
(e) You shall have received on the Closing Date an opinion of Wilson,
Sonsini, Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the
Purchasers, dated the Closing Date, to the effect set forth in EXHIBIT C.
(f) You shall have received on the Closing Date a copy of minutes of
a meeting of the Board of Directors of the Company, certified by the Secretary
or an Assistant Secretary of the Company, approving, among other things,
restrictions providing that the directors and executive officers of the Company
will not, directly or indirectly, for a period of 90 days after the date of this
Agreement, without your
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prior written consent offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or enter into any swap or similar
agreement that transfers, in whole or in part, the economic risk of ownership of
the Common Stock.
(g) You shall have received on each of the dates hereof and the
Closing Date a letter, dated the date hereof or the Closing Date, in form and
substance satisfactory to you, from the Company's independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into each Memorandum.
(h) The Company shall have complied with the provisions of
Section 5(a) hereof with respect to the furnishing of the Final Memorandum on
the business day next succeeding the date of this Agreement, in such quantities
as you reasonably request.
The Purchasers' obligation to purchase Additional Offered Securities
hereunder is subject to the delivery to you on the Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Offered Securities
and other matters related to the issuance of the Additional Offered Securities.
5. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Purchasers contained in this Agreement, the Company covenants as follows:
(a) To furnish to you, without charge, during the period mentioned in
paragraph (c) below, as many copies of the Final Memorandum, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request and, in the case of the Final Memorandum, to furnish
copies of the Final Memorandum in New York City, prior to 5:00 p.m. on the
business day following the date of this Agreement, in such quantities as you
reasonably request.
(b) Before amending or supplementing either Memorandum, to furnish to
you a copy of each such proposed amendment or supplement and not to use any such
proposed amendment or supplement to which you reasonably object.
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(c) If, during such period after the date hereof and prior to the
date on which all of the Offered Securities shall have been sold by the
Purchasers, any event shall occur or condition exist as a result of which it is
necessary in your judgment to amend or supplement the Final Memorandum in order
to make the statements therein, in the light of the circumstances when such
Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of
counsel to the Purchasers it is necessary to amend or supplement such Memorandum
to comply with applicable law, forthwith to prepare and furnish, at its own
expense, to the Purchasers, either amendments or supplements to such Memorandum
so that the statements in such Memorandum as so amended or supplemented will
not, in the light of the circumstances when such Memorandum is delivered to a
purchaser, be misleading or so that such Memorandum, as so amended or
supplemented, will comply with applicable law; provided that the Company shall
not be required to make any such amendment or supplement on or after June 27,
1996 unless a Purchaser requests such an amendment or supplement be made, in
which case such amendment or supplement shall be made and the Purchaser or
Purchasers requesting such amendment or supplement shall pay the reasonable
costs and expenses of the Company in making such amendment or supplement.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) Whether or not any sale of such Offered Securities is
consummated, to pay all expenses incident to the performance of its obligations
under this Agreement, including: (i) the preparation of each Memorandum and all
amendments and supplements thereto, (ii) the preparation, issuance and delivery
of the Securities, (iii) the reasonable fees and disbursements of the Company's
counsel and accountants and the Trustee and its counsel, (iv) the qualification
of such Securities under securities or Blue Sky laws in accordance with the
provisions of Section 5(d), including filing fees and the fees and disbursements
of counsel for the Purchasers in connection therewith and in connection with the
preparation of any Blue Sky or legal investment memoranda, (v) the printing and
delivery to the Purchasers in quantities as hereinabove stated of copies of the
Memorandum and any amendments or supplements thereto, (vi) any fees charged by
rating agencies for the rating of such Securities, and (vii) the fees and
expenses, if any, incurred in connection with the admission of such Securities
for trading in any appropriate market system.
(f) Neither the Company nor any Affiliate will sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security (as
defined in the
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Securities Act) which could be integrated with the sale of the Offered
Securities in a manner which would require the registration under the Securities
Act of such Securities.
(g) Not to solicit any offer to buy or offer or sell the Offered
Securities by means of any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(h) While any of the Securities remain "restricted securities" within
the meaning of the Securities Act, to make available, upon request, to any
seller of such Securities the information specified in Rule 144A(d) (4) under
the Securities Act, unless the Company is then subject to Section 13 or 15(d) of
the Exchange Act.
(i) To include information substantially in the form set forth in
Exhibit C in each Memorandum.
(j) To use its best efforts to permit the Offered Securities to be
designated PORTAL securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. relating to
trading in the PORTAL Market.
(k) None of the Company, its Affiliates or any person acting on its
or their behalf (other than the Purchasers) will engage in any directed selling
efforts (as that term is defined in Regulation S) with respect to the Offered
Securities, and the Company and its Affiliates and each person acting on its or
their behalf (other than the Purchasers) will comply with the offering
restrictions of Regulation S.
(l) The Company will not resell any of the Securities.
6. OFFERING OF SECURITIES; RESTRICTIONS ON TRANSFER.
(a) Each Purchaser, severally and not jointly, represents and
warrants that such Purchaser is a qualified institutional buyer as defined in
Rule 144A under the Securities Act (a "QIB"). Each Purchaser, severally and not
jointly, agrees with the Company that (a) it will not solicit offers for, or
offer to sell, such Offered Securities by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act and (b) it will solicit offers for such
Offered Securities only from, and will offer such Offered
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Securities only to, persons that it reasonably believes (A) in the case of
offers inside the United States, (i) to be QIBs or (ii) to be institutional
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act ("institutional accredited investors") that, prior to their
purchase of the Offered Securities, deliver to such Purchaser a letter
containing the representations and agreements set forth in Annex A to the
Memorandum and (B) in the case of offers outside the United States, to be
persons other than U.S. persons ("foreign purchasers," which term shall include
dealers or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate or
trust)) that, in each case, in purchasing such Offered Securities are deemed to
have represented and agreed as provided in Exhibit D.
(b) Each Purchaser, severally and not jointly, represents, warrants,
and agrees with respect to offers and sales outside the United States that:
(i) it understands that no action has been or will be taken in
any jurisdiction by such Purchaser that would permit a public offering of
the Offered Securities, or possession or distribution of either Memorandum
or any other offering or publicity material relating to the Offered
Securities, in any country or jurisdiction where action for that purpose is
required;
(ii) such Purchaser will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Offered Securities or has in its possession or distributes either
Memorandum or any such other material, in all cases at its own expense;
(iii) the Offered Securities have not been and will not be
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 under the Securities Act or pursuant
to another exemption from the registration requirements of the Securities
Act;
(iv) such Purchaser has offered the Offered Securities and will
offer and sell the Offered Securities (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the Offering and the Closing Date, only in accordance with
Rule 903 of Regulation S. Accordingly, neither such Purchaser, its
Affiliates nor any persons acting on its or their behalf have engaged or
will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Offered Securities, and any such
Purchaser, its Affiliates and any such persons have
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complied and will comply with the offering restrictions requirement of
Regulation S;
(v) such Purchaser has (1) not offered or sold and 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 required 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 (the "Regulations"); (2) complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 and the Regulations with
respect to anything done by it in relation to the Offered Securities in,
from or otherwise involving the United Kingdom; and (3) only issued or
passed on and will only issue or pass on to any person in the United
Kingdom any document received by it in connection with the issue of the
Offered Securities if that person is of a kind described in Article 11(d)
of the Financial Services Xxx 0000 (Investment Advertisements) (Exemptions)
Order 1995 or is a person to whom such document may otherwise lawfully be
issued or passed on.
(vi) such Purchaser understands that the Offered Securities have
not been and will not be registered under the Securities and Exchange Law
of Japan, and represents that it has not offered or sold, and agrees that
it will not offer or sell, any Offered Securities, directly or indirectly
in Japan or to or from any resident of Japan except (i) pursuant to an
exemption from the registration requirements of the Securities and Exchange
Law of Japan and (ii) in compliance with any other applicable requirements
of Japanese law; and
(vii) such Purchaser agrees that, at or prior to confirmation of
sales of the Offered Securities, it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration
that purchases Offered Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering and the closing date, except in either case in accordance
with Regulation S (or
-15-
Rule 144A if available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S.
Terms used in this Section 6 have the meanings given to them by Regulation S.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Purchaser,
and each person, if any, who controls such Purchaser within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, or is
under common control with, or is controlled by, such Purchaser, from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by any Purchaser or
any such controlling of affiliated person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in either Memorandum (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Purchaser furnished to the Company in writing by
such Purchaser through you expressly for use therein.
(b) Each Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Purchaser, but only with reference
to information relating to such Purchaser furnished to the Company in writing by
such Purchaser through you expressly for use in either Memorandum or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the
-16-
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated in the case
of parties indemnified pursuant to paragraph (a) above and by the Company in the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding 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 claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 7 is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result
-17-
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Purchasers on the other hand from the offering of such 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 Company on the one hand and the Purchasers on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchasers on the other hand in connection with the offering of such
Offered Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total discounts and commissions
received by the Purchasers in respect thereof, in each case as set forth in the
Final Memorandum, bear to the aggregate offering price of such Offered
Securities. The relative fault of the Company on the one hand and of the
Purchasers on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Purchasers' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective principal
amount of Offered Securities they have purchased hereunder, and not joint.
(e) The Company and the Purchasers agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by PRO
RATA allocation (even if the Purchasers were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Purchaser shall be required to contribute any amount in excess of
the amount by which the total price at which the Offered Securities resold by it
in the initial placement of such Offered Securities were offered to investors
exceeds the amount of any damages that such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
-18-
contribution from any person who was not guilty of such fraudulent
misrepresentation. The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Purchasers or any person controlling the Purchasers or by or on
behalf of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
8. TERMINATION. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date or the Option Closing Date, as the case
may be, (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and (b) in the case of any of the events specified in clauses (a)
(i) through (iv), such event singly or together with any other such event makes
it, in your judgment, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Final Memorandum.
9. MISCELLANEOUS. If, on the Closing Date, or the Option Closing Date,
as the case may be, any one or more of the Purchasers shall fail or refuse to
purchase Offered Securities that it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Offered Securities which such
defaulting Purchaser or Purchasers agreed but failed or refused to purchase is
not more than one-tenth of the aggregate principal amount of Offered Securities
to be purchased on such date, the other Purchasers shall be obligated severally
in the proportions that the principal amount of Firm Offered Securities set
forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Firm Offered Securities set forth opposite the names of all
such non-defaulting Purchasers, or in such other proportions as you may specify,
to purchase the Offered Securities which such defaulting Purchaser or Purchasers
agreed but failed or refused to purchase on such
-19-
date; PROVIDED that in no event shall the principal amount of Offered Securities
that any Purchaser has agreed to purchase pursuant to Section 3 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Offered Securities without the written consent of such Purchaser. If,
on the Closing Date or the Option Closing Date, as the case may be, any
Purchaser or Purchasers shall fail or refuse to purchase Offered Securities
which it or they have agreed to purchase hereunder on such date and the
aggregate principal amount of Offered Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Offered Securities to be purchased on such date and arrangements satisfactory to
you and the Company for the purchase of such Offered Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Purchaser or of the Company. In any
such case either you or the Company shall have the right to postpone the Closing
Date, or the Option Closing Date, as the case may be, but in no event for longer
than seven days, in order that the required changes, if any, in the Final
Memorandum or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Purchaser
from liability in respect of any default of such Purchaser under this Agreement.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
If this Agreement shall be terminated by the Purchasers, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Purchasers or such Purchasers as have
so terminated this Agreement with respect to themselves, severally, for all out-
of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Purchasers in connection with this Agreement or the
offering contemplated hereunder.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
-20-
Please confirm your agreement to the foregoing by signing in the space
provided below for that purpose and returning to us a copy hereof, whereupon
this Agreement shall constitute a binding agreement between us.
Very truly yours,
NATIONAL SEMICONDUCTOR
CORPORATION
By /s/ Xxxxxx Xxxxxxx
----------------------------------
Agreed, September 21, 1995
Xxxxxx Xxxxxxx & Co.
Incorporated
Acting severally on behalf
of itself and the
several Purchasers named
herein.
By Xxxxxx Xxxxxxx & Co.
Incorporated
By
----------------------
Please confirm your agreement to the foregoing by signing in the space
provided below for that purpose and returning to us a copy hereof, whereupon
this Agreement shall constitute a binding agreement between us.
Very truly yours,
NATIONAL SEMICONDUCTOR
CORPORATION
By /s/ Xxxxxx Xxxxxxx
----------------------------------
Agreed, September 21, 1995
Xxxxxx Xxxxxxx & Co.
Incorporated
Acting severally on behalf
of itself and the
several Purchasers named
herein.
By Xxxxxx Xxxxxxx & Co.
Incorporated
By /s/ Xxxxxxx Xxxxxxxxx
----------------------------
SCHEDULE I
Principal Amount of
Firm Offered
Securities
Purchaser To Be Purchased
----------------------------------------------- ----------------------
Xxxxxx Xxxxxxx & Co. Incorporated $75,000,000
X.X. Xxxxxx Securities Inc. 75,000,000
Salomon Brothers Inc 75,000,000
------------
Total $225,000,000
------------
------------
EXHIBIT A
OPINION OF XXXXXX & XXXXXXX
The opinion of Xxxxxx & Xxxxxxx, counsel for the Company, to be delivered
pursuant to Section 4(c) of the Placement Agreement shall be to the effect that:
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Final Memorandum (references herein to the
Final Memorandum being taken to mean the same, as amended or supplemented).
2. The Placement Agreement has been duly authorized, executed and
delivered by the Company.
3. The Indenture, pursuant to which such securities are to be
issued, has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company enforceable in
accordance with its terms except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (y) rights of acceleration, if applicable, and the
availability of equitable remedies may be limited by equitable principles
of general applicability.
4. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company enforceable in accordance with its terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (y) rights of acceleration,
if applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability.
5. The Offered Securities have been duly authorized and, when
executed, authenticated and delivered to and paid for in accordance with
the terms of the Placement Agreement, will be validly issued and will not
be subject to any preemptive or similar rights (x) be valid and binding
obligations of the Company enforceable in accordance with their terms,
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights general and
(B) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (y) be entitled to the benefits of the Indenture pursuant
to which such Offered Securities are to be issued.
6. (1) The Underlying Securities reserved for issuance upon
conversion of the Offered Securities have been duly authorized and reserved
for issuance upon such conversion and, when issued upon conversion in
accordance with the terms of the Indenture, will have been validly issued,
fully paid and non-assessable, and there are no preemptive or, to such
counsel's knowledge, other rights to subscribe for or purchase any of the
Underlying Securities issuable upon conversion of the Offered Securities
pursuant to the Company's Certificate of Incorporation or Bylaws or, to the
knowledge of such counsel, any Reviewed Agreement (as defined below) and
(2) the Rights, if any, issuable upon conversion of the Offered Securities
have been duly authorized and, when, and if, issued upon conversion in
accordance with the terms of the Indenture and Rights Agreement, will have
been validly issued.
7. The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Placement Agreement, the
Indenture, the Registration Rights Agreement and the Offered Securities
will not contravene (i) any provision of applicable law, (ii) the
certificate of incorporation or by-laws of the Company, (iii) to such
counsel's knowledge, the material agreements set forth on a list to be
agreed upon (to cover material debt agreements) (the "Reviewed
Agreements"), or (iv) to such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company or its subsidiaries of their
obligations under the Placement Agreement, the Indenture, the Registration
Rights Agreement or the offered securities, except such as may be required
by the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Securities.
8. After due inquiry of officers of the Company, such counsel does
not know of any legal or governmental proceedings pending to which the
Company is a party or to which any of the properties of the Company is
subject other than proceedings that would not have a material adverse
effect on the power or ability of the Company to perform its obligations
under this Agreement, the Indenture, the Registration Rights Agreement, or
the Offered Securities or to consummate the transactions contemplated by
the Final Memorandum.
A-2
9. The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
10. The statements in the Final Memorandum under the captions
"Description of Notes," "Description of Capital Stock," "Certain Federal
Income Tax Considerations," "Plan of Distribution" and "Transfer
Restrictions" insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize in all material respects the matters
referred to therein.
11. Such counsel believes that (except for financial statements and
schedules and other statistical data as to which such counsel need not
express any belief) the Final Memorandum when issued did not, and as of the
date such opinion is delivered does not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
12. Based upon the representations, warranties and agreements of the
Company in Sections 1(o), 1(w), 5(g) 5(h) and 5(k) of the Placement
Agreement and of the Initial Purchasers (as defined in the Final
Memorandum) in Section 6 of the Placement Agreement and on the
representations and agreements contained in the Final Memorandum, it is not
necessary in connection with the offer, sale and delivery of the Offered
Securities to the Initial Purchasers under the Placement Agreement or in
connection with the initial resale of such Offered Securities by the
Initial Purchasers in accordance with Section 6 of the Placement Agreement
to register the Offered Securities or the Underlying Securities under the
Securities Act of 1933 or to qualify the Indenture under the Trust
Indenture Act of 1939, it being understood that no opinion is expressed as
to any subsequent resale of any Offered Security or Share.
With respect to paragraph 11 above, counsel may state that his opinion
and belief are based upon his participation in the preparation of the Final
Memorandum (and any amendments or supplements thereto) and documents
incorporated therein by reference and review and discussion of the contents
thereof, but are without independent check or verification except as specified.
A-3
EXHIBIT B
OPINION OF XXXX X. XXXXX III
The opinion of Xxxx X. Xxxxx III, counsel of the Company, to be delivered
pursuant to Section 4(d) of the Placement Agreement shall be to the effect that:
1. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries taken as
a whole.
2. Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Final
Memorandum and is duly qualified to transact its business as described in
the Final Memorandum and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
3. There are no preemptive or, to such counsel's knowledge, other
rights to subscribe for or purchase any of the Underlying Securities
issuable upon conversion of the Offered Securities pursuant to any material
agreement or other instrument binding on the Company.
4. The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Placement Agreement, the
Indenture, the Registration Rights Agreement and the Offered Securities
will not contravene to such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole.
5. The statements under the caption "Legal Proceedings" of the
Company's most recent annual report on Form 10-K and quarterly report on
Form 10-Q insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize in all material respects the matters
referred to therein.
6. After due inquiry of officers of the Company, such counsel does
not know of any legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject other than
proceedings fairly summarized in all material respects in each Memorandum
and proceedings that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, or on the power or ability
of the Company to perform its obligations under this Agreement, the
Indenture, the Registration Rights Agreement, or the Offered Securities or
to consummate the transactions contemplated by the Final Memorandum.
7. Such counsel is of the opinion that each document incorporated by
reference in the Final Memorandum (except for financial statements and
schedules and other statistical data included therein as to which such
counsel need not express any opinion), complied as to form when filed with
the Commission in all material respects with the Exchange Act and the rules
and regulations of the Commission thereunder.
8. Such counsel believes that (except for financial statements and
schedules and other statistical data as to which such counsel need not
express any belief) the Final Memorandum when issued did not, and as of the
date such opinion is delivered does not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
With respect to paragraph 8 above, counsel may state that his opinion and
belief are based upon his participation in the preparation of the Final
Memorandum (and any amendments or supplements thereto) and documents
incorporated therein by reference and review and discussion of the contents
thereof, but are without independent check or verification except as specified.
X-0
XXXXXXX X
XXXXXXX XX XXXXXX, XXXXXXX, XXXXXXXX & XXXXXX, X.X.
The opinion of Wilson, Sonsini, Xxxxxxxx & Xxxxxx, P.C. to be delivered
pursuant to Section 4(e) of the Placement Agreement shall be to the effect that:
1. The Placement Agreement has been duly authorized, executed and
delivered by the Company.
2. The Offered Securities have been duly authorized, and, when
executed, authenticated and delivered to and paid for in accordance with
the terms of the Placement Agreement, will (x) be valid and binding
obligations of the Company enforceable in accordance with their terms,
except as (A) the enforceability thereof may be limited by bankruptcy
insolvency or similar laws affecting creditors' rights general and
(B) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (y) be entitled to the benefits of the Indenture pursuant
to which such Offered Securities are to be issued.
3. The Underlying Securities reserved for issuance upon conversion
of the Offered Securities have been duly authorized and reserved and, when
executed and issued upon conversion of the Offered Securities in accordance
with the terms of the Offered Securities, will be validly issued, fully
paid and non-assessable and will not be subject to any preemptive or
similar rights.
4. The Indenture pursuant to which such Securities are to be issued
has been duly authorized, executed and delivered by, and is a valid and
binding agreement of, the Company, enforceable in accordance with its terms
except as (x) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(y) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
5. The statements in the Final Memorandum under the captions
"Description of Notes", "Plan of Distribution" and "Transfer Restrictions",
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein.
6. Such counsel believes that (except for financial statements and
schedules and other statistical data as to which such counsel need not
express any belief) the Final Memorandum when issued did not, and as of the
date such opinion is delivered does not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading..
7. Based upon the representations, warranties and agreements of the
Company in Sections 1(o), 1(w) and 5(g), 5(h) and 5(k) of the Placement
Agreement and of the Purchasers in Section 6 of the Placement Agreement and
on the representations and agreements contained in Exhibit D to the
Placement Agreement, it is not necessary in connection with the offer, sale
and delivery of the Offered Securities to the Purchasers under the
Placement Agreement or in connection with the initial resale of such
Offered Securities by the Purchasers in accordance with Section 6 of the
Placement Agreement to register the Offered Securities under the Securities
Act of 1933, it being understood that no opinion is expressed as to any
subsequent resale of any Security.
With respect to paragraph 7 above, such counsel may state that their
opinion and belief are based upon their participation in the preparation of the
Final Memorandum (and any amendments or supplements thereto) other than
documents incorporated therein by reference and review and discussion of the
contents thereof, including incorporated documents, but are without independent
check or verification except as specified.
C-2
EXHIBIT D
Each Memorandum shall contain language to the following effect:
"Each purchaser of the Securities will be deemed to:
(1) represent that it is purchasing the Securities for its own
account or an account with respect to which it exercises sole investment
discretion and that it or such account is a QIB or an institutional
accredited investor or a foreign purchaser that is outside the United
States (or a foreign purchaser that is a dealer or other fiduciary in the
United States acting on a discretionary basis for foreign beneficial owners
(other than an estate or trust));
(2) acknowledge that the Offered Securities and the Common Stock
issuance upon conversion of the Securities have not been registered and the
Securities will not be 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 as set forth below;
(3) agree that if it should resell or otherwise transfer the Offered
Securities or the Common Stock issuable upon conversion of the Securities
within three years after the original issuance of the Securities, it will
do so only (a) to the Company or any subsidiary thereof, (b) inside the
United States to a QIB in compliance with Rule 144A, (c) inside the United
States to an institutional accredited investor that, prior to such
transfer, furnishes to the Trustee, as registrar for the Securities (or in
the case of the Common Stock, the transfer agent for the Common Stock (the
"Transfer Agent"), a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Securities (or
the Common Stock, as the case may be) (the form of which letter can be
obtained from the Trustee or Transfer Agent), (d) outside the United States
in compliance with Rule 904 under the Securities Act, (e) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act
(if available), or (f) pursuant to a registration statement which has been
declared effective with the Securities Act (and which continues to be
effective at the time of such transfer); and
(4) agree that it will give each person to whom it transfers such
Securities notice of any restrictions on transfer of such Securities.
D-1
Each institutional accredited investor (other than a QIB) that is an original
purchaser of the Securities will be required to sign an agreement to the
foregoing effect in the form attached as Annex A to the Memorandum. In the case
of any Securities in certificated form, prior to any proposed transfer of the
Securities within three years after the original issuance thereof, the holder
thereof must check the appropriate box set forth on certificate representing the
Security relating to the manner of such transfer and submit the Certificate
representing the Securities to the Trustee. If (i) such transfer is to an
institutional accredited investor or (ii) any holder proposes to transfer Common
Stock issued upon conversion of the Securities, in either case within three
years after the original issuance of the Securities, the holder (or beneficial
holder, as the case may be) will be required to furnish to the Trustee (or, in
the case of the Common Stock, the Transfer Agent) such certifications, legal
opinions or other information as it may reasonably require to confirm that the
proposed transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
Each certificate representing the Offered Securities will bear the
following legend:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A) (1), (2), (3) or (7) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THE NOTE EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT
IT WILL NOT WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED
HEREBY RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON
STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE EXCEPT (A) TO NATIONAL SEMICONDUCTOR
CORPORATION OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR
D-2
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE FIRST NATIONAL BANK OF BOSTON, AS
TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE) A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY WITHIN
THREE YEARS AFTER THE ORIGINAL ISSUANCE, THE OFFERED SECURITIES EVIDENCED OF
SUCH NOTE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE
HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO
THE FIRST NATIONAL BANK OF BOSTON, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE). IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE FIRST NATIONAL
BANK OF BOSTON, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE) SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE
TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THREE YEARS FROM THE
ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Each stock certificate representing the Underlying Securities issued upon
conversion of the Offered Securities will bear the following legend (unless such
Underlying Security has been sold pursuant to a registration statement that has
been declared effective under the Securities Act):
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED
D-3
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER
HEREOF AGREES THAT UNTIL THE EXPIRATION OF THREE YEARS AFTER THE ORIGINAL
ISSUANCE OF THE NOTE UPON THE CONVERSION OF WHICH THE COMMON STOCK EVIDENCED
HEREBY WAS ISSUED, (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK
EVIDENCED HEREBY EXCEPT (A) TO NATIONAL SEMICONDUCTOR CORPORATION OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH
RULE 144A, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) or (7) UNDER THE SECURITIES
ACT) THAT PRIOR TO SUCH TRANSFER, FURNISHES TO THE FIRST NATIONAL BANK OF
BOSTON, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE) A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRANSFER AGENT), (D) OUTSIDE THE UNITED STATES
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (F) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 1(F) ABOVE), IT WILL FURNISH TO THE FIRST NATIONAL BANK OF
BOSTON, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE) SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE
TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND (3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED
HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(F) ABOVE), A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY PURSUANT
TO
D-4
CLAUSE 1(F) ABOVE OR THE EXPIRATION OF THREE YEARS FROM THE ORIGINAL ISSUANCE OF
THE NOTE UPON THE CONVERSION OF WHICH THE COMMON STOCK EVIDENCED HEREBY WAS
ISSUED OR UPON THE EARLIER SATISFACTION OF THE FIRST NATIONAL BANK OF BOSTON, AS
TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE) THAT THE COMMON
STOCK HAS BEEN OR IS BEING OFFERED AND SOLD IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT. AS USED HEREIN, THE TERMS "UNITED STATES" AND "U. S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT."
D-5
Each Memorandum shall also contain language to the following effect:
"Each person receiving this offering Memorandum acknowledges that such
person (i) has been afforded an opportunity to request from the Company and
to review, and has received, all additional information considered by it to
be necessary to verify the accuracy of, or to supplement, the information
herein, (ii) it has not relied on the Initial Purchasers or any person
affiliated with the Purchasers in connection with its investigation of the
accuracy of such information or its investment decision and (iii) no person
has been authorized to give any information or to make any representation
concerning the Company or the Securities or the Underlying Securities
offered hereby other than as contained herein and information given by duly
authorized officers and employees of the Company in connection with
investors' examination of the Company and the terms of the offering, and,
if given or made, such other information or representations should not be
relied upon as having been authorized by the Company or the Purchasers.
D-6
