Exhibit 4.1
$300,000,000
ON SEMICONDUCTOR CORPORATION
SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC
12% SENIOR SECURED NOTES DUE 2008
PURCHASE AGREEMENT
May 1, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇.▇. ▇▇▇▇▇▇ Securities Inc., and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
c/o Credit Suisse First Boston Corporation,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. 10010-3629
Dear Sirs:
1. Introductory. ON Semiconductor Corporation, a Delaware
corporation (the "COMPANY"), and Semiconductor Components Industries, LLC, a
Delaware limited liability company and a wholly owned subsidiary of the Company
("SCI LLC," and together with the Company, the "ISSUERS"), propose, subject to
the terms and conditions stated herein, to issue and sell to the several initial
purchasers named in Schedule A hereto (the "PURCHASERS") U.S.$300,000,000
principal amount of their 12% Senior Secured Notes due 2008 ("OFFERED
SECURITIES"), to be issued under an indenture, dated as of May 6, 2002 (the
"INDENTURE"), among the Issuers, the subsidiaries of the Company listed on the
signature pages hereof, as guarantors (collectively, the "GUARANTORS") and ▇▇▇▇▇
Fargo Bank Minnesota, National Association, as Trustee. The United States
Securities Act of 1933 is herein referred to as the "SECURITIES ACT."
Holders (including subsequent transferees) of the Offered
Securities will have the registration rights set forth in the registration
rights agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing
Date, in substantially the form of Exhibit I hereto, for so long as such Offered
Securities constitute "TRANSFER RESTRICTED SECURITIES" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Issuers and the Guarantors will agree to file with the Securities and
Exchange Commission (the "COMMISSION") under the circumstances set forth
therein, (i) a registration statement under the Securities Act (the "EXCHANGE
OFFER REGISTRATION STATEMENT") relating to the Issuers' 12% Senior Secured Notes
in a like aggregate principal amount as the Issuers issued under the Indenture,
identical in all material respects to the Offered Securities and registered
under the Securities Act (the "EXCHANGE SECURITIES" ), to be offered in exchange
for the Offered Securities (such offer to exchange being referred to as the
"EXCHANGE OFFER") and the Guarantees (as defined below) thereof and (ii) a shelf
registration statement pursuant to Rule 415 under the Securities Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange
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Offer Registration Statement, the "REGISTRATION STATEMENTS") relating to the
resale by certain holders of the Offered Securities and to use their reasonable
best efforts to cause such Registration Statements to be declared and remain
effective and usable for the periods specified in the Registration Rights
Agreement and to consummate the Exchange Offer. The Offered Securities and
Exchange Securities are referred to collectively as the "SECURITIES".
The Offered Securities and the guarantees of the Guarantors
relating to the Offered Securities (the "GUARANTEES") will be, on the Closing
Date (as hereinafter defined) or within a commercially reasonable time
thereafter, secured on a second-priority basis by certain collateral (the
"COLLATERAL") as described in the Offering Circular, and as will be more fully
described in and pursuant to the Intercreditor Agreement (the "INTERCREDITOR
AGREEMENT"), a certain Pledge Agreement (the "PLEDGE AGREEMENT"), a certain
Security Agreement (the "SECURITY AGREEMENT"), a certain Collateral Assignment
(the "COLLATERAL ASSIGNMENT" ), a certain Mortgage with respect to the Company's
Maricopa, Arizona facility (the "AZ MORTGAGE") and a certain Mortgage with
respect to the Company's East Greenwich, Rhode Island facility (the "RI
MORTGAGE," and together with the AZ Mortgage, the "MORTGAGES"), each to be dated
the Closing Date (as hereinafter defined) and delivered to ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as collateral agent (the "COLLATERAL AGENT"),
granting a second-priority security interest on the Collateral for the benefit
of the holders of the Offered Securities (collectively, the "SECURITY
DOCUMENTS").
The offering of the Offered Securities is part of the
refinancing transactions ("REFINANCING TRANSACTIONS") as described in the
Offering Circular, pursuant to which an Amendment dated as of April 17, 2002
(the "CREDIT AGREEMENT AMENDMENT"), to the Credit Agreement, dated as of August
4, 1999, as amended and restated as of April 3, 2000 (as further amended,
supplemented or otherwise modified from time to time, and together with the
Credit Agreement Amendment, the "CREDIT AGREEMENT"), has been entered into by
the Issuers with certain syndicate lenders. Pursuant to the Credit Agreement and
the Credit Agreement Amendment, which will become effective upon the closing of
the sale of the Offered Securities pursuant to this Agreement, and the security
documents relating thereto, such syndicate lenders and certain other lenders
(collectively, the "BANK LENDERS") do or will hold a first-priority security
interest in the Collateral.
Each of the Issuers and the Guarantors hereby agrees with the
several Purchasers as follows:
2. Representations, Warranties and Agreements of Each of the
Issuers and the Guarantors. Each of the Issuers and the Guarantors represents
and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have been
prepared by the Issuers. Such preliminary offering circular (the "PRELIMINARY
OFFERING CIRCULAR") and offering circular (the "OFFERING CIRCULAR"), as
supplemented as of the date of this Agreement, together with the documents
listed in Schedule B hereto and any other document approved by the Company for
use in connection with the contemplated resale of the Offered Securities are
hereinafter collectively referred to as the "OFFERING DOCUMENT." On the date of
this Agreement, the Offering Document does not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in
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the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the
Offering Document based upon written information furnished to the Issuers by any
Purchaser through Credit Suisse First Boston Corporation ("CSFBC") specifically
for use therein, it being understood and agreed that the only such information
is that described as such in Section 7(b) hereof. Except as disclosed in the
Offering Document, on the date of this Agreement, the Company's Annual Report on
Form 10-K most recently filed with the Securities and Exchange Commission (the
"COMMISSION") and all subsequent reports (collectively, the "EXCHANGE ACT
REPORTS") which have been filed by the Company with the Commission or sent to
stockholders pursuant to the Securities Exchange Act of 1934 (the "EXCHANGE
ACT") do not include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Such documents, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) Each of the Issuers has been duly incorporated or formed,
as applicable, and is an existing corporation or limited liability company, as
applicable, in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Offering Document; and each of the Issuers is duly
qualified to do business as a foreign corporation or limited liability company,
as applicable, 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 where the failure to so qualify or have such power or
authority would not, individually or in the aggregate, have a material adverse
effect on the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole ("MATERIAL
ADVERSE EFFECT").
(c) Each subsidiary of the Company has been duly incorporated
or formed and is an existing corporation or entity in good standing under the
laws of the jurisdiction of its incorporation or formation, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Offering Document; and each subsidiary of the Company is
duly qualified to do business as a foreign corporation or limited liability
company, as applicable, 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 where the failure to so qualify or have such power or
authority would not, individually or in the aggregate, have a Material Adverse
Effect; all of the issued and outstanding capital stock or membership interests
of each subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock or membership
interests of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from any security interest, mortgage, pledge, lien
or encumbrance, or defect (collectively, "LIENS"), except for Liens pursuant to
or contemplated by the Credit Agreement or the Indenture ("PERMITTED LIENS").
(d) The Indenture has been duly authorized by each of the
Issuers and the Guarantors, as applicable; the Offered Securities have been duly
authorized by each of the Issuers and the Guarantors, as applicable; and when
the Offered Securities are delivered and paid for pursuant to this Agreement on
the Closing Date (as defined below), the Indenture will have been duly executed
and delivered, the Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the description thereof
contained in the Offering Document and the Indenture (with respect to
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the Issuers and the Guarantors) and the Offered Securities (with respect to the
Issuers) will constitute valid and legally binding obligations of the Issuers
and the Guarantors, as applicable, enforceable in accordance with their 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.
(e) 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, the Security
Documents and the Registration Rights Agreement by the Issuers and the
Guarantors, as applicable, except (i) for the order of the Commission declaring
the Exchange Offer Registration Statement or the Shelf Registration Statement
(each as defined in the Registration Rights Agreement) effective or other such
consents, approvals, authorizations, orders or filings as may be required to be
obtained or made under the Securities Act and applicable state securities laws
as provided in the Registration Rights Agreement, (ii) for such filings or
recordings necessary to perfect the security interests created by the Security
Documents or (iii) where the failure to obtain such consent, approval,
authorization, order or filing would not have a Material Adverse Effect.
(f) The execution, delivery and performance of the Indenture,
this Agreement, the Security Documents and the Registration Rights Agreement,
and the issuance and sale of the Offered Securities and compliance with the
terms and provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, 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 each of the Issuers has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this Agreement, except
for such breaches, violations or defaults that would not have a Material Adverse
Effect.
(g) This Agreement and the Security Documents have been duly
authorized, executed and delivered by each of the Issuers and the Guarantors, as
applicable.
(h) Except as disclosed in the Offering Document, the Company
and its subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from Liens,
except Permitted Liens, that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and except
as disclosed in the Offering Document, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be made
thereof by them.
(i) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or modification of
any such certificate, authority or
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permit that, if determined adversely to the Company or any of its subsidiaries,
would have Material Adverse Effect.
(j) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Issuers, is imminent that might
have a Material Adverse Effect.
(k) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, the 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, or presently employed by them, and
have not received any notice of infringement of or conflict with asserted rights
of others with respect to any intellectual property rights that, individually or
in the aggregate, is reasonably likely to result in a Material Adverse Effect.
(l) Except as disclosed in the Offering Document, 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 Adverse Effect;
and the Company is not aware of any pending investigation which is reasonably
likely to lead to such a claim.
(m) Except as disclosed in the Offering Document, there is no
pending action, suit or proceeding against or affecting the Company, any of its
subsidiaries or any of their respective properties that, individually or in the
aggregate, is reasonably likely to result in a Material Adverse Effect, or would
materially and adversely affect the ability of the Issuers to perform their
obligations under the Indenture, this Agreement, the Security Documents or the
Registration Rights Agreement, or which is otherwise material in the context of
the sale of the Offered Securities; and, to the Company's knowledge, there is no
such action, suit or proceeding threatened.
(n) The financial statements included in the Offering Document
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and, except as otherwise disclosed in the Offering
Document, such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a
consistent basis.
(o) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included in the Offering
Document there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Offering Document, there has been no dividend or distribution of any kind
declared, paid or made by the Issuers on any class of its capital stock.
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(p) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
files reports with the Commission on the Electronic Data Gathering, Analysis,
and Retrieval (▇▇▇▇▇) system.
(q) Neither of the Issuers nor any of the Company's
subsidiaries 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 neither of the Issuers nor any of the Company's subsidiaries
is and, after giving effect to the offering and sale of the Offered Securities
and the application of the proceeds thereof as described in the Offering
Document, will be an "investment company" as defined in the Investment Company
Act.
(r) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the Exchange
Act or quoted in a U.S. automated inter-dealer quotation system.
(s) Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4 hereof and their compliance
with the agreements set forth herein, it is not necessary, in connection with
the issuance and sale of the Offered Securities to the Purchasers and the offer,
resale and delivery of the Offered Securities by the Purchasers in the manner
contemplated by this Agreement and the Offering Circular, to register the
Offered Securities under the Securities Act or to qualify the Indenture under
the United States Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT").
(t) Neither of the Issuers, the Guarantors, nor any of their
affiliates, nor any person acting on their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States or to any
U.S. person (as such terms are defined in Regulation S under the Securities Act)
the Offered Securities or any security of the same class or series as the
Offered Securities or (ii) has offered or will offer or sell the Offered
Securities (A) in the United States by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the Securities
Act or (B) with respect to any such securities sold in reliance on Rule 903 of
Regulation S, by means of any directed selling efforts within the meaning of
Rule 902(c) of Regulation S. The Issuers, the Guarantors, their affiliates and
any person acting on their behalf have complied and will comply with the
offering restrictions requirement of Regulation S. The Issuers have not entered
and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(u) PricewaterhouseCoopers LLP are independent public
accountants with respect to the Issuers as required by the Securities Act and
the rules and regulations of the Commission thereunder (the "SECURITIES ACT
REGULATIONS").
(v) The Guarantees have been duly and validly authorized by
the Guarantors, and the Guarantees, upon the execution and delivery of the
Indenture by the Issuers, the Guarantors and the Trustee and the due
authorization, execution and delivery of the related Offered Securities, will
constitute valid and binding obligations of the Guarantors, enforceable against
the Guarantors in accordance with their terms, except as such enforcement may be
subject to or limited by (i) bankruptcy, receivership,
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conservatorship, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
and remedies generally and (ii) general principles of equity (regardless of
whether such enforcement may be sought in a proceeding in equity or at law). The
Guarantees will conform in all material respects to the description thereof
contained in the Offering Circular.
(w) On and as of the Closing Date (as defined below) or within
a commercially reasonable time frame thereafter:
(i) The Pledge Agreement will constitute, for the ratable
benefit of the holders of the Offered Securities a legal, valid and
binding obligation of the pledgors party thereto, enforceable against
them in accordance with its terms, except as enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally,
(B) general equitable principles and (C) with respect to the pledge of
any capital stock of any Foreign Subsidiary (as defined herein),
applicable local law.
(ii) Upon delivery to JPMorgan Chase Bank, as bailee on behalf
of the Trustee, of the Equity Interests (as defined in the Pledge
Agreement) of SCI LLC and each subsidiary that is a corporation or
limited liability company, as the case may be, organized or formed, as
applicable, under the laws of any jurisdiction within the United States
(each, a "DOMESTIC SUBSIDIARY") and, with respect to Equity Interests
not constituting certificated securities or instruments, the filing of
appropriate Uniform Commercial Code ("UCC") financing statements in the
appropriate filing offices, the security interests granted pursuant to
the Pledge Agreement will constitute a valid, perfected second-priority
security interest on such pledged Equity Interest under New York law,
for the ratable benefit of the holders of the Offered Securities,
enforceable as such against all creditors of the respective pledgor and
to Persons purporting to purchase any such pledged Equity Interest from
the respective pledgor, except as the priority is subject to Permitted
Liens.
(iii) To the extent U.S. law is applicable, upon delivery to
JPMorgan Chase Bank, as bailee on behalf of the Trustee, of the Equity
Interests (as defined in the Pledge Agreement) of any first-tier
non-domestic subsidiary (each, a "FOREIGN SUBSIDIARY") and, with
respect to Equity Interests not constituting certificated securities or
instruments, the filing of appropriate UCC financing statements in the
appropriate filing offices, the security interests in the Equity
Interests of each Foreign Subsidiary granted pursuant to the Pledge
Agreement will constitute a valid, perfected second-priority security
interest on such pledged Equity Interest, for the ratable benefit of
the holders of the Offered Securities, enforceable as such against all
creditors of the respective pledgor and any Persons purporting to
purchase any such pledged Equity Interest from the respective pledgor,
except as the priority is subject to Permitted Liens.
(iv) Upon delivery to JPMorgan Chase Bank, as bailee on behalf
of the Trustee, of the Pledged Debt Securities (as defined in the
Pledge Agreement) the security interests in the Pledged Debt Securities
granted pursuant to the Pledge Agreement will constitute a valid,
perfected second-priority security interest on such Pledged Debt
Securities under New York law, for the ratable benefit of the
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holders of the Offered Securities, enforceable as such against all
creditors of the respective pledgor, except as the priority is subject
to Permitted Liens.
(v) Each Security Document will constitute a legal, valid and
binding obligation of the grantor party thereto, for the ratable
benefit of the holders of the Offered Securities, enforceable against
it in accordance with its terms, except as enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and (B) general equitable principles.
(vi) Except with respect to the Collateral located in any
facility which is not owned or leased by the Company or any of its
subsidiaries and upon filing by the Collateral Agent of (A) financing
statements, (B) any filings required with the United States Patent and
Trademark Office and (C) any filings required with the United States
Copyright Office, the security interests granted pursuant to the
Security Documents will constitute valid, perfected second-priority
security interests, on such Collateral described therein for the
ratable benefit of the holders of the Offered Securities, enforceable
as such against all creditors of any grantor and any Persons purporting
to purchase any such Collateral from any grantor (except purchasers of
Inventory (as defined in the Security Documents) in the ordinary course
of business), except as the priority is subject to Permitted Liens.
(vii) The Mortgages will be effective to grant a legal, valid
and enforceable mortgage lien on all of the mortgagor's right, title
and interest in the mortgaged properties thereunder. When the Mortgages
are duly recorded in the proper recorders' offices and the mortgage
recording fees and taxes in respect thereof are paid and compliance is
otherwise had with the formal requirements of state law applicable to
the recording of real estate mortgages generally, each such Mortgage
shall constitute a validly perfected, second-priority security interest
in the related mortgaged property, for the ratable benefit of the
holders of the Offered Securities, subject only to the encumbrances and
exceptions to title expressly set forth therein and except as (A)
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and (ii) general equitable principles and
(B) the priority is subject to Permitted Liens.
(viii) (A) Neither of the Issuers nor any of the Guarantors
will hold any Accounts (as defined in the Security Agreement) with
respect to which the Collateral Agent does not hold a perfected,
second-priority security interest, other than any such Accounts, if
any, which the Bank Lenders do not or will not hold a first-priority
security interest in.
(B) Neither of the Issuers nor any of the Guarantors maintains
any Inventory (as defined in the Security Agreement) with respect to
which the Collateral Agent does not possess a perfected,
second-priority security interest, other than any such Inventory, if
any, which the Bank Lenders do not or will not hold a first-priority
security interest in.
(ix) It is the ordinary business practice of each of the
Issuers and the Guarantors to file with the United States Patent and
Trademark Office for registration or recordation, as applicable, (A) a
completed application for the
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registration of each trademark and patent owned by it which is material
to the business of such Issuer or Guarantor and (B) an appropriate
assignment to either of the Issuers or any of the Guarantors of the
interest acquired by it in any trademark and patent which is material
to the business of the Company and its subsidiaries taken as a whole.
(x) The mortgaged properties under the Mortgages and the
buildings and improvements thereon comply in all material respects with
all applicable setback requirements, zoning codes, ordinances, laws and
regulations, except where non-compliance would not, individually or in
the aggregate, be likely to have a Material Adverse Effect.
(xi) There are no pending or threatened condemnation
proceedings, lawsuits, or administrative actions relating to the
mortgaged properties under the Mortgages which would have, individually
or in the aggregate, a Material Adverse Effect.
(x) The entities listed on Schedule C hereto are the only
subsidiaries, direct or indirect, of the Company.
(y) On the Closing Date, the Indenture will conform in all
material respects to the requirements of the TIA, and the rules and regulations
of the Commission applicable to an indenture which is qualified thereunder.
(z) On the Closing Date, the Exchange Securities will have
been duly authorized by the Issuers; and when the Exchange Securities are
issued, executed and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, the Exchange Securities will be entitled to the
benefits of the Indenture and will be the valid and legally binding obligations
of the Issuers and the Guarantors, enforceable in accordance with their 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.
(aa) The Guarantee of the Exchange Securities by each
Guarantor has been duly authorized by such Guarantor; and, when issued, will
have been duly executed and delivered by each such Guarantor and will conform to
the description thereof contained in the Offering Document. When the Exchange
Securities have been issued, executed and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the Guarantee of each Guarantor
will constitute valid and legally binding obligations of such Guarantor,
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.
(bb) The Registration Rights Agreement has been duly
authorized by each of the Issuers and the Guarantors and, on the Closing Date,
will have been duly executed and delivered by each of the Issuers and the
Guarantors. When the Registration Rights Agreement has been duly executed and
delivered, the Registration Rights Agreement will be a valid and binding
agreement of each of the Issuers and the Guarantors, enforceable against each of
the Issuers and Guarantors in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
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of general applicability relating to or affecting creditors' rights and to
general equity principles. On the Closing Date, the Registration Rights
Agreement will conform as to legal matters to the description thereof in the
Offering Circular.
(cc) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument, except for
such defaults that, singularly or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
their respective property is bound.
(dd) There are no contracts, agreements or understandings
between the Issuers or any Guarantor and any person granting such person the
right to require the Issuers or such Guarantor to file a registration statement
under the Securities Act with respect to any debt securities of the Issuers or
such Guarantor or to require the Issuers or such Guarantor to include such
securities with the Securities and Guarantees registered pursuant to any
Registration Statement, other than the Registration Rights Agreement
contemplated hereunder.
(ee) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale of the
Offered Securities to violate Regulation T, Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System.
(ff) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act (i) has imposed (or has informed the Issuers or any Guarantor
that it is considering imposing) any condition (financial or otherwise) on
either of the Issuers' or any Guarantor's retaining any rating assigned to
either of the Issuers or any Guarantor, any securities of either of the Issuers
or any Guarantor or (ii) has indicated to the Issuers or any Guarantor that it
is considering (A) the downgrading, suspension, or withdrawal of, or any review
for a possible change that does not indicate the direction of the possible
change in, any rating so assigned or (B) any change in the outlook for any
rating of either of the Issuers, any Guarantor or any securities of either of
the Issuers or any Guarantor.
(gg) No form of general solicitation or general advertising
(as defined in Regulation D under the Securities Act) was used by the Issuers,
the Guarantors or any of their respective representatives (other than the
Purchasers, as to whom the Issuers and the Guarantors make no representation) in
connection with the offer and sale of the Offered Securities contemplated
hereby, including, but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising. No securities of the same
class as the Offered Securities have been issued and sold by the Issuers within
the six-month period immediately prior to the date hereof.
(hh) The Offered Securities offered and sold in reliance on
Regulation S have been and will be offered and sold only in offshore
transactions.
11
(ii) The sale of the Offered Securities pursuant to Regulation
S is not part of a plan or scheme to evade the registration provisions of the
Securities Act.
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 herein set forth, the Issuers severally and
jointly agree to sell to the Purchasers, and the Purchasers agree, severally and
not jointly, to purchase from the Issuers, at a purchase price of 94.237195% of
the principal amount thereof plus accrued interest from May 1, 2002 to the
Closing Date (as defined below), the respective principal amounts set forth
opposite the names of the several Purchasers in Schedule A hereto.
The Issuers will deliver against payment of the purchase price
the Offered Securities in the form of one or more permanent global Securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Purchasers in Federal (same day) funds by
official check or checks or wire transfer to a bank account drawn to the order
of ON Semiconductor Corporation or as the Company may direct at the office of
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("CGSH"), One Liberty Plaza, New York, NY
10006 at 10:00 A.M. (New York time), on May 6, 2002, 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 "CLOSING DATE," against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Securities. The Global Securities will be made available
for checking at the above office of CGSH at least 24 hours prior to the Closing
Date.
4. Representations by Purchasers; Resale by Purchasers. (a)
Each Purchaser severally represents and warrants to the Issuers that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S or pursuant to an
exemption from the registration requirements of the Securities Act. Each
Purchaser severally represents and agrees that it has offered and sold the
Offered Securities, and will offer and sell the Offered Securities (i) as part
of its distribution at any time and (ii) otherwise until 40 days after the later
of the commencement of the offering and the Closing Date, only in accordance
with Rule 903 or Rule 144A under the Securities Act ("RULE 144A"). Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting on its or
their behalf, have engaged or will engage in any directed selling efforts with
respect to the Offered Securities, and such Purchaser, its affiliates and all
persons acting on its or their behalf have complied and will comply with the
offering restrictions requirement of Regulation S. Each Purchaser severally
agrees that, at or prior to confirmation of sale of the Offered Securities,
other than a sale pursuant to Rule 144A, such Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Offered Securities from it during the restricted
period a confirmation or notice to substantially the following effect:
12
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the commencement
of the offering and the closing date, except in either case in
accordance with Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this subsection (b) have the meanings given to
them by Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other Purchasers or
with the prior written consent of the Issuers.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United States by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including, but not limited to
(i) any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees
that (i) it has not offered or sold and prior to the expiry of a period of six
months from the Closing Date, will not offer or sell any Offered Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services and Markets Act 2000 ("FSMA")
with respect to anything done by it in relation to the Offered Securities in,
from or otherwise involving the United Kingdom; and (iii) it has only
communicated and caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the FSMA) received by it in connection with
the issue or sale of any Offered Securities in circumstances in which section
21(1) of the FSMA does not apply to the Issuers or the Guarantors.
(f) Each Purchaser, severally and not jointly, agrees that,
prior to or simultaneously with the confirmation of sale by such Purchaser to
any purchaser of any of the Offered Securities purchased by such Purchaser from
the Issuers pursuant hereto, such Purchaser shall furnish to that purchaser a
copy of the Offering Circular (and any amendment or supplement thereto that the
Issuers shall have furnished to such Purchaser
13
prior to the date of such confirmation of sale). In addition to the foregoing,
each Purchaser acknowledges and agrees that the Issuers and, for purposes of the
opinions to be delivered to the Purchasers pursuant to Sections 6(c) and (d),
counsel for the Issuers and the Purchasers, respectively, may rely upon the
accuracy of the representations and warranties of the Purchasers and their
compliance with the agreements contained in this Section 4, and each Purchaser
hereby consents to such reliance.
5. Certain Agreements of the Issuers and the Guarantors. Each
of the Issuers and the Guarantors agrees with the several Purchasers that:
(a) The Issuers will furnish a copy to CSFBC promptly of any
proposal to amend or supplement the Offering Document and will not effect such
amendment or supplementation to which CSFB shall reasonably object by notice to
the Issuers after a reasonable period to review. If, at any time prior to the
completion of the resale of the Offered Securities by the Purchasers, any event
occurs as a result of which the Offering Document as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, the
Issuers promptly will notify CSFBC of such event and promptly will prepare, at
their own expense, an amendment or supplement which will correct such statement
or omission. Neither CSFBC's consent to, nor the Purchasers' delivery to
offerees or investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(b) The Issuers will furnish to CSFBC copies of any
preliminary offering circular, the Offering Document and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as CSFBC reasonably requests, and the Issuers will furnish to CSFBC
on the date hereof three copies of the Offering Document signed by a duly
authorized officer of each of the Issuers, one of which will include the
independent accountants' reports therein manually signed by such independent
accountants. At any time when the Company is not subject to Section 13 or 15(d)
of the Exchange Act, the Company will promptly furnish or cause to be furnished
to CSFBC (and, upon request, to each of the other Purchasers) and, upon request
of holders and prospective purchasers of the Offered Securities, to such holders
and purchasers, copies of the information required to be delivered to holders
and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. The Issuers will pay the expenses of printing and
distributing to the Purchasers all such documents.
(c) The Issuers will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States and Canada
as CSFBC designates and will continue such qualifications in effect so long as
required for the resale of the Offered Securities by the Purchasers, provided
that neither of the Issuers will be required to qualify as a foreign corporation
or to file a general consent to service of process in any such jurisdiction.
(d) During the period of two years after the Closing Date, the
Issuers will, upon request, furnish to CSFBC, each of the other Purchasers and
any holder of Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
14
(e) During the period of two years after the Closing Date, the
Issuers will not, and will not permit any of their affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Offered Securities that
have been reacquired by any of them, except for Offered Securities purchased by
the Issuers or any of their affiliates and resold in a transaction registered
under the Securities Act.
(f) During the period of two years after the Closing Date,
neither of the Issuers will be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to
be registered under Section 8 of the Investment Company Act.
(g) The Issuers will pay all expenses incidental to the
performance of their obligations under this Agreement, the Indenture, the
Security Documents and the Registration Rights Agreement, including (i) the fees
and expenses of the Trustee and the Collateral Agent and their professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered Securities and, as
applicable, the Exchange Securities (as defined in the Registration Rights
Agreement), the preparation and printing of this Agreement, the Registration
Rights Agreement, the Offered Securities, the Indenture, the Offering Document
and amendments and supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities and as applicable,
the Exchange Securities; (iii) the cost of listing the Offered Securities and
qualifying the Offered Securities for trading in The Portal(SM) Market
("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising
approved by the Issuers in connection with the issue of the Offered Securities
(v) any expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities or the Exchange
Securities for sale under the laws of such jurisdictions in the United States
and Canada as CSFBC designates and the printing of memoranda relating thereto,
(vi) any fees charged by investment rating agencies for the rating of the
Securities or the Exchange Securities, (vii) the costs of preparing the Security
Documents and perfecting the security interests in the Collateral, and (viii)
expenses incurred in distributing preliminary offering circulars and the
Offering Document (including any amendments and supplements thereto) to the
Purchasers. The Issuers will also pay or reimburse the Purchasers (to the extent
incurred by them) for all travel expenses of the Purchasers and the Issuers'
officers and employees and any other expenses of the Purchasers and the Issuers
in connection with attending or hosting meetings with prospective purchasers of
the Offered Securities from the Purchasers; provided, however, that the cost of
the rental of the aircraft used by the Purchasers and the Issuers' officers and
employees in connection with their attendance at such meetings shall be shared
equally between the Issuers and the Purchasers with the Issuers paying half of
such cost and the Purchasers paying the other half of such cost. If this
Agreement is terminated pursuant to Section 8 of this Agreement by reason of the
default of one or more of the Purchasers, the Issuers and the Guarantors shall
not be obligated to reimburse any defaulting Purchaser on account of such
expenses.
(h) In connection with the offering, until CSFBC shall have
notified the Issuers and the other Purchasers of the completion of the resale of
the Offered Securities, neither of the Issuers nor any of their affiliates has
or will, either alone or with one or more other persons, bid for or purchase for
any account in which they or any of their affiliates has a beneficial interest
any Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither of the Issuers nor any of their affiliates will
15
make bids or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Offered Securities.
(i) For a period of 180 days after the date of the initial
offering of the Offered Securities by the Purchasers, the Issuers will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any United States dollar-denominated debt securities issued or
guaranteed by the Company or any of its subsidiaries and having a maturity of
more than one year from the date of issue in the United States in a public
offering or a Rule 144A offering, without the prior written consent of CSFBC;
provided, however, that the foregoing shall not apply to debt securities which
are convertible into equity securities or are equity linked debt securities or
equity securities. Neither the Company nor any of its subsidiaries will at any
time offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale, pledge,
contract or disposition would cause the exemption afforded by Section 4(2) of
the Securities Act or the safe harbor of Regulation S thereunder to cease to be
applicable to the offer and sale of the Offered Securities.
(j) The Issuers will use the net proceeds received by them
from the sale of the Offered Securities in the manner specified in the Offering
Circular under the heading "Use of Proceeds."
(k) The Issuers will use their best efforts to have the
Offered Securities admitted to trading in PORTAL.
6. Conditions of the Obligations of the Purchasers. The
obligations of the several Purchasers to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Issuers and the Guarantors herein, to the accuracy of the
statements of each of the Issuers and the Guarantors and their respective
officers made pursuant to the provisions hereof, to the performance by each of
the Issuers and the Guarantors of its obligations hereunder and to the following
additional conditions precedent:
(a) On the date of this Agreement and on the Closing Date
PricewaterhouseCoopers LLP shall have furnished to the Purchasers, at the
request of the Issuers, letters, dated the respective dates of delivery thereof
and addressed to the Purchasers, in customary form and covering matters of the
type customarily covered in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Preliminary Offering Circular and the Offering Circular as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority in
interest of the Purchasers including CSFBC, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company 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
16
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) or any announcement that the Company has been
placed on negative outlook; (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of a majority in interest of the Purchasers including
CSFBC, be likely to prejudice materially the success of the proposed issue, sale
or distribution of the Offered Securities, whether in the primary market or in
respect of dealings in the secondary market, (iv) any material suspension or
material limitation of trading in securities generally on the New York Stock
Exchange, or any material setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (v) any general banking moratorium
declared by U.S. Federal or, New York authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States or (vii)
any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of a
majority in interest of the Purchasers including CSFBC, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering or sale of
and payment for the Offered Securities.
(c) On the Closing Date, each of the following (i) opinion of
CGSH, counsel to the Issuers, (ii) letter of CGSH, (iii) opinion of ▇▇▇▇▇▇ ▇.
▇▇▇▇, general counsel to the Issuers, (iv) opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as special
Arizona counsel to the Issuers, and (v) opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
as special Rhode Island counsel to the Issuers, shall have been furnished to the
Purchasers, addressed to the Purchasers and dated the Closing Date, each in form
and substance reasonably satisfactory to the Purchasers.
(d) The Purchasers shall have received from Cravath, Swaine &
▇▇▇▇▇ ("CS&M"), counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the validity of
the Offered Securities, the Offering Circular, the exemption from registration
for the offer and sale of the Offered Securities by the Issuers to the several
Purchasers and the resales by the several Purchasers as contemplated hereby and
other related matters as CSFBC may require, and the Issuers shall have furnished
to such counsel such documents as they request for the purpose of enabling them
to pass upon such matters
(e) The Purchasers shall have received a certificate, dated
the Closing Date and executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as chief executive officer,
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as chief financial officer, in which such officers, to
the best of their knowledge after reasonable investigation, shall state that, on
the date hereof and on and as of the Closing Date, the representations and
warranties of each of the Issuers and Guarantors in this Agreement are true and
correct, that each of the Issuers and Guarantors has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the dates of
the most recent financial statements in the Offering Document there has been no
material adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole.
17
(f) On the Closing Date, the Purchasers shall have received a
counterpart of the Registration Rights Agreement which shall have been executed
and delivered by duly authorized officers of the Issuers and the Guarantors.
(g) On the Closing Date, the Indenture shall have been duly
executed and delivered by the Issuers, the Guarantors and the Trustee, and the
Offered Securities shall have been duly executed and delivered by the Issuers
and duly authenticated by the Trustee.
(h) The Offered Securities shall have been approved by the
NASD for trading in the PORTAL market.
(i) On the Closing Date or within a commercially reasonable
time frame thereafter, the following documents and instruments relating to the
Collateral shall have been delivered to the Purchasers:
(1) a copy of the financing statements and such other
instruments, including UCC financing statements, necessary to perfect
the lien of, and the security interests to be created by, the Security
Documents; and
(2) a receipt executed on behalf of JPMorgan Chase Bank as the
Administrative Agent acknowledging receipt in the State of New York of
the certificates representing the pledged capital stock or other equity
interests, as the case may be.
(j) The Purchasers shall have received or shall receive within
a commercially reasonable time frame, in respect of the Mortgages, a mortgagee's
title policy of title insurance or marked-up title commitment for such
insurance. Such policy or title commitment shall (i) be in an amount equal to
the amount of title insurance coverage already provided to the Bank Lenders in
respect of their security interest in the properties covered by such Mortgages;
(ii) insure that the Mortgages insured thereby create a valid second lien on the
property covered by such Mortgage, free and clear of all liens, defects and
encumbrances other than Permitted Liens; (iii) provide affirmative mechanic's
lien coverage; (iv) name the Collateral Agent, for the benefit of the holders of
the Offered Securities, as the insured thereunder; (v) be in the form of ALTA
Loan Policy-1992; and (vi) contain revolving endorsements and such applicable
endorsements and effective coverage as contained in the title insurance policies
delivered in connection with the Credit Agreement.
(k) On or prior to the Closing Date, CSFBC shall have received
the results of lien searches, conducted by a search service reasonably
satisfactory to CSFBC, and CSFBC shall be satisfied that no liens are
outstanding on the property or assets of the Issuers and the Guarantors, other
than any such Liens (i) which constitute Permitted Liens or (ii) as to which
CSFBC has received documentation reasonably satisfactory to it evidencing the
termination of such Liens.
(l) On or prior to the Closing Date, the Credit Agreement
Amendment shall be effective on the terms described in the Offering Document.
(m) On or prior to the Closing Date, a copy of each of the
duly executed Security Documents shall have been delivered to the Purchasers.
18
Documents described as being "in the agreed form" are
documents which are in the forms which have been initialed for the purpose of
identification by CS&M, copies of which are held by the Company and CSFBC, with
such changes as the Company and CSFBC may approve.
The Issuers will furnish the Purchasers with such conformed
copies of such opinions, certificates, letters and documents as the Purchasers
reasonably request. CSFBC may in its sole discretion waive on behalf of the
Purchasers compliance with any conditions to the obligations of the Purchasers
hereunder.
7. Indemnification and Contribution. (a) Each of the Issuers
and Guarantors will jointly and severally indemnify and hold harmless each
Purchaser, its partners, directors and officers and each person, if any, who
controls such Purchaser within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Purchaser may become subject, under the Securities Act or the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or any related preliminary
offering circular or the Exchange Act Reports, or arise out of or are based upon
the omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, including any losses, claims, damages or
liabilities arising out of or based upon the Issuers' failure to perform their
obligations under Section 5(a) of this Agreement, and will reimburse each
Purchaser for any legal or other expenses reasonably incurred by such Purchaser
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Issuers and Guarantors will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Issuers by any Purchaser through CSFBC specifically
for use therein, it being understood and agreed that the only such information
consists of the information described as such in subsection (b) below.
(b) Each Purchaser will severally and not jointly indemnify
and hold harmless each of the Issuers, their directors and officers and each
person, if any, who controls the Issuers within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities to which
either of the Issuers may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Issuers by such Purchaser through CSFBC specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Issuers in connection with investigating or defending any such loss, claim,
damage, liability or action as such
19
expenses are incurred, it being understood and agreed that the only such
information furnished by any Purchaser consists of the following information in
the Offering Circular furnished on behalf of each Purchaser: under the caption
"Plan of Distribution" paragraphs 3, 6, 10 and 11, and the third sentence of
paragraph 9 and the second and third sentences of paragraph 13; provided,
however, that the Purchasers shall not be liable for any losses, claims, damages
or liabilities arising out of or based upon the Issuers' failure to perform its
obligations under Section 5(a) of this Agreement.
(c) 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) or (b) 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) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
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 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation unless (i) the indemnifying
party has failed within a reasonable amount of time to retain counsel reasonably
satisfactory to the indemnified party; (ii) the indemnified party shall have
reasonably concluded that there may be legal defenses available to it that are
different from or in addition to those available to the indemnifying party; or
(iii) the named parties in any such proceeding (included any impleaded parties)
include both the indemnifying party and the indemnified party and
representations of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes (i)
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 failure to act by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuers and Guarantors on the one hand and the Purchasers on the other from
the offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuers and the Guarantors on the one
hand and the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Issuers and the Guarantors on the one hand and the Purchasers on
20
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 Issuers and the
Guarantors bear to the total discounts and commissions received by the
Purchasers from the Issuers under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers and Guarantors or
the Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Purchaser shall be required to
contribute any amount in excess of the amount by which the total discounts, fees
and commissions received by such Purchaser exceeds the amount of any damages
which such Purchaser has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion to
their respective purchase obligations and not joint.
(e) The obligations of the Issuers and Guarantors under this
Section shall be in addition to any liability which the Issuers and Guarantors
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Purchaser within the meaning of the Securities
Act or the Exchange Act; and the obligations of the Purchasers under this
Section shall be in addition to any liability which the respective Purchasers
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Issuers within the meaning of the Securities
Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers
default in their obligations to purchase Offered Securities hereunder and the
aggregate principal amount of Offered Securities that such defaulting Purchaser
or Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Issuers for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFBC and the Company 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 Purchaser or the
Issuers, except as provided in Section 9. As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuers and Guarantors or their officers and of the several
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any
21
investigation, or statement as to the results thereof, made by or on behalf of
any Purchaser, either of the Issuers and any Guarantors 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 for any
reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Issuers and the Guarantors shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Issuers and Guarantors and the Purchasers pursuant to Section
7 shall remain in effect. If the purchase of the Offered Securities by the
Purchasers is not consummated for any reason other than solely because of the
occurrence of any event specified in clause (iii), (iv), (v), (vi) or (vii) of
Section 6(b), the Issuers and the Guarantors will reimburse the Purchasers for
all out-of-pocket expenses (including 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 Purchasers will be mailed, delivered or telegraphed and
confirmed to the Purchasers, c/o Credit Suisse First Boston Corporation, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. 10010-3629, Attention: Transactions Advisory
Group, or, if sent to the Issuers, will be mailed, delivered or telegraphed and
confirmed to it at ON Semiconductor Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; provided, however, that any
notice to a Purchaser pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Issuers as if such
holders were parties thereto.
12. Representation of Purchasers. You will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by you will be binding upon all the Purchasers.
13. 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.
14. 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 Issuers 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, as its authorized agent in the Borough of
Manhattan in The City of New York upon which process may be served in any such
suit or proceeding, and agrees that service of process upon such agent, and
written notice of said service to the Issuers, by the person serving the same to
the address provided in Section 10, shall be deemed in every respect effective
service of process upon the Issuers in any such suit or proceeding. The Issuers
further agree to take any and all action as may be necessary to maintain such
designation
22
and appointment of such agent in full force and effect for a period of seven
years from the date of this Agreement.
23
If the foregoing is in accordance with the Purchasers'
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Issuers and the several Purchasers in accordance with its terms.
Very truly yours,
ON SEMICONDUCTOR CORPORATION,
SEMICONDUCTOR COMPONENTS INDUSTRY, LLC,
SCG (MALAYSIA SMP) HOLDING CORPORATION,
SCG (CZECH) HOLDING CORPORATION,
SCG (CHINA) HOLDING CORPORATION,
SEMICONDUCTOR COMPONENTS INDUSTRIES
PUERTO RICO, INC.,
SCG INTERNATIONAL DEVELOPMENT LLC,
SEMICONDUCTOR COMPONENTS INDUSTRIES OF
RHODE ISLAND, INC.,
SEMICONDUCTOR COMPONENTS INDUSTRIES
INTERNATIONAL OF RHODE ISLAND, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Title: Director
Acting on behalf of itself
and as the Representative
of the several Purchasers
SCHEDULE A
PRINCIPAL AMOUNT OF
MANAGER OFFERED SECURITIES
------- ------------------
Credit Suisse First Boston Corporation $127,500,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co Incorporated 97,500,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 37,500,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 37,500,000
------------
Total $300,000,000
============
SCHEDULE B
NONE
SCHEDULE C
SCG (CZECH) HOLDING CORPORATION {DELAWARE}
Terosil a.s. [JV] {Czech Republic}
Tesla Sezam a.s. [JV] {Czech Republic}
SCG (CHINA) HOLDING CORPORATION {DELAWARE}
Leshan-Phoenix Semiconductor Company Limited [JV] {Leshan, China}
SCG (MALAYSIA SMP) HOLDING CORPORATION {DELAWARE}
SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC {DELAWARE}
Semiconductor Components Industries of Rhode Island, Inc. {Rhode Island}
Semiconductor Components Industries International of Rhode
Island, Inc. {Rhode Island}
Semiconductor Components Industries Puerto Rico, Inc. {Delaware}
Slovakia Electronics Industries, a.s. {Slovak Republic}
SCG International Development, LLC {Delaware}
SCG Malaysia Holdings Sdn. Bhd. {Malaysia}
SCG Industries Malaysia Sdn. Bhd. {Malaysia}
ON Semiconductor Technology Malaysia Sdn. Bhd. {Malaysia}
Semiconductor Components Industries (Thailand) Limited {Thailand}
SCG Mexico, S.A. de C.V. {Mexico}
ON Semiconductor Technology Japan Ltd. {Japan}
SCG Philippines, Incorporated {Philippines}
SCG Asia Capital Pte. Ltd. {Malaysia}
SCG Czech Design Center s.r.o. {Czech Republic}
ON Semiconductor Hong Kong Design Limited {Hong Kong, China}
ON Semiconductor Japan Ltd. {Japan}
ON Semiconductor Design (Shanghai) Limited {China}
ON Semiconductor Trading Ltd. {Bermuda}
ON Semiconductor Denmark ApS {Denmark}
ON Semiconductor Hong Kong Logistics Limited {Hong
Kong, China}
SCG Hong Kong SAR Limited {Hong Kong, China}
Semiconductor Components Industries Singapore Pte Ltd
{Singapore}
SCG Korea Ltd. {Korea}
ON Semiconductor Canada Trading Corporation {Canada}
SCG do Brasil Ltda. {Brazil}
SCG Holding (Netherlands) B.V. {Netherlands}
ON Semiconductor Germany GmbH {Germany}
SCG France SAS {France}
ON Semiconductor AB {Sweden}
ON Semiconductor Mexico Trading S. de ▇. ▇. de C. V.
{Mexico}
SCG Italy S.r.l. {Italy}
ON Semiconductor Limited {United Kingdom}
Semiconductor Components Industries
UK Limited {United Kingdom}
{ } Denotes jurisdiction
