EXHIBIT 4.17
$200,000,000
ON SEMICONDUCTOR CORPORATION
SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC
12% SENIOR SECURED NOTES DUE 2010
PURCHASE AGREEMENT
February 26, 2003
XXXXXXX XXXXX XXXXXX INC.,
Credit Suisse First Boston LLC,
X.X. Xxxxxx Securities Inc., and
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 10013
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.$200,000,000
principal amount of their 12% Senior Secured Notes due 2010 ("OFFERED
SECURITIES"), to be issued under an indenture, dated as of March 3, 2003 (the
"INDENTURE"), among the Issuers, the subsidiaries of the Company listed on the
signature pages hereof, as guarantors (collectively, the "GUARANTORS") and Xxxxx
Fargo Bank Minnesota, National Association, as trustee (the "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
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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 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 first-priority basis by certain collateral (the
"COLLATERAL") as described in the Offering Memorandum, and as will be more fully
described in and pursuant to (i) the Collateral Sharing Agreement (the
"COLLATERAL SHARING AGREEMENT") to be entered into among the Issuers, JPMorgan
Chase Bank, as collateral agent (the "COLLATERAL AGENT ") and the Trustee, (ii)
the Amended and Restated Credit Agreement (as defined below), (iii) a certain
Pledge Agreement (the "PLEDGE AGREEMENT"), (iv) a certain Security Agreement
(the "SECURITY AGREEMENT"), (v) certain Uniform Commercial Code financing
statements (the "FINANCING STATEMENTS"), (vi) a certain Collateral Assignment
(the "COLLATERAL ASSIGNMENT"), (vii) a certain Deed of Trust with respect to the
Company's Maricopa, Arizona facility (the "AZ MORTGAGE") and (viii) 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
relating to SCI LLC's existing credit agreement which is being amended and
restated as described below, and each to be amended by the Issuers and the Bank
Lenders (as defined below) on or prior to the closing of the sale of the Offered
Securities pursuant to this Agreement to provide for the granting of a
first-priority security interest in the Collateral for the benefit of the
holders of the Offered Securities and the Bank Lenders (as defined below) on an
equal and ratable basis (collectively, as so amended, the "SECURITY DOCUMENTS").
The offering of the Offered Securities is part of the
refinancing transactions ("REFINANCING TRANSACTIONS") as described in the
Offering Memorandum, pursuant to which an Amendment and Restatement Agreement
dated as of February 14, 2003 (the "Amendment and Restatement Agreement") was
entered into by the Issuers and certain lenders in connection with the Credit
Agreement, dated as of August 4, 1999,
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as amended and restated as of April 3, 2000 (as further amended, supplemented or
otherwise modified from time to time, and together with the Amendment and
Restatement Agreement, the "AMENDED AND RESTATED CREDIT AGREEMENT") by the
Issuers with certain syndicate lenders. Pursuant to the Amendment and
Restatement Agreement, which will have become effective on or prior to the
closing of the sale of the Offered Securities pursuant to this Agreement, and
the Collateral Sharing Agreement and the Security Documents, such syndicate
lenders (collectively, the "BANK LENDERS") will share a first-priority security
interest in the Collateral equally and ratably with the holders of the
Securities.
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 memorandum and an offering
memorandum relating to the Offered Securities to be offered by the Purchasers
have been prepared by the Issuers. Such preliminary offering memorandum (the
"PRELIMINARY OFFERING MEMORANDUM") and offering memorandum (the "OFFERING
MEMORANDUM"), as supplemented as of the date of this Agreement and including any
and all exhibits thereto and any information incorporated by reference therein,
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 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
Xxxxxxx Xxxxx Xxxxxx Inc. 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.
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The documents incorporated by reference in the Preliminary
Offering Memorandum and the Offering Memorandum, when filed with the Commission,
did not and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading and conformed or will conform 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 Amended and Restated Credit Agreement or the Indenture
and Liens contemplated by the indenture for the Senior Secured Notes due 2008
(the "2008 NOTES INDENTURE") dated as of May 6, 2002, among the Issuers, the
Guarantors and Xxxxx Fargo Bank Minnesota, National Association, as trustee
(collectively, the "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
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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 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 Collateral
Sharing 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 Collateral Sharing 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, the Collateral Sharing Agreement and the
Security Documents have been duly authorized, executed and delivered by each of
the Issuers and the Guarantors, as applicable.
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(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 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.
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(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.
(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 (XXXXX) 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.
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(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 Memorandum, 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, 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 Memorandum.
(w) On and as of the Closing Date (as defined below) or within
a commercially reasonable time frame thereafter:
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(i) The Pledge Agreement will constitute, for the ratable
benefit of the holders of the Offered Securities and the Bank Lenders,
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 the Collateral Agent 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 UCC financing
statements in the appropriate filing offices, the security interests
granted pursuant to the Pledge Agreement will constitute a valid,
perfected first-priority security interest on such pledged Equity
Interest under New York law, for the equal and ratable benefit of the
holders of the Offered Securities and the Bank Lenders, 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
the Collateral Agent 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
first-priority security interest on such pledged Equity Interest, for
the equal and ratable benefit of the holders of the Offered Securities
and the Bank Lenders, 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 the Collateral Agent 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 first-priority security interest on
such Pledged Debt Securities under New York law, for the equal and
ratable benefit of the holders of the Offered Securities and the Bank
Lenders, enforceable as such against all creditors of the respective
pledgor, except as the priority is subject to Permitted Liens.
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(v) Each Security Document will constitute a legal, valid and
binding obligation of the grantor party thereto, for the equal and
ratable benefit of the holders of the Offered Securities and the Bank
Lenders, 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 first-priority
security interests, on such Collateral described therein for the equal
and ratable benefit of the holders of the Offered Securities and the
Bank Lenders, 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, first-priority security interest
in the related mortgaged property, for the equal and ratable benefit of
the holders of the Offered Securities and the Bank Lenders, 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,
first-priority security interest, other than such Accounts, if any, in
which the Bank Lenders do not or will not hold a first-priority
security interest.
(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, first-priority
security interest, other
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than any such Inventory, if any, in which the Bank Lenders do not or
will not hold a first-priority security interest.
(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 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,
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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 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
Memorandum.
(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) Except for the Registration Rights Agreement dated May 6,
2002 among the Issuers, the Guarantors and the Initial Purchasers identified
therein and delivered in connection with the 2008 Notes Indenture, 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.
13
(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.
(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 92.717% of the
principal amount thereof plus accrued interest from February 26, 2003 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
14
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, Xxxxx & Xxxxxxxx ("CGSH"), Xxx Xxxxxxx Xxxxx, Xxx Xxxx, XX
00000 at 10:00 A.M. (New York time), on March 3, 2003, or at such other time not
later than seven full business days thereafter as Xxxxxxx Xxxxx Xxxxxx Inc. 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:
"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."
15
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 Memorandum (and any amendment or supplement thereto that
the Issuers shall have furnished to such Purchaser
16
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 Xxxxxxx Xxxxx Xxxxxx
Inc. promptly of any proposal to amend or supplement the Offering Document and
will not effect such amendment or supplementation to which Xxxxxxx Xxxxx Xxxxxx
Inc. 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 Xxxxxxx Xxxxx Xxxxxx Inc.
of such event and promptly will prepare, at their own expense, an amendment or
supplement which will correct such statement or omission. Neither Xxxxxxx Xxxxx
Xxxxxx Inc.'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 Xxxxxxx Xxxxx Xxxxxx Inc.
copies of any preliminary offering memorandum, the Offering Document and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as Xxxxxxx Xxxxx Xxxxxx Inc. reasonably requests, and the
Issuers will furnish to Xxxxxxx Xxxxx Xxxxxx Inc. 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 Xxxxxxx Xxxxx Xxxxxx Inc.
(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.
17
(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 Xxxxxxx Xxxxx Xxxxxx Inc. designates and will continue such qualifications in
effect so long as required for the resale of the Offered Securities by the
Purchasers, provided, however, 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 Xxxxxxx Xxxxx Xxxxxx Inc., each of the
other Purchasers and any holder of Offered Securities a copy of the restrictions
on transfer applicable to the Offered Securities.
(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 Xxxxxxx Xxxxx Xxxxxx Inc. 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
18
Security Documents and perfecting the security interests in the Collateral, and
(viii) expenses incurred in distributing preliminary offering memoranda 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 Xxxxxxx Xxxxx
Xxxxxx Inc. 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 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 Xxxxxxx
Xxxxx Xxxxxx Inc.; provided, however, that the foregoing shall not apply to the
exchange notes to be issued in exchange for the 12% Senior Secured Notes due
2008 of the Issuers pursuant to the Registration Rights Agreement dated May 6,
2002 among the Issuers, the Guarantors and the Initial Purchasers identified
therein, 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.
19
(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
Memorandum under the heading "Use of Proceeds."
(k) The Issuers will use their best efforts to have the
Offered Securities admitted to trading in PORTAL.
(l) The Issuers will deliver to the trustee under the 2008
Notes Indenture and the Collateral Agent an officer's certificate pursuant to
Section 8.19 of the Intercreditor Agreement and Section 10.10 of the 2008 Notes
Indenture designating the Securities and the guarantees in respect thereof as
(i) "First-Lien Credit Facilities" (as defined in the Intercreditor Agreement)
for purposes of the Intercreditor Agreement and (ii) "First-Lien Credit
Facilities" (as defined in the 2008 Notes Indenture) and any obligation in
respect of the Securities and the guarantees in respect thereof as "Credit
Agreement Obligations" (as defined in the indenture for the 2008 Notes
Indenture) for purposes of the indenture for the 2008 Notes Indenture.
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 on the date hereof and on
the Closing Date, 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
or incorporated by reference in the Preliminary Offering Memorandum and the
Offering Memorandum 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 Xxxxxxx Xxxxx Xxxxxx Inc., 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
20
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (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 Xxxxxxx Xxxxx
Xxxxxx Inc., 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 Xxxxxxx Xxxxx Xxxxxx Inc., 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 Xxxxxx X.
Xxxx, general counsel to the Issuers, (iv) opinion of Xxxx Xxxxxxxxx, as special
Arizona counsel to the Issuers and (v) opinion of Xxxxxxxx, Xxxxx & Xxxxxx 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 &
Xxxxx ("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 Memorandum, 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 Xxxxxxx Xxxxx Xxxxxx Inc. 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 Xxxxx X. Xxxxxxx, as chief executive officer,
and Xxxx X. Xxxxxxxxx, as chief financial officer, in which such officers, to
the best of their knowledge after
21
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.
(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 first lien on the
property covered by such Mortgage, free and clear of all liens, defects and
encumbrances other than Permitted Liens; (iii) provide affirmative
22
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 Amended and Restated Credit
Agreement.
(k) On or prior to the Closing Date, Xxxxxxx Xxxxx Xxxxxx Inc.
shall have received a completed Perfection Certificate in the form of Exhibit B
dated the Closing Date and signed by an executive officer or financial officer
of the Issuers together with all attachments contemplated thereby and the
results of lien searches, conducted by a search service reasonably satisfactory
to Xxxxxxx Xxxxx Xxxxxx Inc., and Xxxxxxx Xxxxx Xxxxxx Inc. 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 Xxxxxxx Xxxxx Xxxxxx Inc. has received documentation reasonably
satisfactory to it evidencing the termination of such Liens.
(l) On or prior to the Closing Date, Xxxxxxx Xxxxx Xxxxxx Inc.
shall have received an executed copy of the Amended and Restated Credit
Agreement, among the Issuers and the Bank Lenders, which shall be in full force
and effect on the terms described in the Offering Document.
(m) On or prior to the Closing Date, each of the duly executed
Security Documents shall have been delivered to the Purchasers, and such
Security Documents shall be in full force and effect on the terms described in
the Offering Document.
(n) On or prior to the Closing Date, the Collateral Sharing
Agreement shall have been delivered to the Purchasers, and such agreement shall
be in full force and effect on the terms described in the Offering Document.
(o) On or prior to the Closing Date, an executed copy of the
Registration Rights Agreement shall have been delivered to the Purchasers, and
such agreement shall be in full force and effect on the terms described in the
Offering Document.
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 Xxxxxxx
Xxxxx Xxxxxx Inc., with such changes as the Company and Xxxxxxx Xxxxx Xxxxxx
Inc. may approve.
The Issuers will furnish the Purchasers with such conformed
copies of such opinions, certificates, letters and documents as the Purchasers
reasonably request. Xxxxxxx Xxxxx Xxxxxx Inc. may in its sole discretion waive
on behalf of the Purchasers compliance with any conditions to the obligations of
the Purchasers hereunder.
23
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 memorandum 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 Xxxxxxx Xxxxx
Xxxxxx Inc. 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 memorandum, 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 Xxxxxxx Xxxxx Xxxxxx Inc.
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 expenses are incurred,
it being understood and agreed that the only such information furnished by any
Purchaser consists
24
of the following information in the Offering Memorandum furnished on behalf of
each Purchaser: under the caption "Plan of Distribution" paragraphs 3, 8 and 10,
the first sentence of paragraph 1, the fifth sentence of paragraph 9 and the
second and third sentences of paragraph 12; 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
25
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 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, Xxxxxxx Xxxxx Xxxxxx Inc. may make
arrangements satisfactory to the Issuers for the purchase of such Offered
Securities by other persons, including any of the Purchasers, but
26
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 Xxxxxxx Xxxxx Xxxxxx Inc.
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 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 Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: General Counsel, or, if sent to the
Issuers, will be mailed, delivered or telegraphed and confirmed to it at ON
Semiconductor Corporation, 0000 Xxxx XxXxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000,
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
27
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. The Issuers irrevocably appoint CT Corporation
System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 as their 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 and appointment of such agent in full
force and effect for a period of seven years from the date of this Agreement.
28
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,
By: ON SEMICONDUCTOR CORPORATION,
by /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer
By: SEMICONDUCTOR COMPONENTS
INDUSTRIES, LLC,
by /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer
By: SCG (MALAYSIA SMP) HOLDING
CORPORATION,
by /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer
By: SCG (CZECH) HOLDING CORPORATION,
by /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer
29
By: SCG (CHINA) HOLDING CORPORATION,
by /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer
By: SEMICONDUCTOR COMPONENTS INDUSTRIES
PUERTO RICO, INC.,
by /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer
By: SCG INTERNATIONAL DEVELOPMENT LLC,
by /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer
By: SEMICONDUCTOR COMPONENTS INDUSTRIES
OF RHODE ISLAND, INC.,
by /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer
By: SEMICONDUCTOR COMPONENTS INDUSTRIES
INTERNATIONAL OF RHODE ISLAND, INC.,
by /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer
30
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXX XXXXX XXXXXX INC.
By X. Xxxxx Xxxxx
--------------------------
Title: Managing Director
Acting on behalf of itself
and as the Representative
of the several Purchasers
SCHEDULE A
PRINCIPAL AMOUNT OF
INITIAL PURCHASERS OFFERED SECURITIES
------------------ -------------------
Xxxxxxx Xxxxx Xxxxxx Inc................................. $ 80,000,000
Credit Suisse First Boston LLC........................... 60,000,000
X.X. Xxxxxx Securities Inc............................... 40,000,000
Xxxxxx Xxxxxxx & Co. Incorporated........................ 20,000,000
Total........................................... $ 200,000,000
=============
SCHEDULE B
NONE
SCHEDULE C
SCG (CZECH) HOLDING CORPORATION {DELAWARE}(1)
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}
ON Semiconductor Slovakia, 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 X. X. de C. V.
{Mexico}
SCG Italy S.r.l. {Italy}
ON Semiconductor Limited {United Kingdom}
---------------------------------
(1) { } Denotes jurisdiction
