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Exhibit 1.01
27,025,000 Shares
▇▇▇▇▇▇▇▇▇ SEMICONDUCTOR INTERNATIONAL, INC.
Class A Common Stock
UNDERWRITING AGREEMENT
January 19, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. ▇▇▇▇▇▇▇▇▇ Semiconductor International, Inc.,
a Delaware corporation (the "COMPANY"), proposes to issue and sell to the
Underwriters (as defined) 6,140,880 shares (the "SECURITIES") of its Class A
Common Stock (the "COMMON STOCK") and Sterling Holding Company, LLC
("STERLING"), National Semiconductor Corporation ("NATIONAL") and the other
stockholders listed on Schedule A hereto (collectively with Sterling and
National, the "SELLING STOCKHOLDERS") propose severally to sell an aggregate of
17,359,120 outstanding shares of the Common Stock (such 23,500,000 shares of
Common Stock being hereinafter referred to as the "FIRM SECURITIES" ). The
Company proposes to issue and sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 1,410,000 shares of Common Stock and
Sterling proposes to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 2,115,000 outstanding shares of the
Common Stock (such 3,525,000 additional shares being hereinafter referred to as
the "OPTIONAL SECURITIES") as set forth below. The Firm Securities and the
Optional Securities are herein collectively called the "OFFERED SECURITIES". The
Company and the Selling Stockholders hereby agree with the several Underwriters
named in Schedule A hereto (the "UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with,
the several Underwriters that:
(i) A registration statement (No. 333-92941) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission (the "COMMISSION") and either
(i) has been declared effective under the Securities Act of 1933 (the
"ACT") and is not proposed to be amended or (ii) is proposed to be
amended by amendment or post-effective amendment. If such registration
statement (the "INITIAL REGISTRATION STATEMENT") has been declared
effective, either (i) an additional registration statement (the
"ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities
may have been filed with the Commission pursuant to Rule 462(b) ("RULE
462(B)") under the Act and, if so filed, has become effective upon
filing pursuant to such Rule and the Offered Securities all have been
duly registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration statement or
(ii) such an additional registration statement is proposed to be filed
with the Commission pursuant to Rule 462(b) and will become effective
upon filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant to
the initial registration statement and such additional registration
statement. If
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the Company does not propose to amend the initial registration
statement or if an additional registration statement has been filed and
the Company does not propose to amend it, and if any post-effective
amendment to either such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the
most recent amendment (if any) to each such registration statement has
been declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("RULE 462(C)") under the Act or, in the
case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(i) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (ii) if the Company
has advised the Representatives that it proposes to file an amendment
or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it
proposes to file one, "EFFECTIVE TIME" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration statement,
as amended at its Effective Time, including all information contained
in the additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(B)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(B)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "PROSPECTUS". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (i)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission promulgated thereunder ("RULES AND REGULATIONS") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading and (iii) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the
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Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Selling Stockholder
or any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse
effect on the business, assets, operations, properties, financial
condition, liabilities or prospects of the Company and its subsidiaries
taken as a whole, or would not materially and adversely affect the
ability of the Company to perform its obligations under this Agreement
(a "MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the
extent that the failure to so qualify or be in good standing would not
have a Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects, other than as described in the Prospectus.
(v) The Offered Securities and all other outstanding shares
of capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the
Offered Securities sold by the Company hereunder have been delivered
and paid for in accordance with this Agreement on each Closing Date (as
defined below), the Offered Securities will have been, validly issued,
fully paid and nonassessable and will conform in all material respects
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities, other than as set forth in the Securities
Purchase and Holders Agreement, as amended, dated March 11, 1997, among
the Company and the stockholders of the Company.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(vii) There are no contracts, agreements or understandings
between the Company or any subsidiary of the Company and any person
that would give rise to a valid claim against the Company or any
subsidiary of the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment, other than to the
Underwriters, in connection with this offering.
(viii) There are no contracts, agreements or understandings
between the Company or any subsidiary of the Company and any person
granting such person the right to require the Company or any subsidiary
of the Company to file a registration statement under the Act with
respect to any securities of the Company or any subsidiary of the
Company owned or to be owned by such person or to require the Company
or any subsidiary of the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act, other than the
Registration Rights Agreement dated March 11, 1997 among the Company
and certain stockholders of the Company.
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(ix) The Offered Securities have been approved for listing on
the New York Stock Exchange subject, in the case of the Offered
Securities to be sold by the Company hereunder, to notice of issuance.
(x) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
in connection with the issuance and sale of the Offered Securities by
the Company, except such as have been obtained and made under the Act
and the Rules and Regulations of the Commission thereunder and such as
may be required under state securities or blue sky laws in connection
with the offer and sale of the Offered Securities by the Company.
(xi) The execution, delivery and performance of this
Agreement, and the issuance and sale of the Offered Securities by the
Company, will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any domestic or, to
the knowledge of the Company, foreign, statute, rule, regulation or
order of any governmental agency or body or any court, having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject or the charter or by-laws of
the Company or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them and necessary to
conduct the business now operated by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property necessary to the
conduct of the business now operated by them under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business presently operated
and conducted by them, subject to such qualifications as may be set
forth in the Prospectus or except where the failure to so possess would
not, singularly or in the aggregate, have a Material Adverse Effect;
and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xiv) No material labor dispute with the employees of the
Company or any subsidiary of the Company exists or, to the knowledge of
the Company or any subsidiary of the Company, is imminent that might
have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess, have the
right to use by license or otherwise, or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them and, except as
disclosed in the Prospectus, have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material
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Adverse Effect; and neither the Company nor any subsidiary of the
Company is aware of any pending investigation which might lead to such
a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are, to the
Company's or any subsidiary's knowledge, threatened.
(xviii) The consolidated financial statements of the Company
included in each Registration Statement and the Prospectus present
fairly the financial position of the Company and ▇▇▇▇▇▇▇▇▇
Semiconductor Corporation on the basis stated therein as of the dates
shown and their results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States
applied on a consistent basis; the schedules included in each
Registration Statement present fairly the information required to be
stated therein; and the assumptions used in preparing the pro forma
financial statements, and the related notes thereto, included in each
Registration Statement and the Prospectus provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(xix) To the knowledge of the Company, the financial
statements of the Power Device Business of Samsung Electronics Co.,
Ltd. ("▇▇▇▇▇▇▇▇▇ KOREA") included in each Registration Statement and
the Prospectus present fairly the financial position of ▇▇▇▇▇▇▇▇▇ Korea
as of the dates shown and its results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; the schedules included in
each Registration Statement present fairly the information required to
be stated therein; and the assumptions used in preparing the pro forma
financial statements, and the related notes thereto, included in each
Registration Statement and the Prospectus provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(xx) Except as disclosed in the Prospectus, (i) there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole, since the date of the most
recent audited financial statements of the Company and its subsidiaries
included in the Prospectus and (ii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or any
subsidiary on any class of its capital stock since the date of the most
recent audited financial statements of the Company and the subsidiaries
included in the Prospectus.
(xxi) Neither the Company nor any subsidiary is an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
United States Investment Company Act of 1940 (the "INVESTMENT COMPANY
ACT"); and each of the Company and its subsidiaries is not and, after
giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the Prospectus,
will not be an "investment company" as defined in the Investment
Company Act.
(xxii) Neither the Company nor its subsidiaries has entered
and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(xxiii) None of the Company and its subsidiaries or, to the
best knowledge of the Company or any subsidiary, any director, officer,
agent, employee or other person associated with or acting on behalf of
the Company or any subsidiary has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or
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domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(xxiv) The Company is not a "United States real property
holding corporation" for purposes of section 897 of the Internal
Revenue Code of 1986, as amended.
(b) Each Selling Stockholder severally and not jointly represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such Closing Date and
full right, power and authority to enter into this Agreement, and, if
applicable, the Power of Attorney and the Custody Agreements (the "CUSTODY
AGREEMENTS") between such Selling Stockholder and BankBoston, N.A., as Custodian
(the "CUSTODIAN"), and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder or the Custodian, as the
case may be, on such Closing Date hereunder; and upon the delivery of and
payment for the Offered Securities on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Offered Securities
to be delivered by such Selling Stockholder or the Custodian, as the case may
be, on such Closing Date.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act and
the Rules and Regulations and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the Effective
Date of the Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and did not include, or
will not include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) on the date of
this Agreement, the Initial Registration Statement and, if the Effective Time of
the Additional Registration Statement is prior to the execution and delivery of
this Agreement, the Additional Registration Statement each conforms, and at the
time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration Statement in
which the Prospectus is included, each Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, neither of such documents
will include any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. The two preceding sentences apply only to the extent
that any statements in or omissions from a Registration Statement or the
Prospectus are based on written information furnished to the Company by such
Selling Stockholder specifically for use therein.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against such Selling Stockholder or
any Underwriter for a brokerage commission, finder's fee or other like payment
in connection with this offering.
(iv) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in connection
with the sale of the Offered Securities by such Selling Stockholder, except such
as have been obtained and made under the Act and the Rules and Regulations of
the Commission thereunder and such as may be required under state securities or
blue sky laws in connection with the offer and sale of the Offered Securities by
such Selling Stockholder.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions set forth herein, the Company and the Selling
Stockholders severally and not jointly agree to sell to the Underwriters, and
the Underwriters agree, severally and not jointly, to purchase from the Company
and the
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Selling Stockholders, at a purchase price of $_ per share, the
respective numbers of shares of Firm Securities set forth opposite the names of
the several Underwriters in Schedule A hereto.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders (other than National) hereunder have been placed in
custody, for delivery under this Agreement, under the Custody Agreements made
with the Custodian. Each Selling Stockholder (other than National) agrees that
the shares represented by the certificates held in custody for such Selling
Stockholder under such Selling Stockholder's Custody Agreement are subject to
the interests of the Underwriters hereunder, that the arrangements made by such
Selling Stockholder for such custody are to that extent irrevocable, except as
provided in any Custody Agreement with respect to the Selling Stockholder party
thereto, and that the obligations of such Selling Stockholder hereunder shall
not be terminated by operation of law, whether by the death of any individual
Selling Stockholder or the occurrence of any other event, or in the case of a
trust, by the death of any trustee or trustees or the termination of such trust,
except as provided in any Custody Agreement with respect to the Selling
Stockholder party thereto. If any individual Selling Stockholder party to a
Custody Agreement or any such trustee or trustees should die, or if any other
such event should occur, or if any of such trusts should terminate, before the
delivery of the Offered Securities hereunder, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or termination had
not occurred, regardless of whether or not the Custodian shall have received
notice of such death or other event or termination.
The Company and the Selling Stockholders or the Custodian, as the case
may be, will deliver the Firm Securities to the Representatives for the accounts
of the Underwriters, against payment of the purchase price in Federal (same day)
funds by official wire transfer to an account designated by the Company, the
Selling Stockholders and the Custodian, as the case may be, at a bank acceptable
to CSFBC at the office of Cravath, Swaine & ▇▇▇▇▇, at 9:00 A.M., New York time,
on January [25], 2000 or at such other time not later than seven full business
days thereafter as CSFBC and the Company determine, such time being herein
referred to as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), the First
Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the above office at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFBC given to the Company and
Sterling from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per share of Common Stock to be paid for the
Firm Securities. The Company and Sterling agree, severally and not jointly, to
sell to the Underwriters the number of Optional Securities specified in such
notice and the Underwriters agree, severally and not jointly, to purchase such
Optional Securities. Such Optional Securities shall be purchased for the account
of each Underwriter in the same proportion as the number of Firm Securities set
forth opposite such Underwriter's name in Schedule A hereto bears to the total
number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. In the event that the over-allotment option is exercised by the
Underwriters in part but not in full, the amount of Optional Securities
purchased by the Underwriters from the Company and Sterling shall be in exact
proportion to the amount of Optional Securities purchased by the Underwriters
from the Company and Sterling had the over-allotment option been exercised by
the Underwriters in full. No Optional Securities shall be sold or delivered
unless the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by CSFBC to the
Company and Sterling.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC\
but shall be not later than five full business days after written notice
of election to purchase Optional Securities is given. The Company and Sterling
or the Custodian, as the case may be, will deliver the Optional Securities being
purchased on each Optional Closing Date to the Representatives for the accounts
of the several Underwriters, against payment of the purchase price therefor in
Federal (same day)
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funds by official wire transfer to an account at a bank acceptable to CSFBC,
at the above office. The certificates for the Optional Securities being
purchased on each Optional Closing Date will be in definitive form, in such
denominations and registered in such names as CSFBC requests upon reasonable
notice prior to such Optional Closing Date and will be made available for
checking and packaging at the above office at a reasonable time in advance
of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders.
The Company and, as specifically set forth below, the Selling Stockholders,
each with respect to itself, agree with the several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier
of (A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement. The Company will advise
CSFBC promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make
such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its reasonable best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
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9
(e) The Company will furnish to the Representatives copies of
each Registration Statement (three of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC reasonably
requests. The Prospectus shall be so furnished on or prior to 3:00
P.M., New York time, on the business day following the later of the
execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other documents shall be so
furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company, in cooperation with the Underwriters and
their counsel, will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution; provided that the Company will not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(g) During the period of three years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and
the Company will furnish to the Representatives and, upon request, to
each of the other Underwriters, (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed
with the Commission under the Exchange Act or mailed to stockholders,
and (ii) from time to time, such other information concerning the
Company as CSFBC may reasonably request.
(h) The Company and the Selling Stockholders will pay all
expenses incident to the performance of the obligations of the Company
and the Selling Stockholders, as the case may be, under this Agreement,
for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of
the Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and the printing of memoranda relating thereto, for
the filing fee incident to, and the reasonable fees and disbursements
of counsel to the Underwriters in connection with, the review by the
National Association of Securities Dealers, Inc. of the Offered
Securities, for any travel expenses of the Company's officers and
employees, for all fees and expenses incident to listing the Offered
Securities on The New York Stock Exchange and any other expenses of the
Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities and for expenses
incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Underwriters.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Underwriters of the completion of
the distribution of the Offered Securities, neither the Company nor any
of its affiliates has or will, either alone or with one or more other
persons, bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest, any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither it
nor any of its affiliates will make bids or purchases for the purpose
of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
(j) For a period of 90 days after the First Closing Date, the
Company, each of the Selling Stockholders (other than National,
Sterling, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇.
▇▇▇▇▇), Citicorp Venture Capital Ltd., CCT Partners IV, LP, W. ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its shares of Common
Stock or securities convertible into or exchangeable or exercisable for
any shares of its shares of Common Stock, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC. Notwithstanding the
foregoing sentence, during such 90 day period (A) the Company
(1) may grant stock options pursuant to the Company's existing stock
option plans, and may issue shares of Common Stock pursuant to the
exercise of such options, (2) may file registration statements on Form
S-8 and amendments thereto in connection with those stock option or
employee stock purchase plans of the Company in existence on the
Closing Date, (3) may file an amendment to the registration statement
on Form S-8 to register 435,520 additional shares of Common Stock and
distribute such shares pursuant to the Fairchild-NSC Deferred
Compensation
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Plan, (4) may issue shares of Common Stock upon the exercise of any
option or warrant or the conversion or exchange of a security issued by
it and outstanding on the date hereof and (5) may issue shares or
options in acquisitions in which the acquiror or acquirors of such
shares agree(s) to such restrictions, and (B) the foregoing
limitations, subject to the provisions set forth below, shall not
affect offers, sales or other dispositions by any Selling
Stockholder of those shares of Common Stock issued upon conversion of
the Company's previously authorized 12% Series A Cumulative Compounding
Preferred Stock (the "Converted Common Stock"); PROVIDED, that any such
sales of Converted Common Stock shall be effectuated by a broker-dealer
affiliate of CSFBC; and PROVIDED FURTHER, that the Selling Stockholder
proposing to offer, sell or otherwise dispose of any Converted Common
Stock obtains the prior approval of the Company Compliance Officer
prior to any sale of the Converted Common Stock, which approval shall
be based upon CSFBC's judgment as to any adverse effect of the proposed
sale on the market for Company Common Stock.
(k) The Company will apply the net proceeds of the offering
and the sale of the Offered Securities received by it in the manner set
forth in the Prospectus under the caption "Use of Proceeds."
(l) Each Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group, on or prior to the First
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(m) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, (i) with respect to ▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include, and (ii) with respect to each of the other Selling
Stockholders, any event occurs as a result of which, to the knowledge
of such Selling Shareholder, the Prospectus as then amended or
supplemented would include, an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, such Selling Stockholder will
promptly notify CSFBC and the Company of such event.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters (i) to purchase and pay for the Firm Securities on
the First Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Stockholders herein
and in the Custody Agreements in all material respects, except to the extent
such representations and warranties are already qualified by materiality in
Section 2 herein, to the accuracy of the statements of Company, Sterling and
National officers made pursuant to the provisions hereof, to the performance by
the Company and the Selling Stockholders of their respective obligations
hereunder and to the additional conditions precedent listed in this Section 6
and (ii) to purchase and pay for the Optional Securities on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and Sterling herein and in its Custody
Agreement in all material respects, except to the extent such representations
and warranties are already qualified by materiality in Section 2 herein, to the
accuracy of the statements of Company and Sterling officers made pursuant to the
provisions hereof, to the performance by the Company and Sterling of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of KPMG LLP, independent auditors for the Company and its
subsidiaries (except for Fairchild Korea), substantially in the form of
Exhibit A hereto and acceptable to the Underwriters.
(b) The Underwriters shall have received a letter, dated the
date of delivery thereof, of Samil Accounting Corporation, independent
auditors for Fairchild Korea, substantially in the form of Exhibit B
hereto and acceptable to the Underwriters.
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(c) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Selling Stockholders, the
Company or the Representatives, shall be threatened by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the reasonable
judgment of CSFBC, be likely to prejudice materially the success of the
public offering or the sale and payment for of the Offered Securities
whether in the primary market or in respect of dealings in the
secondary market, or (ii) any change, or any development or event
involving a prospective change, in the financial condition, business,
properties or results of operations of the Company and its subsidiaries
taken as a whole which, in the reasonable judgment of CSFBC, is
material and adverse and makes it impractical or inadvisable to proceed
with the completion of the public offering or the sale of and payment
for the Offered Securities; (iii) any downgrading in the rating of any
debt securities of the Company or its subsidiaries by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that
any such organization has under surveillance or review its rating of
any debt securities of the Company or its subsidiaries (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iv) any
suspension or limitation of trading in securities generally on the New
York Stock Exchange or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Company or its subsidiaries on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by Federal or New York
authorities; or (vi) any outbreak or escalation of major hostilities in
which the United States or Korea is involved, any declaration of war by
Congress or the Korean government or any other substantial national or
international calamity or emergency if, in the reasonable judgment of a
majority in interest of the Underwriters, including CSFBC, the effect
of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with the completion of
the public offering or sale of and payment for the Offered Securities.
(e) The Representatives shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of the Company,
that:
(i) each of the subsidiaries of the Company
(except Fairchild Korea) is a corporation in good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and corporate authority to own its properties
and conduct its businesses as described in the Prospectus; and
is duly qualified to do business as a foreign corporation and
is in good standing in the jurisdictions listed in such
opinion;
(ii) except as disclosed in the Prospectus, insofar
as is known to such counsel, there are no actions, suits or
proceedings threatened or pending against the Company or
subsidiaries of the Company or any of their respective
properties that if determined adversely to the Company or any
subsidiary would be reasonably likely to have a Material
Adverse Effect; and
(iii) such counsel does not know of any legal or
governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in a Registration Statement
or the Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required.
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12
(f) The Representatives shall have received an opinion, dated
the Closing Date, of Dechert Price & ▇▇▇▇▇▇, counsel for the Company,
that:
(i) the Company is a corporation in good standing
under the laws of the State of Delaware, with corporate power
and corporate authority to own its properties and conduct its
businesses as described in the Prospectus;
(ii) each of ▇▇▇▇▇▇▇▇▇ Semiconductor Corporation and
▇▇▇▇▇▇▇▇▇ Semiconductor Corporation of California is a
corporation in good standing under the laws of the state of
Delaware;
(iii) insofar as is known to such counsel, to the
extent the Prospectus contains summaries of statutes, legal
proceedings or agreements to which the Company or any of its
subsidiaries is a party (or provisions thereof) referred to
therein, such statements are true and correct in all material
respects;
(iv) the Offered Securities and all other outstanding
shares of capital stock of the Company have been duly
authorized; all outstanding shares of capital stock of the
Company are, and, when the Offered Securities have been
delivered and paid for in accordance with this Agreement on
each Closing Date, such Offered Securities will have been,
validly issued, fully paid and nonassessable and will conform
in all material respects to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the shares of Common Stock,
other than as set forth in the Securities Purchase and Holders
Agreement, as amended, dated March 11, 1997, among the Company
and certain stockholders of the Company;
(v) no consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the performance by the Company of its
obligations under this Agreement or in connection with the
issuance and sale of the Offered Securities by the Company
except such as have been obtained or made or as may be
required under the Securities Act or the Exchange Act and the
rules and regulations of the Commission thereunder and such as
may be required by state securities or blue sky laws in
connection with the offer and sale of the Offered Securities,
and except for such consents, approvals, authorizations,
orders or filings the failure of which to obtain or make would
not result in a Material Adverse Effect;
(vi) the execution, delivery and performance of this
Agreement by the Company and the issuance and sale of the
Offered Securities by the Company will not result in a breach
or violation of any of the terms and provisions of, or
constitute a default under, any material New York or Federal
statute, rule or regulation or the Delaware General
Corporation Law applicable to the Company or any order of any
governmental agency or body or any court having jurisdiction
over the Company, ▇▇▇▇▇▇▇▇▇ Semiconductor Corporation or
▇▇▇▇▇▇▇▇▇ Semiconductor Corporation of California or any of
their properties and which order is known to such counsel, or
any agreement or instrument listed in such opinion, or the
charter or by-laws of the Company, ▇▇▇▇▇▇▇▇▇ Semiconductor
Corporation or ▇▇▇▇▇▇▇▇▇ Semiconductor Corporation of
California, and the Company has full power and authority to
authorize, issue and sell the Offered Securities to be sold by
the Company as contemplated by this Agreement;
(vii) except as disclosed in the Prospectus, insofar
as is known to such counsel, there are no actions, suits or
proceedings threatened or pending against the Company or any
of its properties that if determined adversely to the Company
would be reasonably likely to have a Material Adverse Effect;
(viii) the Company is not an open-end investment
company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section
8 of the Investment Company Act, and it is not a closed-end
investment company required to be registered, but not
registered, thereunder; and the Company is not, and after
giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment
company" as defined in the Investment Company Act;
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(ix) the Initial Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any)
was filed and became effective under the Act as of the date
and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the knowledge of such
counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are
pending or threatened under the Act, and each Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations (except
as to the financial statements, supporting schedules,
footnotes and other financial and statistical information
included therein, as to which such counsel expresses no
opinion); and
(x) this Agreement has been duly authorized, executed
and delivered by the Company.
In addition, such counsel shall state in a separate letter
that they have participated in conferences with officers and other
representatives of the Company and representatives of the Underwriters
and its counsel during which the contents of the Registration Statement
and related matters were discussed and reviewed and, although such
counsel has not independently verified is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement, on the basis of
the information that was developed in the course of the performance of
the services referred to above, considered in the light of such
counsel's understanding of the applicable law, that nothing came to
their attention that caused them to believe that any part of a
Registration Statement or any amendment thereto made prior to the
Closing Date (other than the financial statements and schedules and the
other financial and statistical data included therein, as to which such
counsel expresses no opinion), as of its effective date or as of such
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that the
Prospectus or any amendment or supplement thereto, made prior to the
Closing Date (other than the financial statements and schedules and the
other financial and statistical data included therein, as to which such
counsel expresses no opinion), as of the date of the Prospectus or any
amendment or Supplement thereto or as of such Closing Date, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New York, the General Corporation Law of the State of Delaware
or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel
who are satisfactory to counsel for the Underwriters (which opinion
will be attached thereto) and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the
Company and public officials. Such opinion may be limited to the
General Corporation Law of the State of Delaware and the laws of the
State of New York, and the Federal laws of the United States.
(g) The Representatives shall have received an opinion, dated
the Closing Date, from ▇▇▇ & ▇▇▇▇▇, special counsel for the Company,
that:
(i) Fairchild Korea is a limited liability company
(chusik hoesa) duly organized and validly existing under the
laws of the Republic of Korea; and Fairchild Korea has the
corporate power to own its property and conduct its business
in accordance with its Articles of Incorporation.
(ii) Notwithstanding that certain other licenses and
permits may be required for Fairchild Korea to conduct its
business, no separate business license is necessary under the
Korean laws in order for Fairchild Korea to engage in
developing, manufacturing and selling power device products.
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14
(h) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇ ▇. ▇▇▇▇▇, III, General Counsel for National,
to the effect that:
(i) National had valid and unencumbered title to the
Offered Securities delivered by National on the Closing Date
and had full right, power and authority to sell, assign,
transfer and deliver the Offered Securities delivered by
National on such Closing Date hereunder; and the several
Underwriters have acquired valid and unencumbered title to the
Offered Securities purchased by them from National on such
Closing Date hereunder;
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by National for the
consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered
Securities sold by National, except such as have been obtained
and made under the Act and may be required under state
securities laws;
(iii) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute default under,
any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over National
or any of its properties or any agreement or instrument to
which National is a party or by which National is bound or to
which any of the properties of National is subject, or the
charter or by-laws of National; and
(iv) This Agreement has been duly authorized,
executed and delivered by National.
(i) The Representatives shall have received an opinion, dated
January 19, 2000, of Dechert Price & ▇▇▇▇▇▇, counsel for Sterling, to
the effect that:
(i) Sterling had valid and unencumbered title to the
Maximum Number of Shares (as defined in the Power of
Attorney), which Shares are represented by the certificates
being concurrently deposited with the Custodian, pursuant to
the Custody Agreement, between Sterling and the Custodian, and
has full right, power and authority to sell, assign, transfer
and deliver the Shares pursuant to this Agreement; and the
Underwriters have acquired valid and unencumbered title to the
Shares purchased by them from Sterling on the Closing Date
hereunder;
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by Sterling for the
consummation of the transactions contemplated by this
Agreement in connection with the sale of the Shares sold by
Sterling, except such as have been or will be obtained or made
under the Act and such as may be required under state
securities laws;
(iii) The execution, delivery and performance of this
Agreement and the consummation of the transactions therein
contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under,
any material New York or Federal statute, rule or regulation
or the Delaware General Limited Liability Company Law
applicable to Sterling or any order of
any governmental agency or body or any court having
jurisdiction over Sterling or any of its properties and which
order is known to such counsel, or any agreement or instrument
listed on Schedule A to such opinion, or the certificate of
formation, limited liability company agreement or any other
constitutive documents of Sterling, and Sterling has full
power and authority to sell the Shares sold by it as
contemplated by this Agreement;
(iv) Each of the Power of Attorney and Custody
Agreement has been duly authorized, executed and delivered by
Sterling and constitutes a valid and legally binding
obligation of Sterling enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and
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15
(v) This Agreement has been duly authorized, executed
and delivered by one of the Attorneys (as defined in the Power
of Attorney) on behalf of Sterling.
(j) The Representatives shall have received from Cravath,
Swaine & ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectus and other
related matters as the Representatives may require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(k) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable investigation
and in their capacity as such officers, on behalf of the Company, shall
state that: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
threatened by the Commission; the Additional Registration Statement (if
any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time the Prospectus was printed and distributed to
any Underwriter; and, subsequent to the dates of the most recent
financial statements of the Company in the Prospectus, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(l) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Senior Vice President
and a principal financial or accounting officer of National in which
such officers, to the best of their knowledge and after reasonable
investigation and in their capacity as such officers, on behalf of
National, shall state that: all the representations and warranties of
National contained in this Agreement are true and correct on the date
hereof with the same force and effect as if made on and as of the date
hereof; and National has complied with all of the agreements and
satisfied all conditions on its part contained in this Agreement and
required to be complied with or satisfied by National on or prior to
such Closing Date.
(m) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Senior Vice President
and any authorized representative of Sterling in which such officers or
representatives, to the best of their knowledge and after reasonable
investigation and in their capacity as such officers or
representatives, on behalf of Sterling, shall state that: all the
representations and warranties of Sterling contained in this Agreement
are true and correct on the date hereof with the same force and effect
as if made on and as of the date hereof; and Sterling has complied with
all of the agreements and satisfied all conditions on its part
contained in this Agreement and required to be complied with or
satisfied by Sterling on or prior to such Closing Date.
(n) The Representatives shall have received a letter, dated
such Closing Date, of KPMG LLP which meets the requirements of
subsection (a) of this Section 6, except that the specified date
referred to in such subsection will be a date not more than three days
prior to such Closing Date for the purposes of this subsection (n).
(o) The Representatives shall have received a letter, dated
the Closing Date, of Samil Accounting Corporation which meets the
requirements of subsection (b) of this Section 6, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to the Closing Date for the purposes of
this subsection (o).
(p) The Company shall have received a waiver from each party
thereto (other than the Company) with respect to registration rights
granted to such party under the Registration Rights Agreement, dated
March 11, 1997, among the Company, Sterling, National and the
management investors listed therein.
16
16
(q) The "lock-up" agreements between the Representatives and
the Company, Citicorp Venture Capital Ltd., CCT Partners IV, LP, ▇▇▇▇
▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇., ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, W. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, delivered to you on or before the date hereof,
shall be in full force and effect on the Closing Date.
(r) The Power of Attorney between each of the Selling
Stockholders (other than National) and the Custodian, and the Custody
Agreements, between each of the Selling Stockholders (other than
National) and the Custodian, shall have been received by the Custodian
and be in full force and effect on the Closing Date.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a)(i) The Company will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (c) below; and PROVIDED FURTHER, HOWEVER, that the foregoing
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of the Underwriter from whom the person asserting any such losses,
claims, damages, liabilities or actions in respect thereof purchased Offered
Securities to the extent that such losses, claims, damages, liabilities or
actions in respect thereof of such Underwriter result from a fact that such
Underwriter sold Offered Securities to a person in an initial resale to whom
there was not sent or given, at or prior to the written confirmation of the sale
of such Offered Securities, a copy of the Prospectus (as amended or
supplemented), if the Company had previously furnished a copy of such amendments
or supplements to such Underwriter, and the losses, claims, damages, liabilities
or actions in respect thereof of such Underwriter result from an untrue
statement or omission of a material fact contained in the preliminary
prospectus, which was corrected in the Prospectus.
(b) Each Selling Stockholder will severally and not jointly indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Selling Stockholder specifically for use therein and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that the Selling Stockholders will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with
17
17
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and PROVIDED FURTHER,
HOWEVER, that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of the Underwriter from whom the person asserting
any such losses, claims, damages, liabilities or actions in respect thereof
purchased Offered Securities to the extent that such losses, claims, damages,
liabilities or actions in respect thereof of such Underwriter result from a fact
that such Underwriter sold Offered Securities to a person in an initial resale
to whom there was not sent or given, at or prior to the written confirmation of
the sale of such Offered Securities, a copy of the Prospectus (as amended or
supplemented), if the Company had previously furnished a copy of such amendments
or supplements to such Underwriter, and the losses, claims, damages, liabilities
or actions in respect thereof of such Underwriter result from an untrue
statement or omission of a material fact contained in the preliminary
prospectus, which was corrected in the Prospectus; and PROVIDED FURTHER,
however, that the liability under this Section 7(b) of each Selling Stockholder
shall be limited to an amount equal to the aggregate gross proceeds to such
Selling Stockholder from the sale of Securities sold by such Selling Stockholder
hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company and each Selling Stockholder
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each
Underwriter: the paragraph on the cover page concerning the terms of the
Offering by the Underwriters, the concession and reliance figures appearing in
the fifth paragraph under the caption "Underwriting" and the over-allotment and
stabilization information contained in the tenth paragraph under the caption
"Underwriting."
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section, as the case may be,
for any legal or other expenses subsequently incurred by such indemnified party
in connection with thedefense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims,
18
18
damages or liabilities referred to in subsection (a), (b) or (c) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Selling Stockholders on the one hand and the Underwriters on
the other from the offering of the shares of Common Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholders bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the shares of Common
Stock underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and, with respect to any Optional
Closing Date, to the Company and Sterling for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders, and, in the case of any
Optional Securities, the Company and Sterling for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders or, in the
case of any Optional Securities, the Company or Sterling, except as provided in
Section 9 (provided that if such default occurs with respect to Optional
Securities after the First Closing Date, this Agreement will not terminate as to
the Firm Securities or any Optional Securities purchased prior to such
termination). As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
19
19
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders and of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Selling
Stockholders, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (v) or (vi) of Section 6(d), the Company and the Selling
Stockholders will reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇▇▇▇▇▇ Semiconductor
International, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mail Stop ▇▇-▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. or, if sent to National, will be mailed,
delivered or telegraphed and confirmed to it at National Semiconductor
Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇, III, Esq., or if sent to Sterling, will be mailed, delivered or
telegraphed and confirmed to it at Sterling Holding Company, LLC, c/o Fairchild
Semiconductor Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., or if sent to any of the other Selling Stockholders, will
be mailed, delivered or telegraphed and confirmed to it at the address set forth
in the applicable Custody Agreement; PROVIDED, HOWEVER, that any notice to an
Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representatives jointly or by CSFBC will be
binding upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and the Selling Stockholders hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
20
20
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Stockholders and the several Underwriters in accordance
with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇▇ SEMICONDUCTOR INTERNATIONAL,
INC.,
By
----------------------------------------------
Name:
Title:
NATIONAL SEMICONDUCTOR CORPORATION,
By
----------------------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS SET FORTH ON
SCHEDULE A HERETO (OTHER THAN NATIONAL),
By
----------------------------------------------
Name:
Title: Attorney-in-Fact for the Selling
Stockholders (other than National)
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION,
By
---------------------------------------
Name:
Title
21
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SECURITIES
Credit Suisse First Boston Corporation................................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. ............................................................
Deutsche Bank Securities Inc..........................................................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated....................................
FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc...................................................
Total............................................................................. 23,500,000
==========
22
NUMBER OF FIRM NUMBER OF
SELLING STOCKHOLDER SECURITIES OPTIONAL SECURITIES
------------------- ---------- -------------------
Sterling Holding Company,
LLC................................. 9,000,000 2,115,000
National Semiconductor
Corporation......................... 7,243,360 --
▇▇▇▇ ▇. ▇▇▇▇........................ 288,646 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.................... 130,000 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇..................... 99,672 --
▇▇▇▇▇ ▇. ▇▇▇▇▇...................... 67,821 --
▇▇▇▇▇ ▇▇▇▇▇▇▇....................... 33,520 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇...................... 50,100 --
▇▇▇▇▇ ▇. ▇▇▇▇▇...................... 10,000 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.................... 9,200 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇............... 218,833 --
BG Partners, LLP
(▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇)................. 18,049 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇..................... 16,000 --
▇▇▇▇▇ ▇. ▇▇▇▇▇...................... 16,000 --
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.................. 31,584 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇................ 31,584 --
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.................. 31,584 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.................... 31,584 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇................... 31,584
----------
Total....................... 17,359,120 2,115,000
---------- =========