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$56	Preview Full Doc	2003	Underwriting Agreement Underwriting Agreement (109K) Doc #117989: Click preview link for longer preview. _______________ SHARES FORMFACTOR, INC. COMMON STOCK, INCLUDING PAR VALUE $0.001 PER SHARE UNDERWRITING AGREEMENT DATED JUNE __, 2003 June __, 2003 {PAGE} June___, 2003 Morgan Stanley & Co. Incorporated Lehman Brothers Inc. Banc of America Securities LLC Thomas Weisel Partners LLC c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 Dear Sirs and Mesdames: FormFactor, Inc., a Delaware corporation (the "COMPANY"), proposes to issue and sell to the several Underwriters named in Schedule I hereto (the "UNDERWRITERS"), and certain stockholders of the Company (the "SELLING STOCKHOLDERS") named in Schedule II hereto severally propose to sell to the several underwriters, an aggregate of 5,500,000 shares of the Company's Common Stock, par value $0.001 (the "FIRM SHARES") of which 5,105,305 shares are to be issued and sold by the Company and 394,695 shares are to be sold by the Selling Stockholders, each Selling Stockholder selling the amount set forth opposite such Selling Stockholder's name on Schedule II hereto. The Company also proposes to issue and sell to the several Underwriters not more than an additional 825,000 shares of its Common Stock, par value $0.001 (the "ADDITIONAL SHARES") if and to the extent that you, as Managers of the offering, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the "SHARES." The shares of Common Stock, par value $0.001 of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the "COMMON STOCK." The Company and the Selling Stockholders are hereinafter sometimes collectively referred to as the "SELLERS." The Company has filed with the Securities and Exchange Commission (the "COMMISSION") a registration statement, including a prospectus, relating to the Shares. The registration statement as amended at the time it becomes effective, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS." If the Company has filed an abbreviated registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration Statement. Morgan Stanley & Co. Incorporated ("MORGAN STANLEY") has agreed to reserve a portion of the Shares to be purchased by it under this Agreement for sale to the Company's directors, officers, employees and business associates and other parties related to the Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus under the heading "Underwriters" (the "DIRECTED SHARE PROGRAM"). The Shares to be sold by Morgan Stanley and its affiliates 1 {PAGE} pursuant to the Directed Share Program are referred to hereinafter as the "DIRECTED SHARES." Any Directed Shares not confirmed for purchase by any Participants by the end of the business day on which this Agreement is executed will be offered to the public by the Underwriters as set forth in the Prospectus. 1. Representations and Warranties. The Company represents and warrants to and agrees with each of the Underwriters that: (a) Based on advice from the Commission, the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission. (b) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein. (c) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole. (d) Each subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company, free and clear of 117989	FormFactor FormFactor, Inc. ( Semiconductors ) As referenced in this Underwriting Agreement: FORMFACTOR INC – FORMFACTOR INC _____________ FORMFACTOR, INC. – EX-1.01 3 Exhibit 1.01 _______________ SHARES FORMFACTOR, INC. COMMON STOCK, INCLUDING PAR VALUE $0.001 PER SHARE UNDERWRITING AGREEMENT DATED JUNE __, 2003 June __, 2003 June___, 2003 Morgan Stanley & Co. Incorporated Lehman Brothers Inc. Banc _____________ FormFactor, Inc. – Incorporated Lehman Brothers Inc. Banc of America Securities LLC Thomas Weisel Partners LLC c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 Dear Sirs and Mesdames: FormFactor, Inc. , a Delaware corporation (the "COMPANY"), proposes to issue and sell to the several Underwriters named in Schedule I hereto (the "UNDERWRITERS"), and certain stockholders of the Company (the "SELLING _____________ FormFactor, Inc. – Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement. Very truly yours, FormFactor, Inc. By: _______________________________ Name: Title: The Selling Stockholders named in Schedule I hereto, acting severally By: _____________________________ Attorney-in-Fact Accepted as of the date hereof Morgan Stanley & Co. Incorporated _____________ FormFactor, Inc. – MORGAN STANLEY"), Lehman Brothers Inc., Banc of America Securities LLC and Thomas Weisel Partners LLC (all collectively, the "Underwriters") propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with FormFactor, Inc. , a Delaware corporation (the "COMPANY"), providing for the public offering (the "PUBLIC OFFERING") by the Underwriters of shares (the "SHARES") of the Common Stock, par value $0.001 per _____________ dt 1853809 ; FormFactor FormFactor, Inc. ( Semiconductors ) As referenced in this Underwriting Agreement: FORMFACTOR, INC. – EX-1.01 3 Exhibit 1.01 _______________ SHARES FORMFACTOR, INC. COMMON STOCK, INCLUDING PAR VALUE $0.001 PER SHARE UNDERWRITING AGREEMENT DATED JUNE __, 2003 June __, 2003 June___, 2003 Morgan Stanley & Co. Incorporated Lehman Brothers Inc. Banc _____________ FormFactor, Inc. – Incorporated Lehman Brothers Inc. Banc of America Securities LLC Thomas Weisel Partners LLC c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 Dear Sirs and Mesdames: FormFactor, Inc. , a Delaware corporation (the "COMPANY"), proposes to issue and sell to the several Underwriters named in Schedule I hereto (the "UNDERWRITERS"), and certain stockholders of the Company (the "SELLING _____________ FormFactor, Inc. – Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement. Very truly yours, FormFactor, Inc. By: _______________________________ Name: Title: The Selling Stockholders named in Schedule I hereto, acting severally By: _____________________________ Attorney-in-Fact Accepted as of the date hereof Morgan Stanley & Co. Incorporated _____________ FormFactor, Inc. – MORGAN STANLEY"), Lehman Brothers Inc., Banc of America Securities LLC and Thomas Weisel Partners LLC (all collectively, the "Underwriters") propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with FormFactor, Inc. , a Delaware corporation (the "COMPANY"), providing for the public offering (the "PUBLIC OFFERING") by the Underwriters of shares (the "SHARES") of the Common Stock, par value $0.001 per _____________ FORMFACTOR, INC. – of nominal value of pound sterling 1.00 each, of which 100 have been validly issued, are non-assessable and are fully paid up are registered in the name of FORMFACTOR, INC. , free and clear of all registered liens or registered encumbrances and, to our knowledge, free and clear of all liens, encumbrances, equities or claims. EXHIBIT E 1. The _____________ dt 1852301 ; Thomas Weisel Thomas Weisel Partners LLC ( Miscellany ) As referenced in this Underwriting Agreement: Thomas Weisel Partners LLC – AGREEMENT DATED JUNE __, 2003 June __, 2003 {PAGE} June___, 2003 Morgan Stanley & Co. Incorporated Lehman Brothers Inc. Banc of America Securities LLC Thomas Weisel Partners LLC c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 Dear Sirs and Mesdames: FormFactor, Inc., a Delaware corporation ( _____________ Thomas Weisel Partners LLC – By: _____________________________ Attorney-in-Fact Accepted as of the date hereof Morgan Stanley & Co. Incorporated Lehman Brothers Inc. Banc of America Securities LLC Thomas Weisel Partners LLC Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto. By: Morgan Stanley & Co. Incorporated By: ________________________________ _____________ Thomas Weisel Partners LLC – CAPTION} NUMBER OF FIRM SHARES TO BE UNDERWRITER PURCHASED {S} {C} Morgan Stanley & Co. Incorporated........... Lehman Brothers Inc......................... Banc of America Securities LLC.............. Thomas Weisel Partners LLC ................. Total:............................. {/TABLE} {PAGE} SCHEDULE II {TABLE} {CAPTION} NUMBER OF FIRM SHARES SELLING STOCKHOLDER TO BE SOLD ------------------- ---------- {S} {C} Michael Armstrong 1,053 _____________ Thomas Weisel Partners LLC – TABLE} {PAGE} EXHIBIT A [FORM OF LOCK-UP LETTER] _____________, 2003 Morgan Stanley & Co. Incorporated Lehman Brothers Inc. Banc of America Securities LLC Thomas Weisel Partners LLC c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, NY 10036 Dear Sirs and Mesdames: The undersigned understands that Morgan Stanley & _____________ Thomas Weisel Partners LLC – Dear Sirs and Mesdames: The undersigned understands that Morgan Stanley & Co. Incorporated ("MORGAN STANLEY"), Lehman Brothers Inc., Banc of America Securities LLC and Thomas Weisel Partners LLC (all collectively, the "Underwriters") propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with FormFactor, Inc., a Delaware corporation (the "COMPANY"), _____________ dt 266159 ;	BofA Securities Banc of America Securities LLC ( Financial ) As referenced in this Underwriting Agreement: Banc of America Securities – 0.001 PER SHARE UNDERWRITING AGREEMENT DATED JUNE __, 2003 June __, 2003 {PAGE} June___, 2003 Morgan Stanley & Co. Incorporated Lehman Brothers Inc. Banc of America Securities LLC Thomas Weisel Partners LLC c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 Dear Sirs and Mesdames: FormFactor, _____________ Banc of America Securities – Schedule I hereto, acting severally By: _____________________________ Attorney-in-Fact Accepted as of the date hereof Morgan Stanley & Co. Incorporated Lehman Brothers Inc. Banc of America Securities LLC Thomas Weisel Partners LLC Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto. By: Morgan Stanley & _____________ Banc of America Securities – 25 {PAGE} SCHEDULE I {TABLE} {CAPTION} NUMBER OF FIRM SHARES TO BE UNDERWRITER PURCHASED {S} {C} Morgan Stanley & Co. Incorporated........... Lehman Brothers Inc......................... Banc of America Securities LLC.............. Thomas Weisel Partners LLC ................. Total:............................. {/TABLE} {PAGE} SCHEDULE II {TABLE} {CAPTION} NUMBER OF FIRM SHARES SELLING STOCKHOLDER TO BE SOLD ------------------- ---------- {S} {C} _____________ Banc of America Securities – 18,182 --------- TOTAL: 394,695 ========= {/TABLE} {PAGE} EXHIBIT A [FORM OF LOCK-UP LETTER] _____________, 2003 Morgan Stanley & Co. Incorporated Lehman Brothers Inc. Banc of America Securities LLC Thomas Weisel Partners LLC c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, NY 10036 Dear Sirs and Mesdames: The undersigned _____________ Banc of America Securities – 1585 Broadway New York, NY 10036 Dear Sirs and Mesdames: The undersigned understands that Morgan Stanley & Co. Incorporated ("MORGAN STANLEY"), Lehman Brothers Inc., Banc of America Securities LLC and Thomas Weisel Partners LLC (all collectively, the "Underwriters") propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with FormFactor, Inc., _____________ dt 93560 ; Lehman Brothers Lehman Brothers Inc. ( Financial ) As referenced in this Underwriting Agreement: Lehman Brothers Inc – INCLUDING PAR VALUE $0.001 PER SHARE UNDERWRITING AGREEMENT DATED JUNE __, 2003 June __, 2003 {PAGE} June___, 2003 Morgan Stanley & Co. Incorporated Lehman Brothers Inc . Banc of America Securities LLC Thomas Weisel Partners LLC c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 _____________ Lehman Brothers Inc – Stockholders named in Schedule I hereto, acting severally By: _____________________________ Attorney-in-Fact Accepted as of the date hereof Morgan Stanley & Co. Incorporated Lehman Brothers Inc . Banc of America Securities LLC Thomas Weisel Partners LLC Acting severally on behalf of themselves and the several Underwriters named in Schedule _____________ Lehman Brothers Inc – ________________________________ Name: Title: 25 {PAGE} SCHEDULE I {TABLE} {CAPTION} NUMBER OF FIRM SHARES TO BE UNDERWRITER PURCHASED {S} {C} Morgan Stanley & Co. Incorporated........... Lehman Brothers Inc ......................... Banc of America Securities LLC.............. Thomas Weisel Partners LLC ................. Total:............................. {/TABLE} {PAGE} SCHEDULE II {TABLE} {CAPTION} NUMBER OF FIRM SHARES SELLING STOCKHOLDER _____________ Lehman Brothers Inc – 106 Mark Zeni 18,182 --------- TOTAL: 394,695 ========= {/TABLE} {PAGE} EXHIBIT A [FORM OF LOCK-UP LETTER] _____________, 2003 Morgan Stanley & Co. Incorporated Lehman Brothers Inc . Banc of America Securities LLC Thomas Weisel Partners LLC c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, NY 10036 Dear _____________ Lehman Brothers Inc – Stanley & Co. Incorporated 1585 Broadway New York, NY 10036 Dear Sirs and Mesdames: The undersigned understands that Morgan Stanley & Co. Incorporated ("MORGAN STANLEY"), Lehman Brothers Inc ., Banc of America Securities LLC and Thomas Weisel Partners LLC (all collectively, the "Underwriters") propose to enter into an Underwriting Agreement (the " _____________ dt 104905 ; More...
$75	Preview Full Doc	2003	Convertible Subordinated Notes Convertible Subordinated Notes (252K) Doc #125500: Click preview link for longer preview. ================================================================================ RF MICRO DEVICES, INC. 1 1/2% CONVERTIBLE SUBORDINATED NOTES DUE JULY 1, 2010 -------------------- INDENTURE DATED AS OF JULY 1, 2003 -------------------- WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE ================================================================================ {PAGE} TABLE OF CONTENTS (CONTINUED) ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...........................1 SECTION 1.1. DEFINITIONS..............................................1 SECTION 1.2. OTHER DEFINITIONS........................................6 SECTION 1.3. TRUST INDENTURE ACT PROVISIONS...........................7 SECTION 1.4. RULES OF CONSTRUCTION....................................7 ARTICLE 2 THE SECURITIES.......................................................8 SECTION 2.1. FORM AND DATING..........................................8 SECTION 2.2. EXECUTION AND AUTHENTICATION.............................9 SECTION 2.3. REGISTRAR, PAYING AGENT AND CONVERSION AGENT.............9 SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.....................10 SECTION 2.5. SECURITY HOLDER LISTS...................................10 SECTION 2.6. TRANSFER AND EXCHANGE...................................10 SECTION 2.7. REPLACEMENT SECURITIES..................................11 SECTION 2.8. OUTSTANDING SECURITIES..................................12 SECTION 2.9. TREASURY SECURITIES.....................................12 SECTION 2.10. TEMPORARY SECURITIES...................................12 SECTION 2.11. CANCELLATION...........................................13 SECTION 2.12. ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS..........13 SECTION 2.13. CUSIP NUMBERS..........................................18 ARTICLE 3 REDEMPTION AND PURCHASES............................................18 SECTION 3.1. RIGHT TO REDEEM; NOTICE TO TRUSTEE......................18 SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED..................18 SECTION 3.3. NOTICE OF REDEMPTION....................................19 SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION..........................19 SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.............................20 SECTION 3.6. SECURITIES REDEEMED IN PART.............................20 SECTION 3.7. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION...........20 SECTION 3.8. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE IN CONTROL....................................21 SECTION 3.9. EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE............23 SECTION 3.10. DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE............24 SECTION 3.11. SECURITIES PURCHASED IN PART...........................24 SECTION 3.12. COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES..........................................24 SECTION 3.13. REPAYMENT TO THE COMPANY...............................25 ARTICLE 4 CONVERSION..........................................................25 SECTION 4.1. CONVERSION PRIVILEGE....................................25 SECTION 4.2. CONVERSION PROCEDURE....................................25 SECTION 4.3. FRACTIONAL SHARES.......................................26 SECTION 4.4. TAXES ON CONVERSION.....................................27 SECTION 4.5. COMPANY TO PROVIDE STOCK................................27 {PAGE} TABLE OF CONTENTS (CONTINUED) SECTION 4.6. ADJUSTMENT OF CONVERSION PRICE..........................27 SECTION 4.7. NO ADJUSTMENT...........................................30 SECTION 4.8. ADJUSTMENT FOR TAX PURPOSES.............................31 SECTION 4.9. NOTICE OF ADJUSTMENT....................................31 SECTION 4.10. NOTICE OF CERTAIN TRANSACTIONS.........................31 SECTION 4.11. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSION PRIVILEGE........................31 SECTION 4.12. TRUSTEE'S DISCLAIMER...................................32 SECTION 4.13. VOLUNTARY REDUCTION....................................32 ARTICLE 5 SUBORDINATION.......................................................33 SECTION 5.1. AGREEMENT OF SUBORDINATION..............................33 SECTION 5.2. PAYMENTS TO HOLDERS.....................................33 SECTION 5.3. SUBROGATION OF SECURITIES...............................35 SECTION 5.4. AUTHORIZATION TO EFFECT SUBORDINATION...................36 SECTION 5.5. NOTICE TO TRUSTEE.......................................36 SECTION 5.6. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS...............37 SECTION 5.7. NO IMPAIRMENT OF SUBORDINATION..........................37 SECTION 5.8. CERTAIN CONVERSIONS DEEMED PAYMENT......................38 SECTION 5.9. ARTICLE APPLICABLE TO PAYING AGENTS.....................38 SECTION 5.10. SENIOR INDEBTEDNESS ENTITLED TO RELY...................38 ARTICLE 6 COVENANTS...........................................................38 SECTION 6.1. PAYMENT OF SECURITIES...................................38 SECTION 6.2. SEC REPORTS.............................................39 SECTION 6.3. COMPLIANCE CERTIFICATES.................................39 SECTION 6.4. FURTHER INSTRUMENTS AND ACTS............................39 SECTION 6.5. MAINTENANCE OF CORPORATE EXISTENCE......................39 SECTION 6.6. RULE 144A INFORMATION REQUIREMENT.......................39 SECTION 6.7. STAY, EXTENSION AND USURY LAWS..........................40 SECTION 6.8. PAYMENT OF ADDITIONAL INTEREST..........................40 ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................40 SECTION 7.1. COMPANY MAY CONSOLIDATE, ETC, ONLY ON CERTAIN TERMS.....40 SECTION 7.2. SUCCESSOR SUBSTITUTED...................................41 ARTICLE 8 DEFAULT AND REMEDIES................................................41 SECTION 8.1. EVENTS OF DEFAULT.......................................41 SECTION 8.2. ACCELERATION............................................42 SECTION 8.3. OTHER REMEDIES..........................................43 SECTION 8.4. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT................43 SECTION 8.5. CONTROL BY MAJORITY.....................................43 SECTION 8.6. LIMITATIONS ON SUITS....................................43 SECTION 8.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT.....44 {PAGE} TABLE OF CONTENTS (CONTINUED) SECTION 8.8. COLLECTION SUIT BY TRUSTEE..............................44 SECTION 8.9. TRUSTEE MAY FILE PROOFS OF CLAIM........................44 SECTION 8.10. PRIORITIES.............................................45 SECTION 8.11. UNDERTAKING FOR COSTS..................................45 ARTICLE 9 TRUSTEE.............................................................45 SECTION 9.1. DUTIES OF TRUSTEE.......................................45 SECTION 9.2. RIGHTS OF TRUSTEE.......................................46 SECTION 9.3. INDIVIDUAL RIGHTS OF TRUSTEE............................47 SECTION 9.4. TRUSTEE'S DISCLAIMER....................................47 SECTION 9.5. NOTICE OF DEFAULT OR EVENTS OF DEFAULT..................47 SECTION 9.6. REPORTS BY TRUSTEE TO HOLDERS...........................47 SECTION 9.7. COMPENSATION AND INDEMNITY..............................48 SECTION 9.8. REPLACEMENT OF TRUSTEE..................................49 SECTION 9.9. SUCCESSOR TRUSTEE BY MERGER, ETC........................49 SECTION 9.10. ELIGIBILITY; DISQUALIFICATION..........................50 SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY......50 ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE............................50 SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE................50 SECTION 10.2. APPLICATION OF TRUST MONEY.............................51 SECTION 10.3. REPAYMENT TO COMPANY...................................51 SECTION 10.4. REINSTATEMENT..........................................51 ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS................................52 SECTION 11.1. WITHOUT CONSENT OF HOLDERS.............................52 SECTION 11.2. WITH CONSENT OF HOLDERS................................52 SECTION 11.3. COMPLIANCE WITH TRUST INDENTURE ACT....................53 SECTION 11.4. REVOCATION AND EFFECT OF CONSENTS......................53 SECTION 11.5. NOTATION ON OR EXCHANGE OF SECURITIES..................53 SECTION 11.6. TRUSTEE TO SIGN AMENDMENTS, ETC........................54 ARTICLE 12 MISCELLANEOUS......................................................54 SECTION 12.1. TRUST INDENTURE ACT CONTROLS...........................54 SECTION 12.2. NOTICES 54 SECTION 12.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS...........55 SECTION 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.....55 SECTION 12.5. RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS.....55 SECTION 12.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT..................................................56 SECTION 12.7. LEGAL HOLIDAYS.........................................56 SECTION 12.8. GOVERNING LAW..........................................56 SECTION 12.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS..........56 SECTION 12.10. NO RECOURSE AGAINST OTHERS............................56 {PAGE} TABLE OF CONTENTS (CONTINUED) SECTION 12.11. SUCCESSORS............................................56 SECTION 12.12. MULTIPLE COUNTERPARTS.................................56 SECTION 12.13. SEPARABILITY..........................................56 SECTION 12.14. TABLE OF CONTENTS, HEADINGS, ETC......................57 {PAGE} CROSS-REFERENCE TABLE* TIA INDENTURE SECTION SECTION --------- ----------- Section 310(a)(1)............................ 9.10 (a)(2)............................... 9.10 (a)(3)................ .............. N.A.** (a)(4)............................... N.A. (a)(5)............................... 9.10 (b).................................. 9.8; 9.10 (c).................................. N.A. Section 311(a)............................... 9.11 (b).................................. 9.11 (c).................................. N.A. Section 312(a)............................... 2.5 (b).................................. 12.3 (c).................................. 12.3 Section 313(a)............................... 9.6 (b)(1)............................... N.A. (b)(2)............................... 9.6 (c).................................. 9.6; 12.2 (d).................................. 9.6 Section 314(a)............................... 6.2; 6.3, 6.4; 12.2 (b).................................. N.A. (c)(1).............. .............. 12.4(a) (c)(2).............................. 12.4(a) (c)(3)............................... N.A. (d).................................. N.A. (e)................................. 12.4(b) (f).................................. N.A. Section 315(a)............................... 9.1(b) (b).................................. 9.5; 12.2 (c).................................. 9.1(a) (d).................................. 9.1(c) (e).................................. 8.11 Section 316(a)(last sentence)................ 2.9 (a)(1)(A)............................ 8.5 (a)(1)(B)............................ 8.4 (a)(2)............................... N.A. (b).................................. 8.7 (c)................................. 12.5 Section 317(a)(1)............................ 8.8 (a)(2)............................... 8.9 (b).................................. 2.4 ------------------------------------------------------------------------------ * This Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture. ** N.A. means Not Applicable. {PAGE} THIS INDENTURE dated as of July 1, 2003 is between RF Micro Devices, Inc., a North Carolina corporation (the "Company"), and Wachovia Bank, National Association, organized and existing under the laws of the United States, as Trustee (the "Trustee"), having an office at 401 South Tryon Street, 12th floor, Charlotte, North Carolina 28288-1179. In consideration of the premises and the purchase of the Securities by the Holders thereof, both parties agree as follows for the benefit of the other and for the equal and ratable benefit of the registered Holders of the Company's 1 1/2% Convertible Subordinated Notes Due July 1, 2010. ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.1. DEFINITIONS. "Additional Interest" has the meaning specified in Section 2(e) of the Registration Rights Agreement. All references herein to interest accrued or payable as of any date shall include any Additional Interest accrued or payable as of such date as provided in the Registration Rights Agreement. "Affiliate" means, with respect to any specified person, any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" when used with respect to any person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Agent" means any Registrar, Paying Agent or Conversion Agent. "Applicable Procedures" means, with respect to any transfer or exchange of beneficial ownership interests in a Global Security, the rules and procedures of the Depositary that are applicable to such transfer or exchange. "Board of Directors" means the board of directors of the Company or any authorized committee of the Board of Directors. "Business Day" means each day that is not a Legal Holiday. "Capital Stock" of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, but excluding any debt securities convertible into such equity. "Cash" or "cash" means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private debts. "Certificated Security" means a Security that is in substantially the form attached hereto as EXHIBIT A and that does not include the information or the schedule called for by footnotes 1, 3 and 4 thereof. 125500	RF Micro RF Micro Devices, Inc. ( Semiconductors ) As referenced in this Convertible Subordinated Notes: RF MICRO DEVICES, INC. – {DOCUMENT} {TYPE}EX-4 {SEQUENCE}3 {FILENAME}ex4_7.txt {DESCRIPTION}INDENTURE FOR 1.5% NOTES {TEXT} EXECUTION COPY ================================================================================ RF MICRO DEVICES, INC. 1 1/2% CONVERTIBLE SUBORDINATED NOTES DUE JULY 1, 2010 -------------------- INDENTURE DATED AS OF JULY 1, 2003 -------------------- WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE ================================================================================ {PAGE} TABLE OF CONTENTS (CONTINUED) ARTICLE _____________ RF Micro Devices, Inc. – Reference Table shall not, for any purpose, be deemed a part of this Indenture. N.A. means Not Applicable. {PAGE} THIS INDENTURE dated as of July 1, 2003 is between RF Micro Devices, Inc. , a North Carolina corporation (the "Company"), and Wachovia Bank, National Association, organized and existing under the laws of the United States, as Trustee (the "Trustee"), having an office at _____________ (RF Micro Devices, Inc. – administered, which office at the date of the execution of this Indenture is located at 401 South Tryon Street, 12th floor, Charlotte, North Carolina 28288-1179, Attention: NC Bond Administration (RF Micro Devices, Inc. -- 1 1/2% Convertible Subordinated Notes Due July 1, 2010) or at any other time at such other address as the Trustee may designate from time to time by _____________ (RF Micro Devices, Inc. – in the Borough of Manhattan, The City of New York (which shall initially be located at 40 Broad Street, Suite 550, New York, New York 10004, Attention: NC Bond Administration (RF Micro Devices, Inc. 1 1/2% Convertible Subordinated Notes Due July 1, 2010)), one such office or agency of the Company for each of the aforesaid purposes. SECTION 2.4. PAYING AGENT _____________ RF Micro Devices, Inc. – NOTICES. Any notice, request or communication shall be given in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows: If to the Company: RF Micro Devices, Inc.** 7625 Thorndike Road Greensboro, North Carolina 27409 Attention: ___________ Facsimile: ____________ If to the Trustee: Wachovia Bank, National Association NC 1179 401 South Tryon Street, 12th Floor Charlotte, North _____________ dt 1475239 ; RF Micro RF Micro Devices, Inc. ( Semiconductors ) As referenced in this Convertible Subordinated Notes: RF MICRO DEVICES, INC. – {DOCUMENT} {TYPE}EX-4 {SEQUENCE}3 {FILENAME}ex4_7.txt {DESCRIPTION}INDENTURE FOR 1.5% NOTES {TEXT} EXECUTION COPY ================================================================================ RF MICRO DEVICES, INC. 1 1/2% CONVERTIBLE SUBORDINATED NOTES DUE JULY 1, 2010 -------------------- INDENTURE DATED AS OF JULY 1, 2003 -------------------- WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE ================================================================================ {PAGE} TABLE OF CONTENTS (CONTINUED) ARTICLE _____________ RF Micro Devices, Inc. – Reference Table shall not, for any purpose, be deemed a part of this Indenture. N.A. means Not Applicable. {PAGE} THIS INDENTURE dated as of July 1, 2003 is between RF Micro Devices, Inc. , a North Carolina corporation (the "Company"), and Wachovia Bank, National Association, organized and existing under the laws of the United States, as Trustee (the "Trustee"), having an office at _____________ (RF Micro Devices, Inc. – administered, which office at the date of the execution of this Indenture is located at 401 South Tryon Street, 12th floor, Charlotte, North Carolina 28288-1179, Attention: NC Bond Administration (RF Micro Devices, Inc. -- 1 1/2% Convertible Subordinated Notes Due July 1, 2010) or at any other time at such other address as the Trustee may designate from time to time by _____________ (RF Micro Devices, Inc. – in the Borough of Manhattan, The City of New York (which shall initially be located at 40 Broad Street, Suite 550, New York, New York 10004, Attention: NC Bond Administration (RF Micro Devices, Inc. 1 1/2% Convertible Subordinated Notes Due July 1, 2010)), one such office or agency of the Company for each of the aforesaid purposes. SECTION 2.4. PAYING AGENT _____________ RF Micro Devices, Inc. – NOTICES. Any notice, request or communication shall be given in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows: If to the Company: RF Micro Devices, Inc.** 7625 Thorndike Road Greensboro, North Carolina 27409 Attention: ___________ Facsimile: ____________ If to the Trustee: Wachovia Bank, National Association NC 1179 401 South Tryon Street, 12th Floor Charlotte, North _____________ dt 1475256 ; Thomas Weisel Thomas Weisel Partners LLC ( Miscellany ) As referenced in this Convertible Subordinated Notes: Thomas Weisel Partners LLC, – the Registration Rights Agreement, dated as of July 1, 2003, among the Company, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Thomas Weisel Partners LLC, as initial purchasers. "Representative" means (a) the indenture trustee or other trustee, agent or representative for any Senior Indebtedness or (b) with _____________ Thomas Weisel Partners LLC – Purchase Agreement, dated June 25, 2003 (the "Purchase Agreement"), among the Company and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Thomas Weisel Partners LLC in transactions exempt from, or not subject to, the registration requirements of the Securities Act. (a) RESTRICTED GLOBAL SECURITIES. All of the Securities _____________ dt 266162 ;	Cede Cede & Co. ( Financial ) As referenced in this Convertible Subordinated Notes: Cede & Co – being hereinafter referred to as the "Depositary"), and registered in the name of its nominee, Cede & Co ., duly executed by the Company and authenticated by the Trustee as hereinafter provided. The CEDE & CO – OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO . OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE CEDE & CO – AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO . OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE CEDE & CO – VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO ., HAS AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF dt 38792 ; DTC Depository Trust Co. ( Financial ) As referenced in this Convertible Subordinated Notes: Depository Trust Company – thereby with the Trustee, at its Corporate Trust Office, as custodian for the depositary, The Depository Trust Company ("DTC") (such depositary, or any successor thereto, being hereinafter referred to as the "Depositary"), DEPOSITORY TRUST COMPANY – OF FACE OF SECURITY] [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND DEPOSITORY TRUST COMPANY – CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY DEPOSITORY TRUST COMPANY – CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO dt 47920 ; More...
$43	Preview Full Doc	2003	Convertible Secured Debenture Convertible Secured Debenture (41K) Doc #126265: Click preview link for longer preview. 2% CONVERTIBLE SECURED DEBENTURE DUE JUNE __, 2011 $_______________ June 30, 2003 SECTION 1. GENERAL. Tegal Corporation, for value received, hereby promises to pay to , the registered Holder hereof, the principal amount of Dollars ($ ) in such coin or currency of the United States of America as at the time of payment shall be legal tender therein for the payment of public and private debts, and to pay interest on the principal amount outstanding under this Debenture from this date, at the rate of two percent (2%) per annum, quarter-annually on the last day of September and December, 2003 and the last day of March, June, September and December in each succeeding year, payable (i) in cash until receipt of the Stockholder Approval (as defined below) and (ii) in kind by issuance of additional Debentures in the amount of such interest, until all the obligations under this Debenture are paid in full; provided that in the event the Stockholder Approval is obtained prior to any payment in cash of interest, such interest shall be payable in kind as provided in clause (ii). All payments of principal and interest on this Debenture shall be paid to the registered Holder hereof as shown in the Corporation's records, without presentment or demand. To the extent not sooner paid, all accrued and outstanding principal and interest hereunder shall be due and payable on June __, 2011. Interest hereon for any period other than a full year shall be computed on the basis of the number of days elapsed over a 365-day year. SECTION 2. DEFINITIONS. As used herein, the following terms have the following respective meanings: "Common Stock" shall mean all stock of any class or classes (however designated) of the Corporation, authorized upon the date hereof or thereafter the holders of which shall have the right, without limitation as to amount, either to all or to a share of the balance of current dividends and liquidating dividends after the payment of dividends and distributions on any shares entitled to preference, and shall include, without limiting the foregoing, the Common Stock, $.01 par value, of the Corporation authorized as of the date of issuance hereof. "Corporation" shall mean Tegal Corporation, a Delaware corporation, the issuer of this Debenture, and shall also mean any successor corporation. The term "corporation" shall include an association, joint stock company, business trust, limited liability company or other similar organization. {PAGE} "Debenture" refers to this Debenture. Such term also refers to any debenture executed and delivered by the Corporation in exchange or replacement pursuant to Section 10 hereof. This Debenture together with any other 2% Convertible Secured Debentures due June __, 2011, issued by the Corporation in connection with Units described in and offered pursuant to its Unit Subscription Agreement dated June 30, 2003 (the "Subscription Agreement") are collectively called the "Debentures." The Debentures were issued as part of Units including the Corporation's warrants to purchase certain shares of Common Stock (the "Warrants"). "Excluded Stock" shall mean shares of Common Stock issued by the Corporation (i) reserved for employees or consultants (up to the available incentive pool), (ii) to bona fide leasing companies, strategic partners, or major lenders, (iii) as the purchase price in a bona fide acquisition or merger (including reasonable fees paid in connection therewith) or (iv) upon issuance, conversion or exercise of the Debentures or Warrants. "Fair Market Value" shall mean the fair market value of assets or securities as reasonably determined by the Board of Directors of the Corporation in good faith in accordance with generally accepted accounting principles. "Holder" shall mean the person who shall at the time be the registered Holder of this Debenture. The term "person" shall mean an individual, a corporation, a partnership, a trust, an unincorporated organization or a government or any department, agency or political subdivision thereof. The term "Stockholder Approval" means the approval of the stockholders of the Company for the issuance of all the Debentures as required by the applicable rules of The Nasdaq Stock Market. "Subsidiary" shall mean any corporation of which stock or other interest having ordinary power to elect a majority of the board of directors (or other governing body) of such entity (regardless of whether or not at the time stock or interests of any other class or classes of such corporation shall have or may have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned by the Corporation or by one or more Subsidiaries. SECTION 3. REGISTERED HOLDERS. The Corporation may deem and treat the registered Holder of this Debenture as the absolute owner of this Debenture for the purpose of receiving payment hereon or on account hereof and for all other purposes, and the Corporation shall not be affected by any notice to the contrary. SECTION 4. PREPAYMENT. This Debenture may not be prepaid. SECTION 5. COLLATERAL; HOLDER'S REPRESENTATIVE. 5.1 In order to secure the payment and performance of all of the Corporation's obligations, warranties and agreements in the Debentures, the Corporation has executed and 126265	Tegal Tegal Corp. ( Semiconductors )
$52	Preview Full Doc	2003	Underwriting Agreement Underwriting Agreement (97K) Doc #131088: Click preview link for longer preview. 5,000,000 SHARES* BELL MICROPRODUCTS INC. COMMON STOCK UNDERWRITING AGREEMENT August 21, 2003 ("Effective Date") NEEDHAM & COMPANY, INC. Raymond James & Associates, Inc. As Representatives of the several Underwriters c/o Needham & Company, Inc. 445 Park Avenue New York, New York 10022 Ladies and Gentlemen: Bell Microproducts Inc., a California corporation (the "Company"), proposes to issue and sell 5,000,000 shares (the "Firm Shares") of the Company's Common Stock, $.01 par value per share (the "Common Stock") to you and to the several other underwriters, if any, named in Schedule I hereto (collectively, the "Underwriters"), for whom you are acting as representatives (the "Representatives"). The Company has agreed to grant to you and the other Underwriters an option (the "Option") to purchase up to an additional 750,000 shares of Common Stock, on the terms and for the purposes set forth in Section 1(b) (the "Option Shares"). The Firm Shares and the Option Shares are collectively referred to herein as the "Shares." The Company confirms as follows its agreement with the Representatives and the several other Underwriters. 1. Agreement to Sell and Purchase. (a) On the basis of the representations, warranties and agreements of the Company herein contained and subject to all the terms and conditions of this Agreement, (i) the Company agrees to issue and sell the Firm Shares to the several Underwriters and (ii) each of the Underwriters, severally and not jointly, agrees to purchase from the Company the number of Firm Shares set forth opposite that Underwriter's name in Schedule I hereto, at the purchase price of $6.50 for each Firm Share. (b) Subject to all the terms and conditions of this Agreement, the Company grants the Option to the several Underwriters to purchase, severally and not jointly, up to the maximum number of Option Shares set forth in Schedule I hereto at the same price per share as the Underwriters shall pay for the Firm Shares. The Option may be exercised only to cover over-allotments in the sale of the Firm Shares by the Underwriters and may be exercised in whole or in part at any time (but not more than once) on or before the 30th day after the date of this Agreement upon written or telegraphic notice (the "Option Shares Notice") by the Representatives to the Company no later than 12:00 noon, New York City time, at least two and no more than five business days before the date specified for closing in the Option Shares Notice (the "Option Closing Date"), setting forth the aggregate number of Option Shares to be purchased and the time and date for such purchase. On the Option Closing Date, the Company will ---------- * Plus an option to purchase up to an additional 750,000 shares to cover over-allotments. 1 {PAGE} issue and sell to the Underwriters the number of Option Shares set forth in the Option Shares Notice, and each Underwriter will purchase such percentage of the Option Shares as is equal to the percentage of Firm Shares that such Underwriter is purchasing, as adjusted by the Representatives in such manner as they deem advisable to avoid fractional shares. 2. Delivery and Payment. Delivery of the Firm Shares shall be made to the Representatives for the accounts of the Underwriters against payment of the purchase price by wire transfer payable in same-day funds to the order of the Company for the Firm Shares to be sold by it at the office of Needham & Company, Inc., 445 Park Avenue, New York, New York 10022, at 10:00 a.m., New York City time, on the third (or, if the purchase price set forth in Section 1(b) hereof is determined after 4:30 p.m., Washington, D.C. time, the fourth) business day following the commencement of the offering contemplated by this Agreement, or at such time on such other date, not later than seven business days after the date of this Agreement, as may be agreed upon by the Company and the Representatives (such date is hereinafter referred to as the "Closing Date"). To the extent the Option is exercised, delivery of the Option Shares against payment by the Underwriters (in the manner specified above) will take place at the offices specified above for the Closing Date at the time and date (which may be the Closing Date) specified in the Option Shares Notice. Certificates evidencing the Shares shall be in definitive form and shall be registered in such names and in such denominations as the Representatives shall request at least two business days prior to the Closing Date or the Option Closing Date, as the case may be, by written notice to the Company. For the purpose of expediting the checking and packaging of certificates for the Shares, the Company agrees to make such certificates available for inspection at least 24 hours prior to the Closing Date or the Option Closing Date, as the case may be. The cost of original issue tax stamps and other transfer taxes, if any, in connection with the issuance and delivery of the Firm Shares and Option Shares by the Company to the respective Underwriters shall be borne by the Company. The Company will pay and save each Underwriter and any subsequent holder of the Shares harmless from any and all liabilities with respect to or resulting from any failure or delay in paying Federal and state stamp and other transfer taxes, if any, which may be payable or determined to be payable in connection with the original issuance or sale to such Underwriter of the Shares. 3. Representations and Warranties of the Company. The Company represents, warrants and covenants to each Underwriter that: (a) The Company has prepared and filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (File No. 333-107732), which contains a form of prospectus to be used in connection with the public offering and sale of the Shares. Such registration statement was declared effective by the Commission on August 11, 2003. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, in the form in which it was declared effective by the Commission under the Securities Act of 1933, as amended (the "Act"), and the rules and regulations of the Commission (collectively, the "Rules and Regulations"), including all documents incorporated or deemed incorporated by reference therein and any information deemed to be a part thereof as of the date hereof pursuant to Rule 430A under the Act or the Securities Exchange Act of 1934 (the "Exchange Act"), is called the "Registration Statement." Any registration statement filed by the Company pursuant to Rule 462(b) under the Act is called a "Rule 462(b) Registration Statement," and the term "Registration Statement" shall include any Rule 462(b) Registration Statements. On August 13, 2003, the Company prepared and filed with the Commission a preliminary prospectus supplement together with the prospectus included in the Registration Statement at the time it was declared effective (collectively, together with all documents incorporated or deemed incorporated therein by reference, the "preliminary prospectus"). Promptly after execution and delivery of this Agreement, the Company will prepare and file a final prospectus supplement, together with the prospectus included in the Registration Statement at the time it was declared effective, in accordance with the provisions of Rule 424(b) of the Rules and Regulations. Such final prospectus supplement and prospectus, in the form first used by the Underwriters to confirm sales of the Shares, together with all documents incorporated or deemed incorporated by referenced therein pursuant to the Act, the 131088	Bell Bell Microproducts Inc. ( Semiconductors ) As referenced in this Underwriting Agreement: BELL MICROPRODUCTS INC. – {DOCUMENT} {TYPE}EX-1.1 {SEQUENCE}3 {FILENAME}c79270exv1w1.txt {DESCRIPTION}UNDERWRITING AGREEMENT {TEXT} {PAGE} 5,000,000 SHARES* BELL MICROPRODUCTS INC. COMMON STOCK UNDERWRITING AGREEMENT August 21, 2003 ("Effective Date") NEEDHAM & COMPANY, INC. Raymond James & Associates, Inc. As Representatives of the several Underwriters c/o Needham & Company, Inc. 445 Park _____________ Bell Microproducts Inc. – Date") NEEDHAM & COMPANY, INC. Raymond James & Associates, Inc. As Representatives of the several Underwriters c/o Needham & Company, Inc. 445 Park Avenue New York, New York 10022 Ladies and Gentlemen: Bell Microproducts Inc. , a California corporation (the "Company"), proposes to issue and sell 5,000,000 shares (the "Firm Shares") of the Company's Common Stock, $.01 par value per share (the " _____________ Bell Microproducts Inc. – ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Please confirm that the foregoing correctly sets forth the agreement among the Company and the several Underwriters. Very truly yours, Bell Microproducts Inc. By: /S/ James Illson -------------------------------- Title: Executive Vice President, Finance and Operations, and Chief Financial Officer 18 {PAGE} Confirmed as of the date first above mentioned: NEEDHAM & COMPANY, INC. Raymond _____________ Bell Microproducts, Inc. – Inc...................................... 2,000,000 300,000 --------- ------- Total ..................................................... 5,000,000 750,000 ========= ======= {/Table} 20 {PAGE} SCHEDULE II FORM OF LOCK-UP AGREEMENT The undersigned is a holder of securities of Bell Microproducts, Inc. , a California corporation (the "Company"), and wishes to facilitate the public offering of shares of the Common Stock (the "Common Stock") of the Company (the "Offering"). The undersigned recognizes _____________ dt 1472937 ; Bell Bell Microproducts Inc. ( Semiconductors ) As referenced in this Underwriting Agreement: Bell Microproducts, Inc. – Inc...................................... 2,000,000 300,000 --------- ------- Total ..................................................... 5,000,000 750,000 ========= ======= {/Table} 20 {PAGE} SCHEDULE II FORM OF LOCK-UP AGREEMENT The undersigned is a holder of securities of Bell Microproducts, Inc. , a California corporation (the "Company"), and wishes to facilitate the public offering of shares of the Common Stock (the "Common Stock") of the Company (the "Offering"). The undersigned recognizes _____________ dt 1472953 ; Raymond James Raymond James & Associates, Inc. ( Financial ) As referenced in this Underwriting Agreement: Raymond James & Associates, – UNDERWRITING AGREEMENT {TEXT} {PAGE} 5,000,000 SHARES* BELL MICROPRODUCTS INC. COMMON STOCK UNDERWRITING AGREEMENT August 21, 2003 ("Effective Date") NEEDHAM & COMPANY, INC. Raymond James & Associates, Inc. As Representatives of the several Underwriters c/o Needham & Company, Inc. 445 Park Avenue New York, New York 10022 Ladies and _____________ Raymond James & Associates, – Executive Vice President, Finance and Operations, and Chief Financial Officer 18 {PAGE} Confirmed as of the date first above mentioned: NEEDHAM & COMPANY, INC. Raymond James & Associates, Inc. Acting on behalf of themselves and as the Representatives of the other several Underwriters named in Schedule I hereto. By: NEEDHAM & _____________ Raymond James & Associates, – NUMBER OF FIRM NUMBER OF OPTION SHARES TO BE SHARES UNDERWRITERS PURCHASED {S} {C} {C} Needham & Company, Inc. ............................................ 3,000,000 450,000 Raymond James & Associates, Inc...................................... 2,000,000 300,000 --------- ------- Total ..................................................... 5,000,000 750,000 ========= ======= {/Table} 20 {PAGE} SCHEDULE II FORM OF LOCK-UP AGREEMENT _____________ dt 158055 ;	Fredrikson Fredrikson & Byron ( Legal ) As referenced in this Underwriting Agreement: Fredrikson & Byron, – Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from Fredrikson & Byron, P.A., counsel to the Company with respect to the following matters: (i) The Fredrikson & Byron, – San Jose, California 95131, Attention: Chief Financial Officer, with a copy to Melodie Rose, Esq., Fredrikson & Byron, P.A., 4000 Pillsbury Center, 200 South Sixth Street, Minneapolis, Minnesota 55402-1425 or ( dt 36639 ; Gray Cary Gray Cary Ware & Freidenrich ( Legal ) As referenced in this Underwriting Agreement: Gray Cary – shall have received an opinion, dated the Closing Date and the Option Closing Date, from Gray Cary Ware & Freidenrich LLP, counsel to the Underwriters, with respect to the Registration Statement, the Gray Cary – York, New York 10022, Attention: Corporate Finance Department, with a copy to Scott Stanton, Esq., Gray Cary Ware & Freidenrich LLP, 4365 Executive Drive, Suite 1100, San Diego, California 92121-2133. Any dt 36995 ; Needham & Company, Inc.
$33	Preview Full Doc	2001	Guaranty Guaranty (14K) Doc #143947: Click preview link for longer preview. GUARANTY -------- This Guaranty (the "Guaranty") is effective as of October 1, 2000 and is entered into by ADVANCED MICRO DEVICES, INC., a Delaware corporation ("AMD"), in favor of and for the benefit of FUJITSU LIMITED, a corporation organized under the laws of Japan ("Fujitsu"). RECITALS A. Fujitsu Microelectronics, Inc., a California corporation ("FMI") and Fujitsu AMD Semiconductor Limited, a joint venture organized under the laws of Japan ("FASL") are in the process of negotiating a foundry agreement whereby FMI will *** production capacity for flash wafers at FMI's Gresham Manufacturing Division in Gresham, Oregon ("GMD") to FASL and pursuant to which FASL will purchase * of the flash wafers produced by FMI (the "GMD Wafers"). B. FASL, AMD and Fujitsu are party to that certain Sales and Purchase Agreement of FASL Products dated as of September 8, 1995 (as amended from time to time, the "FASL Sales Agreement"), pursuant to which AMD and Fujitsu purchase wafers from FASL (including without limitation the GMD Wafers). *. C. In order to meet its working capital needs and to increase production capacity at GMD, FMI wishes to borrow funds from the lenders (the "Lenders") under that certain US$550,000,000 364-Day Global Multicurrency Revolving Credit Facility Agreement dated October 29, 1999, with Credit Lyonnais, Tokyo Branch, the Agent Bank, or any amendment or replacement, including any bilateral bank loan facility, of the credit facility (the "Credit Facility"). D. Under the terms of the Credit Facility, Fujitsu is a co-signer with FMI on all borrowings made by FMI pursuant to the Credit Facility (such co-signing obligation being the "Fujitsu Primary Lender Obligation"). E. In consideration of Fujitsu's Primary Lender Obligation and because increased production capacity at FMI will benefit AMD, AMD has agreed to provide to Fujitsu a guarantee of FMI's obligations under the Credit Facility, up to a maximum guaranteed amount of $125,000,000, subject to the terms and conditions outlined herein. NOW THEREFORE, in consideration of and subject to the mutual covenants, terms and conditions contained in this Agreement, AMD and Fujitsu agree as follows: 1. Guaranty. (a) In order to induce Fujitsu to maintain its Primary Lender Obligation for FMI's borrowings under the Credit Facility, AMD guaranties the due and punctual payment in full of all Guarantied Obligations (as hereinafter defined) when the same shall Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as ***. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. 143947	AMD Advanced Micro Devices, Inc. ( Semiconductors ) As referenced in this Guaranty: ADVANCED MICRO DEVICES, INC. – SEQUENCE}5 {FILENAME}dex1023j.txt {DESCRIPTION}GUARANTY {TEXT} {PAGE} EXHIBIT 10.23(j) GUARANTY -------- This Guaranty (the "Guaranty") is effective as of October 1, 2000 and is entered into by ADVANCED MICRO DEVICES, INC. , a Delaware corporation ("AMD"), in favor of and for the benefit of FUJITSU LIMITED, a corporation organized under the laws of Japan ("Fujitsu"). RECITALS A. Fujitsu Microelectronics, Inc., a _____________ ADVANCED MICRO DEVICES, INC. – trial contained in Section 6, Fujitsu have caused this Guaranty to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above. ADVANCED MICRO DEVICES, INC. /s/ Francis P. Barton By: Francis P. Barton ----------------------------------- Title: Senior Vice President & ----------------------------------- Chief Financial Officer Address: One AMD Place Sunnyvale, California 94088 Attention: -------------------- FUJITSU LIMITED /s/ Takashi Takaya By: _____________ dt 1469418 ; AMD Advanced Micro Devices, Inc. ( Semiconductors ) As referenced in this Guaranty: ADVANCED MICRO DEVICES, INC. – SEQUENCE}5 {FILENAME}dex1023j.txt {DESCRIPTION}GUARANTY {TEXT} {PAGE} EXHIBIT 10.23(j) GUARANTY -------- This Guaranty (the "Guaranty") is effective as of October 1, 2000 and is entered into by ADVANCED MICRO DEVICES, INC. , a Delaware corporation ("AMD"), in favor of and for the benefit of FUJITSU LIMITED, a corporation organized under the laws of Japan ("Fujitsu"). RECITALS A. Fujitsu Microelectronics, Inc., a _____________ ADVANCED MICRO DEVICES, INC. – trial contained in Section 6, Fujitsu have caused this Guaranty to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above. ADVANCED MICRO DEVICES, INC. /s/ Francis P. Barton By: Francis P. Barton ----------------------------------- Title: Senior Vice President & ----------------------------------- Chief Financial Officer Address: One AMD Place Sunnyvale, California 94088 Attention: -------------------- FUJITSU LIMITED /s/ Takashi Takaya By: _____________ dt 1465673 ;	Fujitsu Limited
$52	Preview Full Doc	2003	Distribution Agreement Distribution Agreement (208K) Doc #148207: Click preview link for longer preview. DISTRIBUTION AGREEMENT by and between CONEXANT SYSTEMS, INC. and MINDSPEED TECHNOLOGIES, INC. ================================================================================ June 27, 2003 {PAGE} TABLE OF CONTENTS {TABLE} {CAPTION} Page ---- {S} {C} ARTICLE I DEFINITIONS..................................................................................... 1 Section 1.01 General........................................................................... 1 ARTICLE II THE CONTRIBUTION............................................................................... 18 Section 2.01 Intercorporate Reorganization..................................................... 18 Section 2.02 Financial Instruments............................................................. 21 Section 2.03 Intercompany Accounts and Arrangements............................................ 22 Section 2.04 Cash Management................................................................... 23 Section 2.05 The Mindspeed Board............................................................... 24 Section 2.06 Resignations; Transfer of Stock Held as Nominee................................... 24 Section 2.07 Mindspeed Certificate of Incorporation and Bylaws; Rights Plan.................... 25 Section 2.08 Consents.......................................................................... 25 ARTICLE III THE DISTRIBUTION.............................................................................. 26 Section 3.01 The Distribution.................................................................. 26 Section 3.02 Fractional Shares................................................................. 26 Section 3.03 Cooperation Prior to the Distribution............................................. 27 Section 3.04 Conexant Board Action; Conditions to the Distribution............................. 27 Section 3.05 Waiver of Conditions.............................................................. 28 ARTICLE IV MUTUAL RELEASE; INDEMNIFICATION; EXPENSES...................................................... 29 Section 4.01 Mutual Release.................................................................... 29 Section 4.02 Indemnification by Conexant....................................................... 30 Section 4.03 Indemnification by Mindspeed...................................................... 30 Section 4.04 Limitations on Indemnification Obligations........................................ 31 Section 4.05 Procedures Relating to Indemnification............................................ 32 Section 4.06 Remedies Cumulative............................................................... 34 Section 4.07 Indemnification under Tax Allocation Agreement.................................... 34 Section 4.08 Expenses.......................................................................... 34 ARTICLE V CERTAIN OTHER MATTERS........................................................................... 35 Section 5.01 Insurance......................................................................... 35 Section 5.02 Use of Names, Trademarks, etc..................................................... 38 Section 5.03 License of Intellectual Property.................................................. 41 Section 5.04 Jazz Warrant...................................................................... 51 Section 5.05 Charitable Funds.................................................................. 51 ARTICLE VI ACCESS TO INFORMATION.......................................................................... 51 Section 6.01 Provision of Corporate Records.................................................... 51 Section 6.02 Access to Information............................................................. 52 {/TABLE} i {PAGE} {TABLE} {S} {C} Section 6.03 Production of Witnesses........................................................... 53 Section 6.04 Retention of Records.............................................................. 53 Section 6.05 Confidentiality................................................................... 54 ARTICLE VII MISCELLANEOUS................................................................................. 54 Section 7.01 Entire Agreement; Construction.................................................... 54 Section 7.02 Survival of Agreements............................................................ 55 Section 7.03 Governing Law.......