Exhibit 10.f
EXECUTION COPY
$200,000,000
SKYWORKS SOLUTIONS, INC.
4 3/4% CONVERTIBLE SUBORDINATED NOTES DUE NOVEMBER 2007
PURCHASE AGREEMENT
November 6, 2002
Credit Suisse First Boston Corporation
As Representative of the Several Purchasers
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Skyworks Solutions, Inc., a Delaware corporation
(the "COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
initial "PURCHASERS") U.S.$200,000,000 principal amount of its 4 3/4%
Convertible Subordinated Notes Due 2007 (the "FIRM SECURITIES") and also
proposes to grant to the Purchasers an option, exercisable from time to time by
Credit Suisse First Boston Corporation to purchase an aggregate of up to an
additional $30,000,000 principal amount ("OPTIONAL SECURITIES") of its 4 3/4%
Convertible Subordinated Notes Due 2007 each to be issued under an Indenture,
dated as of November 12, 2002 (the "INDENTURE"), between the Company and State
Street Bank and Trust Company, as Trustee. The Firm Securities and the Optional
Securities which the Purchasers may elect to purchase pursuant to Section 3
hereof are collectively called the "OFFERED SECURITIES". The United States
Securities Act of 1933 is herein referred to as the "SECURITIES ACT".
The holders of the Offered Securities will be entitled to the
benefits of a Registration Rights Agreement dated the First Closing Date (as
hereinafter defined) between the Company and the Purchasers (the "REGISTRATION
RIGHTS AGREEMENT"), pursuant to which the Company agrees to file a registration
statement with the Securities and Exchange Commission (the "COMMISSION")
registering the resale of the Offered Securities and the Underlying Shares, as
hereinafter defined, under the Securities Act.
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers that:
(a) An offering circular relating to the Offered
Securities to be offered by the Purchasers has been prepared by the
Company. Such offering circular (the "OFFERING CIRCULAR"), as
supplemented as of the date of this Agreement and any other document
approved by the Company for use in connection with the contemplated
resale of the Offered Securities including any information
incorporated by reference therein into the Offering Circular, are
hereinafter collectively referred to as the "OFFERING DOCUMENT". As
of the date of this Agreement, and on any Closing Date (as
hereinafter defined), the Offering Document does not and will not
include any untrue statements 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
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Document based upon written information furnished to the Company by
any Purchaser through Credit Suisse First Boston Corporation
("CSFBC") specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b) hereof. The documents incorporated or deemed to be
incorporated by reference in the Offering Circular, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Securities Act or the United States Securities
Exchange Act of 1934 and the rules and regulations of the Commission
thereunder, as applicable.
(b) The Company has been duly incorporated and is an
existing corporation 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 the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where such failure to
so qualify 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 and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document; and each
subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where such failure to
so qualify would not individually or in the aggregate have a
Material Adverse Effect; the Company has no other subsidiaries as of
the date hereof which (A) on an individual basis, have total assets
or total revenues as of and for the fiscal year ended September 27,
2002, in each case as determined in accordance with generally
accepted accounting principles ("GAAP"), in excess of ten percent
(10%) of the Company's total assets or total revenues as reported on
a consolidated basis as of and for the fiscal year ended September
27, 2002, or (B) in the aggregate, have total assets or total
revenues as of and for the fiscal year ended September 27, 2002, as
determined in accordance with GAAP, in excess of ten percent (10%)
of the Company's total assets or total revenues as reported on a
consolidated basis as of and for the fiscal year ended September 27,
2002; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of
each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(d) All outstanding shares of capital stock of the
Company have been duly authorized, validly issued, fully paid and
are nonassessable and conform to the description thereof contained
in the Offering Document.
(e) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; 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, such Offered Securities will have been
duly executed and delivered and will conform to the description
thereof contained in the Offering Document and the Indenture and
such Offered Securities will constitute valid and legally binding
obligations of the Company, 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.
(f) When the Offered Securities are delivered and paid
for pursuant to this Agreement on the Closing Date, such Offered
Securities will be convertible into the shares of common stock
("UNDERLYING SHARES") of the Company in accordance with the terms of
the Indenture; the Underlying Shares initially issuable upon
conversion of such Offered Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon
such conversion, will be validly issued, fully paid and
nonassessable; the outstanding Underlying Shares have been duly
authorized and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the Offering
Document; and the
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stockholders of the Company have no preemptive rights with respect
to the Offered Securities or the Underlying Shares.
(g) Except as disclosed in the Offering Document, there
are no contracts, agreements or understandings between the Company
and any person that would give rise to a valid claim against the
Company or any Purchaser for a brokerage commission, finder's fee or
other like payment in connection with the offering of the Offered
Securities.
(h) 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 and the Registration Rights Agreement in connection
with the issuance and sale of the Offered Securities by the Company,
except for the order of the Commission declaring the Shelf
Registration Statement (as defined in the Registration Rights
Agreement) effective.
(i) The execution, delivery and performance of the
Indenture, this Agreement 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, (1) 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, (2) 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 (3)
the charter or by-laws of the Company or any such subsidiary,
except, in the case of subclauses (1) and (2), such breaches,
violations and defaults which would not individually or in the
aggregate have a Material Adverse Effect; and the Company has full
power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(j) This Agreement and the Registration Rights Agreement
have been duly authorized, executed and delivered by the Company.
(k) 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, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in
the 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.
(l) 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 individually or in the aggregate have
a Material Adverse Effect.
(m) No labor dispute with the employees of the Company
or any subsidiary exists or, to the knowledge of the Company, is
imminent that would reasonably be expected to have a Material
Adverse Effect.
(n) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct
the business now operated by them, 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, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
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(o) 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 might lead to such a claim.
(p) Except as disclosed in the Offering Document, there
are no pending actions, suits or proceedings against or affecting
the Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect
the ability of the Company to perform its obligations under the
Indenture, this Agreement or the Registration Rights Agreement, or
which are otherwise material in the context of the sale of the
Offered Securities; and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
(q) The financial statements included in the Offering
Document present fairly the financial position of the Company and
its consolidated subsidiaries (and deemed predecessor entity for
pre-merger periods where applicable) 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; and the assumptions used in preparing
the pro forma financial statements included in the Offering Document
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect
to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding
historical financial statement amounts.
(r) Except as disclosed in the Offering Document, since
June 28, 2002 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 Company on any class of its
capital stock.
(s) 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 (EDGAR) system.
(t) The Company is not an open-end investment company,
unit investment trust or face-amount certificate company that is or
is required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and
the Company is not and, after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds
thereof as will be described in the Offering Document, will not be
an "investment company" as defined in the Investment Company Act.
(u) 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.
(v) Assuming the accuracy of the representation and
warranties in Section 4 of this Agreement, the offer and sale of the
Offered Securities in the manner contemplated by this Agreement will
be exempt from the registration requirements of the Securities Act
by reason of Section 4(2) thereof and/or Regulation S and it is not
necessary to qualify an indenture in respect of the Offered
Securities under the United States Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE ACT") in connection with the offer,
sale
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and delivery of the Offered Securities to the several Purchasers in
the manner contemplated by this Agreement.
(w) Neither the Company nor any of its affiliates, nor
any person (except with respect to the Purchasers, as to whom the
Company makes no representations or warranties) acting on its or
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
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 Company, its affiliates and any person acting on
its or their behalf have complied and will comply with the offering
Restrictions Requirement in Regulation S. The Company, its
affiliates and any person acting on their behalf have not entered
and will not enter into any contractual arrangement with respect to
the distribution of the Offered Securities except for this
Agreement.
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 Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97% of the principal amount thereof
plus accrued interest from November 12, 2002 to the First Closing Date (as
hereinafter defined) the respective principal amounts of Firm Securities set
forth opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Firm Securities in the form of one or more permanent global Securities in
definitive form (the "FIRM 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 Firm
Securities shall be made by the Purchasers in Federal (same day) funds by wire
transfer to an account at a bank acceptable to CSFBC drawn to the order of the
Company at the office of Cravath, Swaine & Moore at 10:00 A.M. (New York time),
on November 12, 2002, or at such other time not later than seven full business
days thereafter as CSFBC and the Company determine, such time being herein
referred to as the "FIRST CLOSING DATE", against delivery to the Trustee as
custodian for DTC of the Firm Global Securities representing all of the Firm
Securities. The Firm Global Securities will be made available for checking at
the above office of Cravath, Swaine & Moore at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFBC given to the Company
from time to time not more than 30 days subsequent to the date of this
Agreement, the Purchasers may purchase all or less than all of the Optional
Securities at the purchase price per principal amount of Offered Securities
(including any accrued interest thereon to the related Optional Closing Date).
The Company agrees to sell to the Purchasers the principal amount of Optional
Securities specified in such notice and the Purchasers agree, severally and not
jointly, to purchase such Optional Securities. Such Optional Securities shall be
purchased from the Company for the account of each Purchaser in the same
proportion as the principal amount of Firm Securities set forth opposite such
Purchaser's name in Schedule A hereto bears to the total principal amount of
Firm Securities (subject to adjustment by CSFBC to eliminate fractions). No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as the "OPTIONAL CLOSING DATE", which may
be the First Closing Date (the First Closing Date and each Optional Closing
Date, if any, being sometimes referred to as a "CLOSING DATE"), shall be
determined by CSFBC on behalf of the several Purchasers but shall not be later
than seven full business days after written notice of election to purchase
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Optional Securities is given. The Company will deliver against payment of the
purchase price the Optional Securities being purchased on each Optional Closing
Date in the form of one or more permanent global Securities in definitive form
(each, an "OPTIONAL GLOBAL SECURITY") deposited with the Trustee as custodian
for DTC and registered in the name of Cede & Co., as nominee for DTC. Payment
for such Optional Securities shall be made by the Purchasers in Federal (same
day) funds by official check or checks or wire transfer to an account at a bank
acceptable to CSFBC drawn to the order of the Company at the office of Cravath,
Swaine & Moore, against delivery to the Trustee as custodian for DTC of the
Optional Global Securities representing all of the Optional Securities being
purchased on such Optional Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to
the Company 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 except
pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act. Each Purchaser
severally represents and agrees that it has not offered or sold, and
will not offer or sell, any Offered Securities constituting part of
its allotment within the United States, except in accordance with
Rule 903 or Rule 144A under the Securities Act. 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 Securities. 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 Company.
(d) Each Purchaser severally agrees that it and each of
its affiliates will not offer or sell the Offered Securities 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 date six
months after the date of issue of the Offered Securities will not
offer or sell any Offered Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them
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 Regulation 1995; (ii) it
has complied and will comply with all applicable provisions of the
Financial Services Act of 1986 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 issued or passed
on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Offered
Securities to a person who is of a kind described in Article 11(3)
of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued be issued or passed.
5. Certain Agreements of the Company. The Company agrees with
several the Purchasers that:
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(a) The Company will advise CSFBC promptly of any
proposal to amend or supplement the Offering Document and will not
effect such amendment or supplementation without CSFBC's consent.
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, or
if it is necessary at any such time to amend or supplement the
Offering Document to comply with any applicable law, the Company
promptly will notify CSFBC of such event and promptly will prepare,
at its own expense, an amendment or supplement which will correct
such statement or omission or effect such compliance. Neither
CSFBC's consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of the
Offering Document and all amendments and supplements to such
document, in each case as soon as available and in such quantities
as CSFBC requests, and the Company will furnish to CSFBC on the
First Closing Date three copies of the Offering Document signed by a
duly authorized officer of the Company. At any time when the Company
is not subject to Section 13 or 15(d) of the Exchange Act, the
Company will promptly furnish or cause to be furnished to CSFBC
(and, upon request, to each of the other Purchasers) and, upon
request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the
information required to be delivered to holders and prospective
purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales
by such holders of the Offered Securities. The Company will pay the
expenses of printing and distributing to the Purchasers all such
documents.
(c) The Company will arrange for the qualification of
the Offered Securities for sale and the determination of their
eligibility for investment under the laws of such states in the
United States as CSFBC designates and will continue such
qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers provided that the Company will
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state.
(d) During the period of two years after the later of
the First Closing Date and the last Optional Closing Date, the
Company will, upon request, furnish to CSFBC, each of the other
Purchasers, and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(e) During the period of two years after the later of
the Closing Date and the last Optional Closing Date, the Company
will not, and will not permit any of its 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.
(f) During the period of two years after the later of
the Closing Date and the last Optional Closing Date, the Company
will not 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 Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture
and the Registration Rights Agreement including (i) the fees and
expenses of the Trustee, and its 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 qualifying the Offered
Securities for trading in The Portal(SM) Market ("PORTAL") of The
Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv)
the cost of any advertising approved by the Company in connection
with the issue of the Offered Securities, (v) for 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 as CSFBC
designates and the printing of
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memoranda relating thereto if applicable, (vi) for any fees charged
by investment rating agencies for the rating of the Offered
Securities or the Exchange Securities, if applicable, and (vii) for
expenses incurred in distributing the Offering Document (including
any amendments and supplements thereto) to the Purchasers. The
Company will also pay or reimburse the Purchasers (to the extent
incurred by them) for all reasonable travel expenses of the
Purchasers and any other reasonable expenses of the Purchasers in
connection with attendance of meetings with prospective purchasers
of the Offered Securities from the Purchasers.
(h) In connection with the offering, until CSFBC shall
have notified the Company and the other Purchasers of the completion
of the resale of the Offered Securities, neither the Company nor any
of its affiliates has or will, either alone or with one or more
other persons, bid for or purchase for any account in which it or
any of its affiliates has a beneficial interest any Offered
Securities or attempt to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make bids
or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Offered Securities from
the Purchasers.
(i) For a period of 90 days after the date of the
initial offering of the Offered Securities by the Purchasers, the
Company will not offer, sell, contract to sell, pledge, or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any United States
dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue and shares of Common Stock of the Company or securities
convertible into or exchangeable or exercisable for shares of Common
Stock of the Company or warrants or other rights to purchase shares
of Common Stock of the Company, or publicly disclose the intentions
to make any such offer, sale, pledge or disposition, without the
prior written consent of CSFBC, except (i) as contemplated by the
agreement between the Company and Conexant Systems, Inc. dated
November 6, 2002, (ii) issuances of Common Stock pursuant to the
terms of an employee stock purchase plan in effect on the date
hereof and filing with the Commission registration statements on
Form S-8 with respect to such employee stock purchase plan, (iii)
grants of employee stock options pursuant to the terms of a plan in
effect on the date hereof and filing with the Commission
registration statements on Form S-8 with respect to such employee
stock option plan, (iv) the exercise of any other employee stock
option outstanding on the date hereof or (v) except as otherwise
contemplated by the Registration Rights Agreement. The Company will
not 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 Regulation S thereunder to cease to be
applicable to the offer and sale of the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations
of the several Purchasers to purchase and pay for the Offered Firm Securities on
the First Closing Date and for the Optional Securities on each Optional Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of officers of
the Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Purchasers shall have received a letter, dated
the First Closing Date, of KPMG LLP in form and substance
satisfactory to the Purchasers concerning the financial information
with respect to the Company set forth in the Offering Document,
including any documents incorporated by reference.
(b) The Purchasers shall have received a letter, dated
the First Closing Date, of Deloitte & Touche LLP in form and
substance satisfactory to the Purchasers concerning the financial
information with respect to the Company set forth in the Offering
Document, including any documents incorporated by reference.
(c) The agreement to restructure the Company's debt owed
to Conexant Systems, Inc., as described in the Company's press
release dated the date hereof, shall have been executed by all
parties thereto.
(d) 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
9
enterprise which, in the judgment of a majority in interest of the
Purchasers including CSFBC, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities of the Company
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or
any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating) or any announcement that the Company has been placed on
negative outlook; (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange
rates or exchange controls as would, in the judgment of a majority
in interest of the Purchasers including CSFBC, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market; (iv) any
material suspension or material limitation of trading in securities
generally on the New York Stock Exchange or any 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 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 CFSBC, 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.
(e) The Purchasers shall have received an opinion, dated
such Closing Date, of Testa, Hurwitz & Thibeault, LLP, counsel for
the Company, that:
(i) The Company has been duly incorporated
and is an existing corporation in good standing under
the laws of the State of Delaware, with corporate power
and authority to own its properties and conduct its
business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign
corporation in good standing in Massachusetts and
California;
(ii) The Indenture has been duly authorized,
executed and delivered; the Offered Securities have been
duly authorized, executed, authenticated, issued and
delivered and conform to the description thereof
contained in the Offering Document; the Indenture
constitutes a valid and legally binding obligation of
the Company 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 (it being agreed that
such counsel may recite that they are members only of
the bar of the Commonwealth of Massachusetts and that
its opinion as to enforceability assumes that the
applicable law governing enforceability is that of the
Commonwealth of Massachusetts;
(iii) The Offered Securities delivered on
such Closing Date are convertible into Common Stock of
the Company in accordance with the terms of the
Indenture; the shares of such Common Stock initially
issuable upon conversion of the Offered Securities
delivered on such Closing Date have been duly authorized
and reserved for issuance upon such conversion in
accordance with the term of the Indenture and, when
issued upon such conversion, will be validly issued,
fully paid and nonassessable; the outstanding shares of
such Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable and conform to
the description thereof contained in the Offering
Document; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities
or the Common Stock;
(iv) The Company is not and, after giving
effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof
as described in the Offering Document, will not be an
"investment company" as defined in the Investment
Company Act;
10
(v) 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 and the
Registration Rights Agreement in connection with the
issuance or sale of the Offered Securities by the
Company, except such as may be required under state
securities laws except for the order of the Commission
declaring the Exchange Offer Registration Statement or
the Shelf Registration Statement effective;
(vi) To such counsel's knowledge, there are
no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of
their respective properties that, if determined
adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect
the ability of the Company to perform their obligations
under the Indenture, this Agreement or the Registration
Rights Agreement, or which are otherwise material in the
context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to
such counsel's knowledge, contemplated;
(vii) The execution, delivery and
performance of the Indenture, this Agreement 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 having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or
any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any
such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement;
(viii) This Agreement and the Registration
Rights Agreement have been duly authorized, executed and
delivered by the Company; and
(ix) It is not necessary in connection with
(i) the offer, sale and delivery of the Offered
Securities by the Company to the several Purchasers
pursuant to this Agreement or (ii) the resales of the
Offered Securities by the several Purchasers in the
manner contemplated by this Agreement, to register the
Offered Securities under the Securities Act or to
qualify an indenture in respect thereof under the Trust
Indenture Act.
(f) The opinion of such counsel shall state the
following: that it has participated in conferences with officers and
other representatives of the Company, and representatives of the
independent public accountants for the Company, and your
representatives, at which conferences the contents of the Offering
Document and related matters were discussed and although such
counsel need not pass upon, nor assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in
the Offering Document, no facts have come to the attention of such
counsel that cause such counsel to believe that the Offering
Document, as of the date hereof and of such Closing Date, contained
any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, it
being understood that such counsel need express no belief with
respect to the financial statements, the notes thereto and related
schedules, or other financial data or statistical data derived from
the financial statements included in, or omitted from, the Offering
Document, and that the descriptions in the Offering Document or
statutes, legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required
to be shown therein;
(g) The Purchasers shall have received from Cravath,
Swaine & Moore, counsel for the Purchasers, such opinion or
opinions, dated such Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities, the Offering
Circular, the exemption from registration for the offer and sale of
the Offered Securities by the Company to the several Purchasers and
the resales by the several Purchasers as contemplated hereby and
other related matters as CSFBC may require, and the
11
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(h) The Purchasers shall have received a certificate,
dated such Closing Date, of the President or any Vice President and
a principal financial or accounting officer of the Company in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties
of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date, and that, subsequent to the date of the
most recent financial statements in the documents incorporated by
reference there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken
as a whole except as set forth in or contemplated by the Offering
Document and the documents incorporated by reference or as described
in such certificate.
(i) On the First Closing Date, the Purchasers shall have
received, in form and substance satisfactory to them, each lock-up
agreement signed by the persons listed on Schedule B hereto dated
November 4, 2002.
(j) On any optional Closing Dates the Purchasers shall
receive letters, dated such Closing Date, of each of KPMG LLP and
Deloitte & Touche LLP which meets the requirements of subsection (a)
of this section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC in its sole discretion may waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will 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 arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein, in 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 Company's failure to perform its 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 Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
through CSFBC specifically for use therein, it being understood and agreed that
the only such information consists of the information described as such in
subsection (b) below.
(b) Each Purchaser will severally and not jointly
indemnify and hold harmless the Company, the Company's directors and
officers and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities to which the Company 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
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
12
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Purchaser through CSFBC specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company 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 of the following information in the
Offering Document furnished on behalf of each Purchaser: the third
and fourth sentences of the tenth paragraph and the eleventh and
twelfth paragraph under the caption "Plan of Distribution"; provided
however, that the Purchasers shall not be liable for any losses,
claims, damages or liabilities arising out of or based upon the
Company's 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. 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 reasonably be expected to 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 or failure to act by or on behalf of
any indemnified party. No indemnified party shall effect any
settlement of any pending or threatened action without the prior
written consent of the indemnifying party, which such consent shall
not be unreasonably withheld or delayed.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Company 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 Company and the 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 Company 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 Company
bear to the total discounts and commissions received by the
Purchasers from the Company 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 Company 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 price at which the
Offered Securities purchased by it were resold exceeds the amount of
any damages which such Purchaser has otherwise been
13
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 Company under this Section
shall be in addition to any liability which the Company or 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 Company 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 on either the First
Closing Date or any Optional Closing Date 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 that the Purchasers are obligated to purchase on such Closing Date,
CSFBC may make arrangements satisfactory to the Company for the purchase of such
Offered Securities by other persons, including any of the Purchasers, but if no
such arrangements are made by such 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 on such Closing Date. 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 that the Purchasers are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Purchaser or the Company, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement shall not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination)]. 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 Company or their respective 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 the Purchasers, the Company, or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Purchasers is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company, and the
Purchasers pursuant to Section 7 shall remain in effect and if any Offered
Securities have been purchased hereunder the representations and warranties of
Section 2 and all representations under Section 5 shall also 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 termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (C),
(D) or (E) of Section 6(d)(ii), the Company 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 faxed and confirmed to the
Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: Transactions Advisory Group (fax:
212-325-4296), or, if sent to the Company, will be mailed, delivered or faxed
and confirmed to it at Skyworks Solutions Inc., 20 Sylvan Road, Woburn, MA,
01801 Attention: Paul E. Vincent (fax: (781- 824-4574); provided, however, that
any notice to any Purchaser pursuant to Section 7 will be mailed, delivered or
faxed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for
14
their benefit contained in the second and third sentences of Section 5(b) hereof
against the Company as if such holders were parties hereto.
12. Representations of Purchasers. You will act for the several
Purchasers in connection with the 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 Company hereby submits 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.
15
If the foregoing is in accordance with the Purchasers' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Purchasers in accordance with its terms.
Very truly yours,
SKYWORKS SOLUTIONS, INC.
by /s/ David J. Alridrich
-----------------------------------
Name: David J. Aldrich
Title: President and Chief Executive Officer
16
The foregoing Purchase Agreement is hereby confirmed and accepted as
of the date first above written.
By CREDIT SUISSE FIRST BOSTON CORPORATION
by /s/ Amr A. El Shaer
-----------------------------------
Name: Amr A. El Shaer
Title: Director
Acting on behalf of itself and as the
Representative of the several Purchasers
17
SCHEDULE A
PURCHASERS PRINCIPAL AMOUNT
OF FIRM SECURITIES
------------------
Credit Suisse First Boston Corporation..... $187,000,000
CIBC World Markets Corp.................... 6,500,000
U.S. Bancorp Piper Jaffray Inc............. 6,500,000
------------
Total $200,000,000
============
18
SCHEDULE B
David J. Aldrich
Kevin D. Barber
Donald R. Beall
Moiz M. Beguwala
Dwight W. Decker
Timothy R. Furey
Liam K. Griffin
Balakrishnan S. Iyer
Thomas C. Leonard
George M. Levan
David J. McLachlan
Paul E. Vincent