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EXHIBIT 1.1
$500,000,000
LSI LOGIC CORPORATION
4% CONVERTIBLE SUBORDINATED NOTES DUE 2005
UNDERWRITING AGREEMENT
FEBRUARY 14, 2000
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February 14, 2000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs and Mesdames:
LSI Logic Corporation, a Delaware corporation (the "COMPANY"),
proposes to issue and sell to X.X. Xxxxxx Securities Inc. (the "UNDERWRITER")
$500,000,000 aggregate principal amount at maturity of its 4% Convertible
Subordinated Notes due 2005 (the "FIRM SECURITIES"), to be issued pursuant to
the provisions of a Subordinated Indenture and a Supplemental Indenture, each
dated as of February 15, 2000 (taken together, the "INDENTURE") and entered into
between the Company and State Street Bank and Trust Company of California, N.A.,
as Trustee (the "TRUSTEE"). The Company also proposes to issue and sell to the
Underwriter not more than an additional $75,000,000 principal amount of its 4%
Convertible Subordinated Notes due 2005 (the "ADDITIONAL SECURITIES") if and to
the extent that the Underwriter shall have determined to exercise the right to
purchase such Additional Securities granted to the Underwriter in Section 2
hereof. The Firm Securities and the Additional Securities are hereinafter
collectively referred to as the "SECURITIES." The Securities will be convertible
into shares of common stock of the Company, par value $0.01 per share (the
"UNDERLYING SECURITIES").
The Company has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement on Form S-3 (Registration No.
333-83963), including a prospectus, relating to its debt securities and shares
of its Common Stock, and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "SECURITIES ACT"). The term "REGISTRATION STATEMENT" means the registration
statement, including the exhibits thereto, as amended to the date of this
Agreement. The term "BASIC PROSPECTUS" means the prospectus included in the
Registration Statement. The term "PROSPECTUS" means the Basic Prospectus
together with the Prospectus Supplement. As used herein, the terms "Registration
Statement," "Basic Prospectus," and "Prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "SUPPLEMENT,"
"AMENDMENT" and "AMEND" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT").
1. Representations and Warranties. The Company represents and
warrants to and agrees with the Underwriter that:
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(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective, did
not contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder, and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to the Underwriter furnished
to the Company in writing by you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of Delaware, has the
corporate power and corporate authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each Significant Subsidiary (as defined below) of the
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and corporate authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock of LSI
Logic Europe Limited, LSI Logic Japan Semiconductor, Inc., LSI Logic Storage
Systems, Inc., and LSI Logic K.K. (collectively, the "SIGNIFICANT SUBSIDIARIES")
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned of record directly or indirectly by the Company
(except in the case of LSI Logic K.K. of which the Company owns of record
approximately 93% of the issued shares of capital stock), free and clear of all
liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
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(f) The authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the Prospectus.
(g) The shares of common stock of the Company, par value
$0.01 per share (the "COMMON STOCK"), outstanding on the date hereof have been
duly authorized and are validly issued, fully paid and non-assessable.
(h) The Securities have been or will be prior to the
Closing Date, duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Placement Agent in accordance with the terms of this Agreement, will be valid
and binding obligations of the Company, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity, and will be
entitled to the benefits of the Indenture.
(i) The Underlying Securities reserved for issuance upon
conversion of the Securities have been duly authorized and reserved and, when
issued upon conversion of the Securities in accordance with the terms of the
Securities will be validly issued, fully paid and non-assessable, and the
issuance of the Underlying Securities will not be subject to any preemptive of
similar rights.
(j) The Indenture has been duly authorized, and on the
Closing Date, will be duly executed and delivered by, and be a valid and binding
agreement of, the Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
(k) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Securities will not contravene any provision of applicable law
or the certificate of incorporation or by-laws of the Company or, except as
disclosed in the Prospectus, any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture and the Securities, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and sale of
the Securities.
(l) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
(m) There are no legal or governmental proceedings pending
or, to the Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject other than
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proceedings accurately described in the Registration Statement or the Prospectus
and proceedings that would not have a material adverse effect on the Company and
its subsidiaries, taken as whole, or on the power or ability of the Company to
perform its obligations under this Agreement, the Indenture and the Securities
or to consummate the transactions contemplated hereby and thereby.
(n) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, will not be, required to register an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(o) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(q) Since the date of the latest audited consolidated
financial statements included or incorporated by reference in the Prospectus,
there has not been any change in the capital stock, other than the reservation
of shares for the Underlying Securities, for issuance of options and stock under
benefit plans, or in long-term debt of the Company or any of its subsidiaries,
otherwise than as set forth in the Prospectus or in the documents incorporated
by reference therein.
(r) The Securities conform in all material respects to the
descriptions thereof contained in the Prospectus under the headings "Description
of the Notes" and "Description of the Debt Securities."
(s) The Company and each of its subsidiaries has good and
marketable title to all real and personal property owned by it, in each case,
free and clear of any security interests, liens, encumbrances, equities, claims
and other defects, except such as do not materially and adversely affect the
value of such property by the Company or its subsidiaries, and any real property
and buildings held under lease by the Company are held under valid, subsisting
and enforceable leases, with such exceptions as are not material to the Company
and
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its subsidiaries, taken as a whole, and do not materially interfere with the
use made or proposed to be made of such property and buildings by the Company or
its subsidiaries.
(t) The Company and each of its subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate rights to use all
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights and licenses necessary for
the conduct of their respective businesses as now conducted or as proposed to be
conducted as described in the Prospectus, except as would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole. Neither
the Company nor any of its subsidiaries has received any notice of infringement
of or conflict with asserted rights of any third party with respect to the
foregoing which, singly or in the aggregate, would reasonably be expected to
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(u) The Company has filed all federal, state and local
income and franchise tax returns required to be filed through the date hereof
and has paid all taxes shown thereon, as due and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which has had
(nor does the Company have any knowledge of any tax deficiency which will have)
a material adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole.
(v) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries and delivered their
report with respect to the audited financial statements included or incorporated
by reference in the Prospectus, are independent public accountants within the
meaning of such term for purposes of the Securities Act and the applicable rules
and regulations thereunder. Except as set forth or otherwise noted in the
Prospectus, the financial statements included or incorporated by reference in
the Prospectus were prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, and fairly
present in all material respects, the financial condition of the Company and its
subsidiaries as of the dates at which they were prepared and the results of
operation of the Company and its subsidiaries in respect of the periods for
which they were prepared.
(w) The Company and each of its subsidiaries possesses all
consents, licenses, certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, except as would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such consent, license,
certificate, authorization or permit, which, singly or in the aggregate, would
reasonably be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the Underwriter, and the Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase from the Company
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the principal amount of the Firm Securities at a purchase price of 97.0% of the
principal amount thereof, plus accrued interest, if any, to the closing date
(the "PURCHASE PRICE").
On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, the Company agrees to
sell to the Underwriter the Additional Securities, and the Underwriter shall
have a one-time right to purchase up to $75,000,000 aggregate principal amount
of Additional Securities at the Purchase Price. If the Underwriter elects to
exercise such option, the Underwriter shall so notify the Company in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Securities to be purchased by the Underwriter and the
date on which such Additional Securities are to be purchased. Such date may be
the same as the Closing Date (as defined below) but not earlier than the Closing
Date nor later than ten business days after the date of such notice. The
Additional Securities may be purchased as provided in Section 4 hereof solely
for the purpose of covering over-allotments made in connection with the offering
of the Firm Securities.
The Company hereby agrees that, without the prior written consent
of the Underwriter, it will not, during the period ending sixty (60) days after
the date of the Prospectus Supplement, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other agreement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. Notwithstanding the foregoing, the Company may without such consent
(A) issue and sell the Securities to be sold hereunder, or (B) grant options or
issue and sell stock upon the exercise of outstanding stock options or otherwise
pursuant to the Company's stock option or employee stock purchase plans, or (C)
take any of the actions described in (i) and (ii) above in connection with other
acquisitions of technologies, businesses or portions thereof.
3. Terms of the Offering. It is understood that the Underwriter
proposes to offer the Securities for sale to the public as set forth in the
Prospectus.
4. Payment and Delivery. Payment for the Firm Securities shall be
made to the Company in Federal or other funds immediately available in New York
City against delivery of such Firm Securities for the accounts of the
Underwriter at 10:00 a.m., New York City time, on February 18, 2000, or at such
other time on the same or such other date, not later than February 23, 2000, as
shall be designated in writing by the Underwriter. The time and date of such
payment are hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Securities shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Additional Securities for the accounts of the Underwriter at
10:00 a.m., New York City time, on the date specified in the notice described in
Section 2 or at such other time on the same or on such other date, in any event
not later than March 15, 2000, as shall be designated in writing by the
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Underwriter. The time and date of such payment are hereinafter referred to as
the "OPTION CLOSING DATE."
Certificates for the Firm Securities and Additional Securities
shall be in definitive form or global form, as specified by you, and registered
in such names and in such denominations as you shall request in writing not
later than one full business day prior to the Closing Date or the Option Closing
Date, as the case may be. The certificates evidencing the Firm Securities and
Additional Securities shall be delivered to the Underwriter on the Closing Date
or the Option Closing Date, as the case may be, with any transfer taxes payable
in connection with the transfer of the Securities to the Underwriter duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriter's Obligations. The obligations
of the Underwriter to purchase and pay for the Firm Securities are subject to
the following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of this
Agreement) that, in the Underwriter's judgment, is material and adverse and that
makes it, in the Underwriter's judgment, impracticable to market the Securities
on the terms and in the manner contemplated in the Prospectus.
(b) The Underwriter shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a)(i) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing Date.
(c) The Underwriter shall have received on the Closing
Date an opinion of Xxxxx X. Xxxxxxx, general counsel of the Company, dated the
Closing Date, to the effect set forth in EXHIBIT A hereto, and an opinion of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, special counsel for
the Company, dated the Closing Date, to the effect set forth in EXHIBIT B
hereto. Such opinions shall be rendered to the Underwriter at the request of the
Company and shall so state therein.
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(d) The Underwriter shall have received on the Closing
Date an opinion of Shearman & Sterling, counsel for the Underwriter, dated the
Closing Date, in form and substance reasonably satisfactory to it.
(e) The Underwriter shall have received, on each of the
date hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the Underwriter,
from PricewaterhouseCoopers LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to Underwriter with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
(f) The "lock-up" agreements, each substantially in the
form of EXHIBIT C hereto, between you and the executive officers and directors
of the Company relating to sales and certain other dispositions of shares of
Common Stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
(g) A supplemental listing application relating to the
Underlying Securities shall have been submitted to the New York Stock Exchange.
(h) You shall have received such other documents and
certificates as you or your counsel shall reasonably request.
The obligations of the Underwriter to purchase Additional
Securities hereunder are subject to the delivery to you on the Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Securities and other matters related to the issuance of the Additional
Securities.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriter herein contained, the Company covenants with the
Underwriter as follows:
(a) To furnish to the Underwriter in New York City,
without charge, as soon as is reasonably possible after the date of this
Agreement and during the period mentioned in Section 6(c) below, as many copies
of the Prospectus, any documents incorporated by reference therein, and any
supplements and amendments thereto or to the Registration Statement as the
Underwriter may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to the Underwriter a copy of each such
proposed amendment or supplement and not to file any such proposed amendment or
supplement to which the Underwriter reasonably objects, and to file with the
Commission within the applicable period specified in Rule 424(b) under the
Securities Act any prospectus required to be filed pursuant to such Rule.
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(c) If, during such period after the first date of the
public offering of the Securities, the Prospectus is required by law to be
delivered in connection with sales by the Underwriter or dealer, any event shall
occur or condition exist as a result of which (i) it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or (ii) if, in the opinion of counsel for the Underwriter, it is
necessary to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus to comply with
applicable law, to forthwith prepare, file with the Commission and furnish, at
its own expense, to the Underwriter and to the dealers (whose names and
addresses the Underwriter will furnish to the Company) to which Securities may
have been sold by the Underwriter and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriter shall reasonably request.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel and the Company's accountants in connection with the registration and
delivery of the Securities under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the Registration
Statement, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriter and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Securities to the Underwriter, including any
transfer or other taxes payable thereon, (iii) the cost of printing or producing
any Blue Sky memorandum in connection with the offer and sale of the Securities
under state securities laws and all expenses in connection with the
qualification of the Securities for offer and sale under state securities laws
as provided in Section 6(d) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriter in connection with such
qualification and in connection with the Blue Sky memorandum, (iv) any fees
charged by rating agencies for the rating of the Securities, (v) all document
production charges and expenses of counsel to the Underwriter (but not including
their fees for professional services) in connection with the preparation of this
Agreement, (vi) all costs and expenses incident to listing the Securities on the
New York Stock Exchange, (vii) the cost of printing certificates representing
the Securities, (viii) the costs and charges of the Trustee or any transfer
agent, registrar or depositary and (ix) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which provision
is not otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 7 entitled "Indemnity and Contribution", and
the last paragraph of Section 9 below, the Underwriter will pay all of its costs
and expenses, including fees and disbursements of its counsel, transfer taxes
payable on resale of any of the Securities by the Underwriter and any
advertising expenses connected with any offers the Underwriter may make.
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(f) To file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Securities.
7. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact 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, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to the Underwriter furnished to the
Company in writing by such Underwriter expressly for use therein.
(b) The Underwriter agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter expressly for use in the Registration
Statement, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of
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more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Underwriter
in the case of parties indemnified pursuant to Section 7(a), and by the Company,
in the case of parties indemnified pursuant to Section 7(b). The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
Section 7(a) or 7(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriter on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause 7(d)(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 7(d)(i) above but also the relative fault of the Company on the one
hand and of the Underwriter on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other hand in
connection with the offering of the Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Securities
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriter, in each case as set forth
in the table on the cover of the Prospectus, bear to the aggregate Purchase
Price of the Securities. The relative fault of the Company on the one hand and
the Underwriter on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Underwriter agree that it would
not be just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or
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by any other method of allocation that does not take account of the equitable
considerations referred to in Section 7(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, the Underwriter shall not be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Underwriter or any person controlling
such Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Securities.
8. Termination. This Agreement shall be subject to termination by
notice given by the Underwriter to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the Underwriter's judgment, is material and adverse and (b) in the case
of any of the events specified in clauses 8(a)(i) through 8(a)(iv), such event,
singly or together with any other such event, makes it, in the Underwriter's
judgment, impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. Effectiveness. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriter for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by such
Underwriter in connection with this Agreement or the offering contemplated
hereunder.
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10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Notices. All notices and other communications under this
Agreement shall be in writing and mailed, delivered or sent by facsimile
transmission to: if sent to the Underwriter, X.X. Xxxxxx Securities Inc., 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxxx Xxxx, facsimile
number (000) 000-0000, and if sent to the Company, to LSI Logic Corporation,
0000 XxXxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel,
facsimile number (000) 000-0000.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
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15
Very truly yours,
LSI LOGIC CORPORATION
By: /s/ R. XXXXXXX XXXXX
------------------------------------
Name: R. Xxxxxxx Xxxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof
X.X. Xxxxxx Securities Inc.
By: /s/ XXXX XXXXXXXX XXXXXXXXX
-----------------------------
Name: Xxxx Xxxxxxxx Xxxxxxxxx
Title: Vice President
[Signature page to Underwriting Agreement]
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16
EXHIBIT A
OPINION OF GENERAL COUNSEL TO THE COMPANY
The opinion of the general counsel of the Company, to be delivered
pursuant to Section 5(c) of the Underwriting Agreement, shall be to the effect
that:
1. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
2. Each domestic Significant Subsidiary (as that term is defined to mean
in the Underwriting Agreement) has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and corporate authority to own its
property and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the issued shares of
capital stock of each domestic Significant Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly
by the Company, free and clear of all liens, encumbrances, equities or claims.
3. All of the issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued, and are fully paid and
non-assessable and conform as to legal matters to the description thereof
contained in the Prospectus.
4. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the Indenture
and the Securities will not conflict with or result in a breach or violation of
or default under (in each case material to the Company and its subsidiaries,
taken as a whole), except as disclosed in the Prospectus, any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
known to such counsel to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which any
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation (in each case material to the Company
and its subsidiaries, taken as a whole) of any statute or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any of its subsidiaries or any of their properties.
5. Such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is a party
or to which any of the
17
properties of the Company or any of its subsidiaries is subject other than
proceedings fairly summarized in all material respects in the Prospectus and
proceedings which such counsel believes are not likely to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under the
Underwriting Agreement or to consummate the transactions contemplated by the
Prospectus.
6. The statements under "Item 3-Legal Proceedings" of the Company's most
recent annual report on Form 10-K, and under "Item 1 - Legal Proceedings" in
Part II of any quarterly report on Form 10-Q and "Item 5 - Other Events" of any
current report on Form 8-K incorporated by reference in the Prospectus, in each
case, insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly summarize in all material
respects the matters referred to therein.
7. Such counsel does not know of any contracts or other documents which
are required to be filed as exhibits to the Company's most recent Form 10-K or
incorporated by reference under the Exchange Act or the rules and regulations
thereunder which have not been so filed or incorporated.
8. Such counsel is of the opinion that each document incorporated by
reference in the Prospectus or any further amendments or supplements thereto
(except for financial statements and schedules and other financial and
statistical data included therein as to which such counsel need not express any
opinion), when such document was filed with the Commission, complied as to form
in all material respects with the Exchange Act and the rules and regulations of
the Commission thereunder.
---------------------------
Such opinion shall include a statement to the effect that no facts have
come to the attention of such counsel that have caused him to believe (i) that
(except for financial statements and schedules and other financial and
statistical data included therein as to which such counsel need not express any
belief) the Registration Statement, when it became effective contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or (ii) that (except for financial statements and schedules and other financial
and statistical data included therein as to which such counsel need not express
any belief) the Prospectus as of its date and as of the date such opinion is
delivered contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
With respect to the foregoing statements, such counsel may state that
his belief is based upon his participation in the preparation of the
Registration Statement and the Prospectus (and any amendments or supplements
thereto) and review and discussion of the contents thereof and review of the
documents incorporated by reference therein, but are without independent check
or verification except with respect to paragraph 6 above.
18
EXHIBIT B
OPINION OF XXXXXX XXXXXXX XXXXXXXX & XXXXXX
The opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation, special counsel for the Company, to be delivered pursuant to
Section 5(c) of the Underwriting Agreement, shall be to the effect that:
1. The Company is validly existing as a corporation in good standing
under the laws of the State of Delaware and has the corporate power and
corporate authority to own its property and to conduct its business as described
in the Prospectus.
2. The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
4. The Indenture has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company, enforceable against the
Company in accordance with its terms.
5. The Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms; and
will be entitled to the benefits of the Indenture.
6. The shares of Common Stock initially issuable upon conversion of the
Securities have been duly authorized and reserved and, when issued upon
conversion of the Securities in accordance with the terms of the Securities and
the Indenture, will be validly issued, fully paid and non-assessable, and the
issuance of the Common Stock will not be subject to any preemptive or similar
rights under the Delaware General Corporation Law or otherwise known to us.
7. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement will not
contravene any provision of the certificate of incorporation or by-laws of the
Company; and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by the
Company of its obligations under the Underwriting Agreement, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities, or as otherwise
specifically contemplated by the terms of the Underwriting Agreement.
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8. The statements (i) in the Prospectus under the captions "Description
of Capital Stock," "Description of the Debt Securities," "Plan of Distribution"
"Description of Notes" and "Underwriting" and (ii) in the Registration Statement
under Item 15, in each case insofar as such statements constitute summaries of
the legal matters, documents or proceedings referred to therein, fairly
summarize in all material respects the matters referred to therein.
9. The statements in the Prospectus under the caption "Certain Federal
Income Tax Considerations," insofar as such statements constitute a summary of
the United States federal tax laws referred to therein, fairly summarize in all
material respects the matters referred to therein.
10. The Company is not required to register as an "investment company"
as such term is defined in the Investment Company Act of 1940, as amended.
----------------------
Such opinion shall include a statement to the effect that no facts have
come to the attention of such counsel that have caused it to believe (i) that
(except for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief) the
Registration Statement, at the time it became effective contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) that (except for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief) the
Prospectus when issued contained or as of the date such opinion is issued
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
With respect to the foregoing statements, such counsel may state that
such counsel's belief is based upon such counsel's participation in the
preparation of the Registration Statement and the Prospectus (and any amendments
or supplements thereto) and review and discussion of the contents thereof and
review of the documents incorporated by reference therein, but are without
independent check or verification.
20
EXHIBIT C
February 14, 2000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
The undersigned understand that you propose to enter into an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") with LSI Logic
Corporation, a Delaware corporation (the "COMPANY"), providing for the offering
(the "OFFERING") by X.X. Xxxxxx Securities Inc. (the "UNDERWRITER"), of
$500,000,000 aggregate principal amount of 4% Convertible Subordinated Notes due
2005 of the Company (the "SECURITIES"). The Securities will be convertible into
shares of common stock, par value $0.01 per share, of the Company (the "COMMON
STOCK").
To induce you to continue your efforts in connection with the Offering,
the undersigned hereby agrees that, without the prior written consent of the
Underwriter, the undersigned will not, during the period commencing on the date
hereof and ending 60 days after the date of the final Prospectus Supplement (as
defined in the Underwriting Agreement) relating to the Offering: (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock; or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to transactions relating to shares of Common Stock or other securities acquired
in open market transactions after the completion of the Offering.
In addition, the undersigned agrees that, without the prior written
consent of the Underwriter, it will not, during the period commencing on the
date hereof and ending 60 days after the date of the Prospectus Supplement, make
any demand for or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock.
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Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will be made only pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation between
the Company and the Underwriter.
Very truly yours,
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Name:
Title:
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(Address)
