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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-K
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED JANUARY 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 1-5609
UNITRODE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
MARYLAND 04-2271186
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
7 CONTINENTAL BOULEVARD, MERRIMACK, NEW HAMPSHIRE 03054
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (603) 424-2410
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
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<CAPTION>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
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<S> <C>
COMMON STOCK, PAR VALUE $.01 NEW YORK STOCK EXCHANGE
PREFERRED STOCK PURCHASE RIGHTS NEW YORK STOCK EXCHANGE
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: NONE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of voting stock held by nonaffiliates of the
Registrant as of April 9, 1999, was $466,431,620. As of April 9, 1999 there were
32,152,191 shares of the Registrant's common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Part III incorporates by reference certain portions of the information from
the Registrant's definitive proxy statement for the Annual Meeting of
Stockholders to be held June 7, 1999.
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PART I
ITEM 1. BUSINESS
General Development of the Business
Unitrode Corporation (the "Company" or "Unitrode") was founded in 1960 and
is incorporated under the laws of Maryland. Since its inception, the Company and
its subsidiaries have designed, manufactured, marketed, and sold electronic
components and sub-systems. Unitrode divested various businesses from 1991
through 1994 in order to focus on the analog/linear and mixed-signal integrated
circuits business. In August 1998, the Company merged with Benchmarq
Microelectronics, Inc. ("Benchmarq"), a Dallas, Texas manufacturer of integrated
circuits and electronic modules for portable and power-sensitive electronic
products. Reference is hereby made to Note B to the Company's consolidated
financial statements included in Part II, Item 8 hereof for further information.
Financial Information about Industry Segments
The Company and its subsidiaries operate within a single industry segment,
the manufacture and sale of semiconductors, and have various product categories
within that one segment that share common technologies, markets and applications
as shown below.
Description of the Business
GENERAL
The Company currently designs, manufactures, markets and sells a range of
analog/linear and mixed-signal integrated circuits (ICs), modules, and
non-volatile products. Unitrode's analog IC business was founded in 1981;
additional analog and mixed-signal battery management products, as well as the
modular and non-volatile product lines, were added as a result of the merger
with Benchmarq. Today, the Company's principal products are proprietary,
high-performance analog/linear and mixed-signal integrated circuits that are
used in a variety of applications in EDP/computer, telecommunications,
industrial control and instrumentation, space communications, and
consumer/automotive markets. For the most part, these ICs are used either to
control switching power supplies, to control charging, conditioning, and
monitoring of rechargeable batteries, or to act as an interface between various
pieces of electronic equipment. The Company's Benchmarq-branded lines of
non-volatile static random access memory ("NVSRAM") products and real time clock
("RTC") products provide back-up memory, time and date functions in
telecommunications and computer equipment.
After restating the revenues for the combined Company, slightly more than
half of the revenues are derived from power management applications -- either in
the control of switching power supplies and DC/DC converters or in battery
management. About one-third of revenues comes from interface products,
principally Small Computer Systems Interface ("SCSI") active terminators.
Altogether, these comprise 90% of the company's revenues and represent the
strategic thrust of new product development. The non-volatile product lines
represent the remaining 10%.
THE ANALOG/LINEAR INTEGRATED CIRCUIT INDUSTRY
Integrated circuits are the building blocks of all electronic products
today and may be classified as either analog or digital, depending upon the
technique used to process or act upon electronic signals. Digital circuits
process binary (either "on" or "off") signals that are used mostly in computer
memory or logic devices and in micro-processors. Analog circuits process "real
world" signals which measure physical conditions, such as temperature, force,
speed, and pressure, the frequency and wavelength of which vary continuously.
Analog circuits are used to amplify, monitor, condition, or transform these
signals or to interpret these signals for use by digital logic. Advancements in
technology have led to the development of mixed-signal circuits which combine
certain types of analog and digital functions on the same IC in order to reduce
space, increase reliability, and improve performance.
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Worldwide merchant sales of analog ICs were estimated at approximately
$19.1 billion in calendar year 1998, or approximately 18% of the total
integrated circuit market, according to World Semiconductor Trade Statistics,
Inc. The Company estimates that its served available market, the portion of the
market in which its products directly compete, is about $2.3 billion. The
Company's share of this market is estimated at about 7%.
The Company believes that the analog/linear integrated circuit market
offers certain advantages compared to the digital market. The life cycles of
products in the analog integrated circuit market tend to be longer and customer
pricing is less volatile than in the digital market. The capital requirements
for analog/linear IC manufacture are lower than those in the digital IC area. In
addition, foreign competition from the Asian sector has been less interested in
the analog/linear IC business because the markets are smaller. Unlike products
in the digital market, the value in the product is usually the result of design
innovation utilizing a variety of manufacturing process technologies to address
specific customer applications, many of which are in so-called "niche" markets.
Portable power applications are particularly sensitive to battery technologies
and sometimes require modular solutions to fully meet the customer's needs.
PRODUCTS AND MARKETS
Advancements in digital processing, such as for lower power and higher
operating frequencies, are driving innovation in analog/linear circuitry.
Another significant trend in the marketplace is the need to reduce the size and
weight of components, particularly for portable and hand-held applications in
which these features are critical. As a result, more and more functions are
designed into a single chip, requiring both advancements in design and
improvements in process technology.
The Company's primary product offerings are comprised of analog ICs for
power supply control, lighting, power driving, power quality and power
factoring, battery management, as well as high-speed and high-power interface
applications. Products are developed as a result of careful market analysis, a
close working relationship with customers, and a thorough understanding of their
applications. As a result, most of the products are based upon proprietary
designs and are considered application specific standard products (ASSPs)
because they are designed for targeted tasks. Many of these products have become
standards in the industry.
The Company's major product categories and their functions are:
Power Management: These circuits are used in switching power supplies
(either AC/DC or DC/DC) to modulate, amplify, or regulate current or
voltages, or to protect other circuitry from irregular, spurious, or
erroneous signals. Examples of such products are current-mode pulse-width
modulators (PWMs), power factor pre-regulator ICs, phase-shift resonant
converters, power driver circuits, and load-share circuits. Using these
advanced control ICs, a customer can design a power supply that is smaller
and more efficient or can incorporate these ICs into a distributed power
system that responds to instantaneous changes in current levels required
during operation. These ICs are also designed to control the position,
speed, braking, and power consumption of small, fractional-horsepower DC
electric motors, such as servo, stepper and DC brushless motors.
Data Transmission/Interface: Interface circuits transfer data signals
between or within (an) electronic system(s). These circuits are used as
SCSI active termination circuits and as drivers or receivers in high-speed
data transmission, as well as for power interface, such as in hot swap and
CAN transceiver applications. The Company's largest product family in this
business line is used principally to provide active termination for 27, 18,
15, and 9 lines of data transmission in small computer systems interface
(SCSI) applications. Mixing and matching the 18- and 9-line terminators
allow designers flexibility in terminating wide-SCSI busses with 18 and 27
lines, as well as meeting requirements for multi-mode and low voltage
differential topologies. In fiscal year 1999, the Company further broadened
its technically advanced family of SCSI circuits with the introduction of a
low voltage differential SCSI circuit that meets ULTRA III SCSI
requirements.
Portable Power Management: These circuits and modules provide charge
control, capacity monitoring, conditioning, and power conversion in a
variety of battery-powered applications. Used in portable
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equipment, these circuits permit the safe charge and discharge of batteries
(particularly important in volatile lithium-ion batteries), promote
efficient use of battery power, and provide accurate capacity monitoring
for the user. In fiscal year 1999, the Company introduced patented
technology in lithium-ion battery controllers that are built directly into
the battery cells, as well as precedent-setting gas gauge circuits which
meet the Microsoft(R) ACPI (Advanced Configuration and Power Interface)
specification.
Non-Volatile Circuits and Modules: Included in this category are
non-volatile static random access memory ("NVSRAM") and real time clock
("RTC") product families. NVSRAM are modules which include a static random
access memory ("SRAM"), a lithium-button-cell battery, and a controller IC
that detects the loss of power in a main system and redirects it to the
backup battery cell. RTCs, which are sold in modular and IC forms and in
combination with a backup battery, maintain data and provide time and date
information during interruption of power to the main system.
Reference is hereby made to Note N to the Company's consolidated financial
statements included in Part II, Item 8 hereof for revenues by product
categories.
These products serve a broad range of markets including the EDP/computer,
telecommunications, industrial control and instrumentation, space
communications, and consumer/automotive. The following table identifies the
typical user applications by market:
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MARKET USER APPLICATION
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EDP/Computer............................ Mainframes
Workstations & Portable PCs
Terminals
Peripherals
RAIDS and servers
Battery Chargers/Monitors
Monitors
Telecommunications...................... Switching Stations
Routers & Hubs
Base Stations
Cellular and Wireless Phones
Global Positioning Systems
Battery Chargers/Monitors
Industrial Control & Instrumentation.... HVAC
Robotics
Sensors
Portable Instruments
Factory Automation
Video Displays
Energy Management
Lighting Systems
Space Communications.................... Satellites
Aircraft Controls
Advanced Weapons
Missile Systems
Displays
Consumer/Automotive..................... High Intensity Lighting
Airbags
Dashboard Displays
Anti-locking Brake Systems
Digital Cameras
Power Tools
</TABLE>
SALES AND DISTRIBUTION
Unitrode's products are sold worldwide by its sales force and through a
network of independent sales representatives and distributors. About 68% of
revenues are either through its direct sales force or
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manufacturer's representatives, and the remaining 32% is through distribution
networks in the U.S and overseas. U.S distribution represents about 13% of
revenues.
The Company has eight field sales offices to serve selected geographical
areas in North America and also has agreements with five distributors in North
America who maintain more than 300 branch locations. Field application engineers
are employed to work closely with customers to solve design problems and to
anticipate future product requirements.
For the year ended January 31, 1999, export sales represented 59% of sales.
Because most of the Company's export sales are billed and payable in United
States dollars, export sales are generally not directly subject to fluctuating
currency exchange rates. International sales are conducted through sales
offices, located in England, Germany, Hong Kong, Italy, Korea, and Singapore.
The Company also has agreements with distributors or sales representatives for
locations throughout Europe, Asia, Japan, South America, Australia, New Zealand,
and the Middle East.
The Company warrants its products to be free from defects in material or
manufacture and to conform to its published ratings and characteristics in
effect at the time and place of shipment. The Company also has agreements with
certain distributors which provide for price incentives on selected products,
price protection for inventories held by the distributor at the time of
reductions in published list prices and limited rights of return on unsold
products.
CUSTOMERS
The Company's customer base is comprised of merchant manufacturers,
contract manufacturers, electronics distributors, and customers with captive
manufacturing operations. The captive manufacturers use the Company's products
as integral components in their equipment and systems. In certain cases,
products sold to a subcontract-assembly company are specified by the captive
manufacturer. The merchant manufacturers typically function as original
equipment manufacturers (OEMs) as well as suppliers of sub-systems to other
OEMs. About 50% of sales are to customers in the electronic data processing
(EDP)/computer market, about 22% are to customers in communications markets,
about 20% are for industrial applications, and the remaining 8% is principally
for space communications/consumer customers. There were no customers greater
than 10% of total revenues in fiscal year 1999. One customer represented
approximately 17% and 24% of sales in fiscal years 1998 and 1997, respectively.
The Company has no material contracts with the United States Government.
BACKLOG
The Company's backlog was approximately $30.8 million on January 31, 1999,
all of which the Company expects to ship within the current fiscal year. Backlog
at January 31, 1998 was approximately $50.3 million, excluding bookings for a
custom circuit which was subsequently cancelled. The Company recognizes backlog
as orders that have a specific schedule for delivery within the ensuing twelve
months. The Company does not believe that its backlog at any time is necessarily
representative of the actual sales for any succeeding period.
While annual purchase agreements are common in the industry, the Company
does not recognize such agreements as backlog. The ordering practices of many
semiconductor customers have shifted from a practice of placing orders with
delivery dates extending over several months to a practice of placing orders
with shorter delivery dates.
MANUFACTURING
In 1981, the Company purchased a manufacturing facility in Merrimack, New
Hampshire ("Merrimack"), and converted it for IC wafer fabrication. Since that
time, the original building has been expanded several times and upgraded to
satisfy the need for increased capacity and additional process technologies,
including class-10 lithography capability, as well as to meet requirements for
quality and product reliability. During fiscal years 1997 and 1998, the Company
constructed and substantially equipped a 24,000
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square-foot facility designed to produce 6" BiCMOS wafers at a cost of about $39
million. This facility became operational in July 1998.
As of January 1999, the Company's major wafer fabrication process
technologies included standard and enhanced bipolar, bipolar-complementary
metallic oxide silicon (BiCMOS), and BiCMOS-double-diffused metallic oxide
silicon (BCDMOS). All of the bipolar processing takes place at the Company's
Merrimack facility, and by the end of fiscal year 1999, about half of the BiCMOS
processing was produced at the Company's newly constructed BiCMOS facility in
Merrimack. The remaining BiCMOS processing occurs at GMT Microelectronics
Corporation in Pennsylvania and at Chartered Semiconductor Manufacturing Company
in Singapore. All of the Company's CMOS processing occurs at Taiwan
Semiconductor Manufacturing Company (TSMC). (For further information, see Note L
to the Company's consolidated financial statements included in Part II, Item 8
hereof.) Other subcontract sources of wafer supply are used from time to time
and are being considered for future use by the Company.
The Company's bipolar processes are ideal for both precision analog
circuits and certain power management functions. The BiCMOS process is
well-suited for high-density linear designs, especially where speed and lower
power consumption are of primary importance. The BCDMOS process offers all of
the advantages of BiCMOS and, with the addition of lateral DMOS devices,
accommodates designs requiring higher current and voltage. CMOS processing
accommodates the algorithms required for many of the battery management products
as well as digital interface required in the non-volatile product lines. Each of
the four major fabrication technologies has numerous processing options
available to enable the product designer to achieve the optimal product
functionality, reliability, and performance.
Following wafer fabrication and wafer testing, the wafers are cut into die
which are then assembled into circuit packages. Almost all of the Company's
testing occurs at Unitrode Electronics Singapore Pte. Ltd. ("UES") from which
all IC assembly is managed. As is common in the industry, various IC assembly
vendors located in Asia perform most of the assembly, except for modular and
non-volatile products. Assembly of modular and non-volatile products occurs in
the Dallas facility and either employs automated pick-and-place equipment or
manual assembly. The Company currently believes that adequate assembly capacity
exists and that alternative sources could be obtained, should the need arise,
without significant interruption of the manufacturing process.
RAW MATERIALS
The Company believes that it has adequate sources of raw materials
available. Single crystal silicon is used as a semiconductor material in its
integrated circuits. Shortages in the supply of certain raw materials, including
silicon wafers and plastic molding compounds for packages, have occurred from
time to time. As is typical in the industry, the Company must allow for
significant lead times for certain raw materials. Multiple sources for raw
materials are generally maintained. The Company has not experienced any shortage
of energy and none is anticipated.
WORKING CAPITAL
The Company's business does not require working capital in excess of levels
that are considered normal in the industry. Further, it has not been necessary
for the Company to carry significant or unusual amounts of inventory to meet
rapid delivery requirements to customers or to assure itself of a continuous
allotment of raw materials from suppliers. In the past year, in order to support
the transport of processed wafers from a foundry to the Company's facility as
well as to respond to a growing industry trend for shorter delivery schedules,
the Company has produced certain product in anticipation of orders. The Company
believes that its inventory reserves are sufficient to support any excess and
obsolete product so inventoried.
PRODUCT QUALITY ASSURANCE AND RELIABILITY
The Company is committed to the principles of Total Quality Management
(TQM) in all aspects of its business. The foundation of the Company's TQM is a
quality system which is continuously reviewed and improved. The disciplines of
statistical process control are practiced throughout the Company's manufacturing
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operations. Rigorous procedures using cross-functional teams are in place to
qualify fabrication processes and products prior to shipment. The Company also
routinely qualifies suppliers and assembly subcontractors according to
established standards.
In fiscal year 1999, the Company's third-party registrars completed their
re-certification assessment of the Company's two manufacturing facilities
(Merrimack and UES) and renewed the Company's registration to ISO
9001/9002-1994, respectively. The Merrimack facility has continuously maintained
conformance to MIL-STD-38510 Class B and Class S since November 1985. In October
of 1996, the Defense Supply Center, Columbus (DSCC) granted the Company full QML
certification/qualification for MIL-PRF-38535, and the Company transitioned from
listing as a MIL-M-38510 certified manufacturer to listing on the MIL-PRF-38535
Qualified Manufacturers List.
PATENTS, LICENSES, AND TRADEMARKS
The Company owns a number of patents for product and processing techniques,
as well as certain trademarks relating to its business. The Company also has a
number of patent applications pending review. These patents and trademarks
provide it with some competitive advantage. However, Unitrode's business
prospects are dependent primarily upon the ability of its employees to work
closely with customers and develop and deliver high-quality, reliable products
at competitive prices, rather than on its ability to obtain and defend patents
and trademarks. No patent or trademark related to a particular product is of
material importance to the total business.
Unitrode continues to receive royalty payments from International Rectifier
Corporation ("IRC") as a result of a 1983 exclusive licensing agreement for
certain MOSFET technology which, with the Company's consent and in consideration
of royalty payments, IRC licenses to others. Depending upon the number of
licensees and the uses of the technology, royalty amounts may vary. In
particular, in the fourth quarter of fiscal year 1999, the Company recorded
one-time royalty income of $7.4 million following the settlement of patent
infringement litigation between IRC and two Japanese companies.
RESEARCH & DEVELOPMENT
The Company's development is directed towards new product design and
process technology. At January 31, 1999, 144 employees supported the Company's
research and development efforts. Design engineering offices are located in
Merrimack, New Hampshire; San Jose, California; Cary, North Carolina; Dallas,
Texas; and Austin, Texas.
Research and development expenditures were approximately $19,005,000,
$20,511,000, and $21,117,000 in the years ended January 31, 1999, 1998 and 1997,
respectively.
COMPETITION
The Company competes in the high-performance segment of the analog/linear
and mixed-signal integrated circuit market specifically addressing power
management, portable power, and data transmission/interface applications.
Unitrode has a number of competitors, some of which are substantially larger
than the Company, with significantly greater resources. Unitrode would be
adversely affected if its competitors introduced technologically superior
products or offered their products at prices significantly lower than those of
the Company's products. The major competitive factors include innovative design,
product performance, price, reliability, quality, customer support, and timely
delivery. The Company's ability to compete depends in large part upon the timely
introduction of products that are technologically innovative and which provide
cost-effective solutions for its customers.
SEASONAL ASPECTS
None.
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ENVIRONMENTAL REGULATION
The Company expects no material adverse effect upon earnings, capital
expenditures, or its competitive position as a result of compliance with
federal, state, or local provisions which have been enacted or adopted
regulating the discharge of materials to the environment, or otherwise relating
to the protection of the environment (see "Legal Proceedings"). Its facilities
have been designed to comply with government regulations, and the Company
maintains policies and procedures to assure on-going compliance. There can be no
assurance, however, that changes in such regulations will not impose costly
equipment or other requirements on the Company as well as others in the
industry.
EMPLOYEES
As of January 31, 1999, the Company had 783 employees of which 154 were
employed outside of the United States. Approximately 495 employees support the
manufacturing process, 92 employees conduct the sales and marketing effort, 144
employees support research and development, and 52 employees provide
administrative support.
Unitrode has never had a labor work stoppage, and no employees are
represented by a labor organization. The Company considers its employee
relations to be good.
Financial Information about Foreign and Domestic Operations and Export Sales
Reference is hereby made to Note N to the Company's consolidated financial
statements included in Part II, Item 8 hereof for information about foreign and
domestic operations and export sales.
ITEM 2. PROPERTIES
The Registrant's corporate offices and principal manufacturing facility are
located in Merrimack, New Hampshire. All buildings are well-maintained, suitable
and adequate for the present activities of the Registrant. Information regarding
the principal plants and properties appears below:
<TABLE>
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APPROXIMATE OWNED OR LEASE
FACILITY SIZE LEASED; LAND EXPIRATION
LOCATION DESCRIPTION (SQUARE FEET) AREA OWNED DATE
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<S> <C> <C> <C> <C>
Merrimack, New Hampshire......... Manufacturing; 174,400 Owned; 19.6 acres --
General Office
Ayer Rajah, Singapore............ Manufacturing; 25,800 Leased 2000/
General Office 2001
San Jose, California............. General Office 5,900 Leased 2003
Cary, North Carolina............. General Office 10,400 Leased 2001
Worcester, Massachusetts(1)...... Manufacturing; 83,000 Owned; 6.0 acres --
General Office
Lexington, Massachusetts(2)...... General Office 16,000 Leased 1999
Lowell, Massachusetts............ Land -- Owned; 1.3 acres --
Dallas, Texas.................... Manufacturing; 71,000 Leased 2000
General Office
Austin, Texas.................... General Office 1,955 Leased 2003
</TABLE>
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(1) Facility was sold in March 1999.
(2) Facility is sublet to a third party as of January 31, 1999.
ITEM 3. LEGAL PROCEEDINGS
ENVIRONMENTAL MATTERS:
The Company is involved in investigation and cleanup under the supervision
of the Maine Department of Environmental Protection of groundwater and soil
contamination at the former Westbrook, Maine wafer
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fabrication facility of its former Semiconductor Products Division (the
"Division"). Although the facility was closed in 1989, the Division was sold in
1992 and the Westbrook, Maine real estate was sold in 1994, the Company has
retained responsibility for environmental remediation at this site.
The Maine site is not a "potentially responsible party" ("PRP") site. The
Company has sole responsibility for remediation at the site. The Company has
installed a groundwater treatment system at the site that has been approved by
the Maine Department of Environmental Protection and is currently engaged in
remediation of the site. The annual cost of operation and maintenance of the
treatment system is approximately $50,000 and the annual cost of sampling and
analysis at the site is approximately $10,000. Additional sampling and
investigation costs during the current year to evaluate potential new
groundwater recovery locations to expedite site clean up are expected to be
approximately $50,000.
The Company has been notified by responsible state authorities in
California that it is one of a number of PRPs under relevant state statutes with
respect to a former hazardous waste treatment facility in Escondido, California
(the "Site"). The treatment facility was owned and operated by an entity wholly
unrelated to the Company. The Company, along with other financially viable PRPs,
has entered into consent orders with governmental authorities regarding the
voluntary payment of cleanup costs and voluntary cleanup measures with respect
to the Site. The Company has established a reserve which the Company believes to
be adequate for future environmental remediation costs at this Site, based upon
the probable and reasonably estimable work to be done at the Site, the other
PRPs involved at the Site and the Company's volumetric level of contribution to
the Site which is less than one-half of one percent of the total volume of waste
contributed to the Site by the parties to the consent orders. In view of the
difficulty in quantifying the potential costs or damages arising from the
alleged environmental hazards, it is not possible to determine with certainty
the extent of the Company's potential exposure at the Site. However, based upon
its investigation to date, the Company believes that its exposure (without
giving effect to the joint and several liability provisions referred to below)
would not be material and the Company believes that the reserves established
with respect to these liabilities will be adequate. Further, although statutes
provide that all PRPs may be held jointly and severally liable for the costs of
investigation and remediation of a site, after consideration of the liabilities
of other PRPs with respect to the Site and their respective levels of financial
responsibility, the Company believes that its liability with respect to the Site
is not material. If any liability on the part of the Company were to be measured
by the ratio of the waste attributable to the Company over the total waste
involved, based on information presently available to the Company, the Company's
aggregate liability with respect to the Site would not be material.
Although the Company has been identified as a PRP at the California site,
management of the Company does not believe that a loss exceeding amounts already
recognized has been or will be incurred that is material to a decision to buy or
sell the Company's securities. In the California situation, the Company is one
among 53 PRPs who have executed a PRP Group Agreement. The Company's volumetric
share of waste contributed to the site has been determined in the PRP allocation
agreement to be 0.4 percent. The parties to this agreement have agreed to share
costs on a pro rata basis, determined by the amount of waste contributed to the
site. A number of financially responsible PRPs have volumetric shares at levels
considerably higher than the Company's share. The PRPs have completed a remedial
investigation and feasibility study under a consent order entered into with the
California Department of Toxic Substance Control (the "DTSC"). A remedial action
plan has been approved by the DTSC and the PRPs have entered into an additional
consent order under which the remedial action plan will be carried out. The
budgeted costs of the PRP group to complete remediation of the site are
$15,000,000 of which the Company's share would be approximately $60,000. The
Company does not believe it to be reasonably possible that it will bear costs in
the California situation in excess of a pro rata share since the financial
contribution of its portion is not subject to uncertainty or dispute.
Environmental reserves are reviewed as events and developments warrant and
adjusted to reflect the likelihood of additional environmental expenditures.
Based upon information currently available to the Company, management believes
that any additional aggregate liability to which the Company may be subjected
from all the above-mentioned sites would not be material to future financial
results.
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LINEAR TECHNOLOGY CORPORATION LAWSUIT
In June 1997, Linear Technology Corporation ("LTC") filed a complaint in
the U.S. District Court for the Northern District of California (San Jose
Division) alleging that certain products of the Company and products of four
other defendants infringe an LTC patent. The complaint seeks damages and an
injunction against infringement of the patent. The Company has denied any
infringement and has filed a counterclaim seeking that the patent be declared
invalid. The Company believes that the resolution of this action will not have a
materially adverse effect on the Company's financial condition or results of
operations.
OTHER
In addition to the matters described above, from time to time as a normal
incidence of the nature of the Company's business, various claims, charges or
litigation are or may be asserted or commenced against the Company relating to,
among other things, contractual matters, patent disputes, environmental matters
and product liability. While there can be no assurance that the Company will
prevail in all these matters, the Company does not believe that these matters
will have a material adverse effect on the Company's consolidated financial
position or results of operations. However, an adverse resolution of one or more
of such matters could have an adverse effect on the Company's consolidated
results of operations in a quarter in which such matters might be resolved.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the Company's securities holders
during the fourth quarter of the fiscal year ended January 31, 1999.
Executive Officers of the Registrant
Information relating to the executive officers of the Company is set forth
below. All officers held office as of January 31, 1999, except Mr. Kokulis, who
joined the Company on February 15, 1999 and Mr. Gable, who resigned as Chairman
of the Board of Directors on August 3, 1998.
<TABLE>
<CAPTION>
NAME, AGE AND POSITION BUSINESS EXPERIENCE DURING PAST FIVE YEARS
- ---------------------- ------------------------------------------
<S> <C>
Robert J. Richardson -- 53................ Chairman and Chief Executive Officer (August 1998 to
Chairman, Chief Executive Officer and present); President and Chief Executive Officer (November
Director 1997 to August 1998); Vice President, New Business
Development and Corporate Marketing of Silicon Valley
Group, Inc. (October 1994 to October 1997); Corporate Vice
President and President of Silicon Valley Group's Track
Systems Division (October 1994 to June 1996); President,
SVG Lithography Systems Inc., Subsidiary of Silicon Valley
Group (June 1992 to October 1994).
Alan R. Schuele -- 52..................... President and Chief Operating Officer (August 1998 --
President, Chief Operating Officer and present); President and Chief Executive Officer, Benchmarq
Director Microelectronics, Inc. (May 1997 -- August 1998); Vice
President & General Manager, Industrial Products Division,
Cirrus Logic, Inc. (May 1993 -- May 1997).
Allan R. Campbell -- 57................... Senior Vice President, General Counsel and Secretary (June
Senior Vice President, General Counsel 1994 to present).
And Secretary
Robert L. Gable -- 68..................... Chairman (June 1990 to August 1998); Chief Executive
Director Officer (June 1990 to November 1997); President (March 1992
to January 1996).
</TABLE>
9
<PAGE> 11
<TABLE>
<CAPTION>
NAME, AGE AND POSITION BUSINESS EXPERIENCE DURING PAST FIVE YEARS
- ---------------------- ------------------------------------------
<S> <C>
Raymond G. Hawkins -- 53.................. Executive Vice President, Sales & Marketing (May
Executive Vice President, Sales & 1998 -- present); Sr. Vice President, Sales & Marketing,
Marketing Chartered Semiconductor Manufacturing, Inc. (May
1996 -- September 1997); Vice President & General Manager,
Americas Division, National Semiconductor Corporation
(December 1988 -- May 1996).
John L. Kokulis -- 40..................... Executive Vice President and Chief Financial Officer
Executive Vice President and Chief (February 1999 to present); Vice President, Chief Financial
Financial Officer Officer, Allegro Microsystems, Inc. (April 1994 to February
1999).
S. Kelley MacDonald -- 53................. Vice President, Corporate Communications (June 1992 to
Vice President, Corporate Communications present).
Patrick J. Moquin -- 50................... Vice President, Human Resources (August 1995 to present);
Vice President, Human Resources Senior Director, Human Resources, Worldwide Field
Operations, Sun Microsystems, Inc. (May 1994 to July 1995).
</TABLE>
There are no family relationships among these officers, nor any arrangement
or understanding between any officer and any other person pursuant to which the
officer was elected.
To the Company's knowledge, based solely upon the review of copies of such
reports furnished to the Company and written representations that no other
reports were required, during the fiscal year ended January 31, 1999, the
Company complied with all Section 16(a) filing requirements applicable to its
officers, directors and any beneficial owners holding greater than ten percent
of its common stock.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
Reference is hereby made to Note O to the Company's consolidated financial
statements included in Part II, Item 8 hereof regarding the Market for the
Registrant's Common Equity and Related Stockholder Matters.
10
<PAGE> 12
ITEM 6. SELECTED FINANCIAL DATA -- FIVE-YEAR FINANCIAL SUMMARY
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES
(IN THOUSANDS EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
--------------------------------------------------------------------
1999 1998 1997 1996 1995
----------- ------------ ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
OPERATING RESULTS(A)
Net revenues.................... $ 157,801 $ 222,040 $ 173,679 $ 145,363 $ 118,386
Gross profit.................... 71,813 116,907 88,108 72,791 55,565
As a % of net revenues........ 46% 53% 51% 50% 47%
Depreciation and amortization... 14,945 13,367 13,317 10,024 8,221
R&D expenses.................... 19,005 20,511 21,117 17,058 11,418
Operating income................ 10,734 51,681 35,923 28,011 12,033
Royalties....................... 9,669 2,886 2,582 2,396 1,722
Pretax income................... 15,213 58,077 40,955 32,024 14,736
Tax provision rate.............. 43% 36% 32% 33% 23%
Net income...................... 8,646 36,906 27,739 21,321 11,403
As a % of net revenues........ 5% 17% 16% 15% 10%
As a % of average
stockholders' equity....... 4% 22% 22% 21% 14%
SHARE DATA(B)
Basic earnings per share........ $ .27 $ 1.20 $ .93 $ .75 $ .39
Diluted earnings per share...... .27 1.13 .89 .71 .37
High and low price.............. 8.13-22.50 15.88-42.31 7.38-18.50 8.81-16.25 6.75-10.50
Closing year-end price.......... 15.91 18.13 18.38 13.13 9.32
Year-end book value............. 6.53 6.19 4.72 3.77 3.09
Shares used for earnings per
share:
Basic......................... 31,639 30,673 29,700 28,445 29,275
Diluted....................... 32,601 32,709 31,096 30,087 30,815
Number of stockholders of
record........................ 565 600 645 738 778
FINANCIAL DATA
Cash/short-term investments..... $ 91,551 $ 85,017 $ 67,466 $ 48,881 $ 36,313
Total assets.................... 239,964 242,887 179,212 142,309 117,912
Net working capital............. 126,043 100,367 78,277 62,530 45,133
Current ratio................... 5.63 3.22 3.30 3.16 2.79
Plant and equipment-net......... 77,346 83,652 47,396 39,012 34,342
Capital expenditures............ 10,229 46,844 22,324 13,008 15,997
Long-term debt and capital lease
obligations................... -- 702 1,260 891 2,632
Stockholders' equity............ 209,230 193,586 141,883 110,673 89,285
</TABLE>
11
<PAGE> 13
ITEM 6. SELECTED FINANCIAL DATA -- FIVE-YEAR FINANCIAL SUMMARY (CONTINUED)
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
--------------------------------------------------------------------
1999 1998 1997 1996 1995
----------- ------------ ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
PRO FORMA OPERATING RESULTS(c)
Net revenues.................... $ 157,801 $ 222,040 $ 173,679 $ 145,363 $ 110,258
Gross profit.................... 74,409 116,907 88,108 72,791 53,601
As a % of net revenues........ 47% 53% 51% 50% 49%
Depreciation and amortization... 14,945 13,367 13,317 10,024 7,316
R&D expenses.................... 19,005 20,511 21,117 17,058 10,751
Operating income................ 22,506 51,681 35,923 28,011 18,430
Royalties....................... 2,256 2,886 2,582 2,396 1,722
Pretax income................... 28,913 58,077 40,955 32,024 21,025
Tax provision rate.............. 37% 36% 32% 33% 32%
Net income...................... 18,161 36,906 27,739 21,321 14,381
As a % of net revenues........ 12% 17% 16% 15% 13%
Basic earnings per share........ .57 1.20 .93 .75 .49
Diluted earnings per share...... .56 1.13 .89 .71 .47
</TABLE>
- ---------------
(a) All periods have been restated to include the results of Benchmarq which was
acquired on August 3, 1998.
(b) Share and per share data adjusted for a two-for-one stock split and the
adoption of SFAS 128.
(c) Fiscal year 1999 excludes special charges and the benefit of one-time
royalty income; fiscal year 1995 represents results from continuing
operations only.
12
<PAGE> 14
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
On August 3, 1998, the Company completed its acquisition of Benchmarq
Microelectronics, Inc. ("Benchmarq"), a Dallas, Texas provider of integrated
circuits and electronics modules for portable and power-sensitive products. In
connection with the transaction, the Company issued approximately 7.2 million
shares of its common stock. The merger was accounted for on a
pooling-of-interests basis. Accordingly, the Company's consolidated financial
statements have been restated to include the accounts and operations of
Benchmarq for all periods presented.
RESULTS OF OPERATIONS
The following table sets forth the percentage of net revenues and the
yearly percentage change in certain financial data for the years indicated:
<TABLE>
<CAPTION>
ITEMS AS A PERCENTAGE OF NET REVENUES PERCENT CHANGES YEAR TO YEAR
---------------------------------------- ------------------------------
1999* 1999 1998 1997 1999*/98 1999/98 1998/97
------- ------- ------- ------- -------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Net revenues..................... 100.0% 100.0% 100.0% 100.0% (28.9)% (28.9)% 27.8%
Cost of revenues................. 52.8% 54.5% 47.3% 49.3% (20.7)% (18.2)% 22.9%
----- ----- ----- ----- ----- ----- ----
Gross profit..................... 47.2% 45.5% 52.7% 50.7% (36.4)% (38.6)% 32.7%
Operating expenses:
Research and development......... 12.0% 12.0% 9.2% 12.2% (7.3)% (7.3)% (2.9)%
Selling, general and
administrative................. 19.5% 19.5% 17.3% 17.9% (19.8)% (19.8)% 23.7%
New fab pre-operating costs...... 1.3% 1.3% 2.8% -- (67.0)% (67.0)% N/A
Merger costs..................... -- 1.7% -- -- -- N/A --
Restructuring and other costs.... -- 4.1% -- -- -- N/A --
----- ----- ----- ----- ----- ----- ----
Total operating expenses......... 32.9% 38.7% 29.4% 30.0% (20.4)% (6.4)% 25.0%
----- ----- ----- ----- ----- ----- ----
Income from operations........... 14.3% 6.8% 23.3% 20.7% (56.5)% (79.2)% 43.9%
Other income..................... 4.1% 2.8% 2.9% 2.9% -- (30.0)% 27.1%
----- ----- ----- ----- ----- ----- ----
Income before income taxes....... 18.3% 9.6% 26.2% 23.6% (50.2)% (73.8)% 41.8%
Income tax provision............. 6.8% 4.2% 9.5% 7.6% (49.2)% (69.0)% 60.2%
----- ----- ----- ----- ----- ----- ----
Net income....................... 11.5% 5.5% 16.6% 16.0% (50.8)% (76.6)% 33.0%
===== ===== ===== ===== ===== ===== ====
</TABLE>
- ---------------
* Pro forma results exclude special charges and the benefit of one-time royalty
income
N/A Percentage not meaningful
FISCAL YEAR 1999 VERSUS FISCAL YEAR 1998
Net revenues in fiscal year 1999 were $157.8 million, a decrease of $64.2
million, or 29%, compared to $222.0 million in fiscal year 1998. Approximately
56%, or $36 million, of the decline was due to the discontinued sale of a custom
circuit manufactured for a single customer in the previous year. A general
slowdown in demand for semiconductors due to excess customer inventories
accumulated in the previous year, as well as weakness in the EDP market,
accounted for the balance of the decrease. International revenues accounted for
approximately 59% of total revenues in fiscal year 1999 compared to 64% in
fiscal year 1998.
Gross profit as a percentage of net revenues was 45.5% in fiscal year 1999,
compared to 52.7% in fiscal year 1998. The decline was primarily due to the
lower sales volume that reduced utilization of manufacturing capacity, the
initial ramp-up costs in the new wafer fabrication facility, as well as the
inventory write-offs of $2.6 million in the first quarter. The write-offs were
primarily due to the discontinued production and sale of the custom circuit
mentioned above. Excluding these write-offs, gross profit as a percentage of
fiscal year 1999 net revenues would have been 47.2%.
Research and development expenses were $19.0 million, or 12.0% of net
revenues, compared to $20.5 million, or 9.2% of net revenues in the prior year.
The increased percentage was principally due to the lower sales volume,
partially offset by reductions in accruals for incentive compensation. Selling,
general and
13
<PAGE> 15
administrative expenses were $30.8 million, or 19.5% of net revenues in fiscal
year 1999, compared to $38.4 million, or 17.3% of net revenues in fiscal year
1998. The decrease was principally due to a reduction in variable costs,
including employee incentive compensation, sales commissions, and merger-related
redundancies.
In fiscal years 1999 and 1998 respectively, the Company recorded $2.1
million and $6.3 million in pre-operating expenses associated with the new 6"
BiCMOS wafer fabrication facility in Merrimack, New Hampshire, which became
operational in July 1998. Pre-operating expenses, which were incurred prior to
the commencement of production, represented costs for the qualification of
equipment and processes, as well for recruitment and training of personnel.
Special charges in fiscal year 1999 totaled $18.5 million, of which $2.6
million was charged to cost of sales, $6.5 million was charged to operating
expenses for restructuring and other costs, and $9.4 million was charged to
other income (expense). The Company also recorded merger-related transaction
costs of $2.7 million in fiscal year 1999 as a result of the Benchmarq
acquisition. For further information, see Notes B and C to the Company's
consolidated financial statements.
Fiscal year 1999 results include fourth-quarter pretax income of $7.4
million which represents a one-time royalty benefit from International Rectifier
Corporation ("IRC"), the result of settlement of patent infringement litigation
between IRC and two other companies whereby these companies agreed to a license
to certain IRC patents relating to power MOSFET technology. Under the terms of a
license agreement between Unitrode and IRC, Unitrode released its rights as
exclusive licensee of IRC's power MOSFET technology and, as a result, is
entitled to receive a certain share of royalties paid to IRC by IRC's licensees.
The consolidated effective tax rate in fiscal year 1999 was 43.2% compared
to 36.5% in fiscal year 1998. This increase was due primarily to non-deductible
merger-related transaction costs. Net income decreased from $36.9 million, or
$1.13 per diluted share in fiscal year 1998 to $8.6 million, or $.27 per diluted
share in fiscal year 1999. Fiscal year 1999 net income, excluding special
charges and the one-time royalty benefit, was $18.2 million, or $.56 per diluted
share.
Backlog at January 31, 1999 was $30.8 million compared to $56.2 million at
January 31, 1998. Excluding bookings for the discontinued custom circuit,
bookings in fiscal year 1999 were $140 million, down 27% from $193 million in
the prior year. The Company's book-to-bill ratio was negative during the first
three quarters of fiscal year 1999 as a result of the general industry-wide
slowdown in demand for semiconductors. This slowdown was due to the build-up of
excess customer inventories accumulated during the previous year, as well as
weakness in the EDP market. The Company's orders in the fourth quarter exceeded
shipments as orders strengthened across all market segments, and this trend has
continued to date in the first quarter of fiscal year 2000.
FISCAL YEAR 1998 VERSUS FISCAL YEAR 1997
Net revenues in fiscal year 1998 were $222.0 million, an increase of $48.3
million, or 28%, compared with $173.7 million in fiscal year 1997. Revenues from
power management and interface products increased 51% and 69%, respectively, due
primarily to strength in the first half of the year in electronic data and
computer peripheral markets. Revenue from portable power products rose 39%
compared to the prior year principally due to increased unit sales in the EDP
market. Revenues in a custom circuit manufactured for a disk drive manufacturer
declined 19% compared to the prior year, due to a significant decline in demand
from this customer in the fourth quarter. International revenues accounted for
approximately 64% of total revenues in fiscal year 1998 compared to 69% in
fiscal year 1997.
Gross profit as a percentage of net revenues was 52.7% in fiscal year 1998,
compared to 50.7% in fiscal year 1997. The increase in gross margin percentage
was due primarily to an increase in unit sales of higher margin portable power
products.
Research and development expenses in fiscal year 1998 were approximately
$20.5 million, or 9.2% of net revenues, compared with $21.1 million, or 12.2% of
net revenues in the prior year. The decrease in percentage of net revenues was
principally due to the increased sales volume. Selling, general and
administrative expenses
14
<PAGE> 16
were $38.4 million, or 17.3% of net revenues in fiscal year 1998, compared to
$31.1 million, or 17.9 % of net revenues in fiscal year 1997. The $7.3 million
increase in selling, general and administrative expenses was principally due to
variable costs, such as employee incentive compensation and sales commissions on
the higher volume of sales, and legal expenses associated with patent litigation
between Benchmarq and Dallas Semiconductor Corporation.
Interest income in fiscal year 1998 rose by approximately $0.8 million,
primarily due to the increase in the Company's cash and short-term investments.
The consolidated effective tax rate in fiscal year 1998 was 36.5%, compared to
32.3% in fiscal year 1997. This increase was primarily due to the recognition in
the earlier year of a benefit related to net operating loss carryforwards. Net
income increased 33% from $27.7 million, or $.89 per diluted share, in fiscal
year 1997 to $36.9 million, or $1.13 per diluted share in fiscal year 1998.
Backlog at January 31, 1998 was $56.2 million, compared to $52.0 million at
January 31, 1997. Bookings in fiscal year 1998 were $228 million, an increase of
$43 million, or 23%, from fiscal year 1997. Bookings were particularly strong in
the first half of fiscal year 1998 as a result of demand from customers in the
EDP and peripheral markets.
FINANCIAL CONDITION
Cash and short-term investments at January 31, 1999, increased by $6.5
million to $91.6 million from the beginning of fiscal year 1999. The principal
sources of cash were $11.4 million from operating activities and $4.3 million in
proceeds from exercises of employee stock options under the Company's stock
option plans; these were offset by $10.2 million in capital expenditures.
In March 1999, the Company entered into a new three-year, multi-bank
revolving credit agreement that provides for borrowings of up to $50 million.
Borrowings under the credit agreement bear interest at variable spreads over
LIBOR. The revolving credit agreement includes covenants that, among other
things, specify a maximum leverage limit, a minimum fixed-charge coverage ratio,
and a minimum level of tangible net worth.
Capital spending to support ongoing operations totaled approximately $10.2
million in fiscal year 1999. The Company plans to spend approximately $12 to $15
million for capital assets in fiscal year 2000. It is anticipated that the
Company's operating cash requirements for fiscal year 2000, including planned
capital expenditures, will be met by internally generated funds and available
cash.
The ratio of current assets to current liabilities was 5.63:1 at January
31, 1999, compared with 3.22:1 at January 31, 1998. Working capital of $126.0
million at January 31, 1999, increased by $25.7 million from January 31, 1998.
Accounts receivable at January 31, 1999, decreased by $5.6 million from
January 31, 1998 primarily due to the lower level of sales. Receivable days
sales outstanding increased to 52 days at January 31, 1999, compared to 47 days
at January 31, 1998, as a result of changes in the Company's mix of business.
Inventories at January 31, 1999, increased by $4.6 million from January 31,
1998, primarily to support the increase in turns business (orders booked and
shipped in the same period), to facilitate the orderly transfer of probe and
test from the Company's Dallas facility to its Singapore operation, and to
support the transfer of certain BiCMOS wafer production from an outside foundry
to the Merrimack facility. Royalty receivable increased by $5.5 million due to
the recording of a one-time royalty benefit from International Rectifier
Corporation. Accrued employee compensation and benefits were $9.1 million less
than in the prior year due to lower incentive accruals in fiscal year 1999.
Other current liabilities declined by $4.9 million primarily due to $3.2 million
of legal and new fab pre-operating costs and payments.
On March 15, 1999, the Board of Directors of the Company authorized the
repurchase of up to one million shares of its common stock. It is expected that
the Company will repurchase the shares from time to time in the open market.
15
<PAGE> 17
IMPACT OF THE YEAR 2000 ISSUE
The Company, including the Benchmarq operations, has completed an
assessment of all computer-based software and hardware to ensure Year 2000
compliance. Certain non-Year 2000 compliant systems and equipment are being
modified, scrapped, or replaced. In addition, the Company has begun replacement
of certain business systems with a Year 2000 compliant enterprise resource
planning ("ERP") system in order to improve reporting and productivity. Formal
communications have been established with all significant vendors to determine
the extent to which the Company could be impacted by third-parties' failure to
remediate their own Year 2000 issues. The Company is currently unaware of any
Year 2000 issues at the Company or a third party that will not be compliant in a
timely manner and could result in a material effect on the Company's business,
results of operations, or financial condition. Year 2000 project expenditures,
excluding capitalized costs associated with the ERP system, have been immaterial
to date and are not anticipated to exceed $1.0 million. The Year 2000 project is
expected to be substantially completed by June 1999.
NEW ACCOUNTING STANDARDS
See Note A in the Company's consolidated financial statements for a
discussion of recently issued accounting standards.
INFLATION
Management has concluded the effect of inflation had no significant impact
on operations.
FACTORS AFFECTING FUTURE RESULTS
The Company's future operating results are difficult to predict and may be
affected by a number of factors including the timely ability to develop and
market new products, competitive pricing pressures, fluctuations in
manufacturing yields, adequate availability of processed silicon wafers from
foundry sources, insufficient or excess manufacturing and testing capacity, the
amount of product booked and shipped within a quarter, changes in product mix,
and fluctuating economic conditions in the United States, Asia and other
international markets.
The semiconductor market historically has been cyclical and subject to
significant fluctuations. As a result, orders and backlog may fluctuate widely
from time to time. Weakness in the EDP, communications or industrial markets may
affect the Company's bookings and the scheduling of existing backlog. Because of
this and other factors, there can be no assurance that the Company will not
experience material fluctuations in future operating results on a quarterly or
annual basis as a result of its inability to adjust its manufacturing capacity
or its cost structure to increased or reduced customer demand.
The Company is dependent upon a combination of its own wafer fabrication
facility in Merrimack, New Hampshire, and outside foundries for manufacturing
capacity. There can be no assurance that its internal capacity will match demand
or that the Company will provide sufficient orders to meet its contractual
obligations to its outside suppliers.
The Company's new 6" BiCMOS wafer fabrication facility became operational
in July 1998. Full qualification of manufacturing processes and products is
continuing. There can be no assurance that certain processes and products will
be qualified on time, that the added capacity will match demand for its
products, or that the ramp-up of production will result in acceptable
manufacturing yields. The Company's additional capacity has resulted in a
significant increase in operating expenses, such as depreciation, and if
revenues do not increase to offset these additional expenses, the Company's
future gross profit as a percentage of sales would be adversely affected.
Meanwhile, other semiconductor manufacturers are also expanding or planning to
expand their production capacity over the next several years. There can be no
assurance that the expansion by the Company and its competitors will not lead to
over-capacity in the industry, which could lead to price erosion that could
adversely affect the Company's operating results.
The integration of the Company's operations following the merger with
Benchmarq is ongoing and may temporarily divert management's attention. As a
result, near-term revenues and operating results could be
16
<PAGE> 18
affected. Also, there can be no assurance that the combined Company will be able
to retain its key technical and management personnel or that the combined
Company will realize all or any of the anticipated benefits of the merger.
The semiconductor industry is characterized by frequent litigation
regarding patent and other intellectual property rights. There can be no
assurance that future claims or assertions will not materially adversely affect
the Company's business, financial condition, results of operations, or cash
flows.
FORWARD-LOOKING INFORMATION
The Private Securities Litigation Reform Act of 1995 (the "Act") provides a
new "safe harbor" for forward-looking statements so long as those statements are
identified as forward-looking and are accompanied by meaningful cautionary
statements identifying important factors that could cause actual results to
differ materially from those discussed in the statement. The Company desires to
take advantage of the new "safe harbor" provisions of the Act. Certain
information contained herein, particularly the information appearing under the
headings "Business," "Results of Operations," "Financial Condition", and
"Factors Affecting Future Results" are forward-looking. Information regarding
certain important factors that could cause actual results of operations or
outcomes of other events to differ materially from any such forward-looking
statement appears together with such statement, and/or elsewhere herein.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company's primary exposures to market risk are the effect of
fluctuations in interest rates earned on its cash equivalents and short-term
investments, and the effect of volatility in currencies on its foreign-
denominated trade receivables and cash.
At January 31, 1999, the Company held $74.2 million in cash equivalents
consisting of taxable and tax-exempt municipal securities. Cash equivalents are
classified as held to maturity and valued at amortized cost which approximates
fair market value. A hypothetical 10 percent increase in interest rates would
not have a material impact on the fair market value of these instruments due to
their short maturity.
The Company enters into forward foreign exchange contracts as a hedge
against trade receivables and cash denominated in foreign currencies. Realized
and unrealized gains and losses on these contracts are included in net income
and offset the foreign exchange gains or losses on the hedged trade receivables
and cash. At January 31, 1999, the Company had one-month forward contracts to
sell foreign currencies of 1.5 million German marks, 1.2 million French francs,
and 0.3 million British pounds totaling approximately $1.5 million. The Company
recorded total foreign currency losses of $58,000 in fiscal year 1999. A
hypothetical 10 percent change in foreign currency rates would not have a
material impact on the Company's results of operations.
17
<PAGE> 19
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
BALANCE SHEETS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES
(IN THOUSANDS)
<TABLE>
<CAPTION>
JANUARY 31
--------------------
1999 1998
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 91,551 $ 67,956
Short-term investments.................................... -- 17,061
Accounts receivable, net of allowances of $2,206 in 1999
and $2,020 in 1998..................................... 23,541 29,109
Inventories............................................... 22,356 17,734
Notes receivable.......................................... 631 709
Deferred income taxes..................................... 5,232 8,744
Royalty receivable........................................ 6,215 764
Deposits.................................................. 1,448 2,002
Prepaid expenses and other current assets................. 2,320 1,435
-------- --------
Total current assets.............................. 153,294 145,514
-------- --------
Property, plant and equipment, at cost:
Land...................................................... 1,836 1,836
Buildings and improvements................................ 29,637 14,355
Machinery and equipment................................... 114,313 83,148
Computer software......................................... 7,551 5,217
Equipment under capital lease............................. 2,683 4,154
Construction in progress.................................. -- 42,961
-------- --------
156,020 151,671
Less: accumulated depreciation............................ 78,674 68,019
-------- --------
Property, plant and equipment, net..................... 77,346 83,652
-------- --------
Deposits.................................................... 2,800 3,602
Other assets and deferred charges........................... 2,754 4,012
Restricted cash and investments............................. 1,035 1,180
Notes and other receivables, net of unamortized discount of
$10 in 1999 and $32 in 1998............................... 1,323 2,828
Deferred income taxes....................................... -- 403
Excess of cost over net assets acquired, less accumulated
amortization of $2,678 in 1999 and $2,394 in 1998......... 1,412 1,696
-------- --------
Total assets...................................... $239,964 $242,887
======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
18
<PAGE> 20
BALANCE SHEETS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES
(IN THOUSANDS EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
JANUARY 31
--------------------
1999 1998
-------- --------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable.......................................... $ 12,623 $ 16,125
Income taxes payable...................................... 3,836 4,282
Accrued employee compensation and benefits................ 2,025 11,155
Accrued distributor liability............................. 4,007 3,348
Obligations under capital lease........................... 701 1,229
Other current liabilities................................. 4,059 9,008
-------- --------
Total current liabilities......................... 27,251 45,147
-------- --------
Deferred income taxes....................................... 2,540 2,322
Obligations under capital lease............................. -- 702
Other long-term liabilities................................. 943 1,130
-------- --------
Total liabilities................................. 30,734 49,301
-------- --------
Commitments and contingent liabilities (Note L)
Stockholders' equity:
Preferred stock, $.01 par value:
Authorized -- 1,000,000 shares, none issued
Common stock, $.01 par value
Authorized -- 60,000,000 shares
Issued and outstanding -- 32,018,766 in 1999 and
31,252,099 in 1998.................................... 320 313
Additional paid-in capital................................ 77,748 71,203
Retained earnings......................................... 131,861 123,191
Net unrealized gain on short-term investments............. -- 12
Deferred compensation..................................... (699) (1,133)
-------- --------
Total stockholders' equity........................ 209,230 193,586
-------- --------
Total liabilities and stockholders' equity........ $239,964 $242,887
======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
19
<PAGE> 21
STATEMENTS OF OPERATIONS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES
(IN THOUSANDS EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
--------------------------------
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C>
Net revenues............................................... $157,801 $222,040 $173,679
Cost of revenues........................................... 85,988 105,133 85,571
-------- -------- --------
Gross profit............................................. 71,813 116,907 88,108
-------- -------- --------
Operating expenses:
Research and development................................. 19,005 20,511 21,117
Selling, general and administrative...................... 30,823 38,426 31,068
New fab pre-operating expenses........................... 2,075 6,289 --
Merger costs............................................. 2,672 -- --
Restructuring and other costs............................ 6,504 -- --
-------- -------- --------
Total operating expenses.............................. 61,079 65,226 52,185
-------- -------- --------
Income from operations..................................... 10,734 51,681 35,923
-------- -------- --------
Other income (expense):
Royalty income........................................... 9,669 2,886 2,582
Interest income.......................................... 3,740 3,536 2,786
Interest expense......................................... (108) (273) (306)
Non-operating income (expense), net...................... (8,822) 247 (30)
-------- -------- --------
Total other income.................................... 4,479 6,396 5,032
-------- -------- --------
Income before income tax provision......................... 15,213 58,077 40,955
Income tax provision....................................... 6,567 21,171 13,216
-------- -------- --------
Net income................................................. $ 8,646 $ 36,906 $ 27,739
======== ======== ========
Basic earnings per share................................... $ .27 $ 1.20 $ .93
======== ======== ========
Diluted earnings per share................................. $ .27 $ 1.13 $ .89
======== ======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
20
<PAGE> 22
STATEMENTS OF CASH FLOWS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
--------------------------------
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income............................................... $ 8,646 $ 36,906 $ 27,739
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization......................... 14,945 13,367 13,317
Writedowns of assets.................................. 6,786 1,135 1,340
Deferred and other compensation....................... 1,082 312 126
Deferred income taxes................................. 4,053 (2,497) (1,374)
Other, net............................................ (238) 264 (338)
(Increase) decrease in assets:
Accounts receivable................................. 4,157 (9,023) 1,796
Inventories......................................... (6,526) (2,748) (1,863)
Royalty receivable.................................. (5,451) (764) (713)
Deposits............................................ 1,356 (2,203) (2,372)
Prepaid expenses and other current assets........... (680) 1,230 237
Other assets and deferred charges................... (482) (105) 89
Increase (decrease) in liabilities:
Accounts payable.................................... (3,632) 5,165 (33)
Income taxes payable................................ 812 3,881 3,325
Accrued employee compensation and benefits.......... (9,080) 6,121 (3,740)
Accrued distributor liability....................... 649 2,205 333
Other current and long-term liabilities............. (4,966) 1,498 2,753
-------- -------- --------
Total adjustments................................ 2,785 17,838 12,883
-------- -------- --------
Net cash provided by operating activities........... 11,431 54,744 40,622
-------- -------- --------
Cash flows from investing activities:
Property, plant and equipment and deposits............... (10,229) (46,844) (22,324)
Repayment of notes receivable............................ 889 905 831
Proceeds on sale of assets and investments............... 428 107 362
Maturities of short-term investments..................... 26,419 55,215 31,134
Purchases of short-term investments...................... (8,905) (59,397) (44,027)
Other, net............................................... (66) (399) (1,889)
-------- -------- --------
Net cash provided by investing activities........... 8,536 (50,413) (35,913)
-------- -------- --------
Cash flows from financing activities:
Purchase of common stock................................. -- (274) (350)
Proceeds from issuance of common stock................... -- -- 584
Payments under capital lease obligations................. (1,115) (1,397) (1,335)
Proceeds from exercise of stock options and warrants..... 4,341 10,709 2,098
-------- -------- --------
Net cash provided by financing activities........... 3,226 9,038 997
-------- -------- --------
Addition of Benchmarq's net cash activity for January
1998..................................................... 402 -- --
-------- -------- --------
Net increase in cash and cash equivalents.................. 23,595 13,369 5,706
Cash and cash equivalents at beginning of year............. 67,956 54,587 48,881
-------- -------- --------
Cash and cash equivalents at end of year................... $ 91,551 $ 67,956 $ 54,587
======== ======== ========
Supplemental information:
Interest paid............................................ $ 127 $ 273 $ 301
Income taxes paid, net of tax refunds.................... $ 1,713 $ 19,800 $ 11,912
</TABLE>
The accompanying notes are an integral part of the financial statements.
21
<PAGE> 23
STATEMENTS OF STOCKHOLDERS' EQUITY
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES
(IN THOUSANDS)
<TABLE>
<CAPTION>
NET
UNREALIZED
ADDITIONAL GAIN ON TOTAL
COMMON PAID-IN RETAINED DEFERRED SHORT-TERM STOCKHOLDERS'
STOCK CAPITAL EARNINGS COMPENSATION INVESTMENTS EQUITY
------- ---------- -------- ------------ ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance, January 31, 1996........ $ 2,938 $48,864 $ 59,169 $ (298) $ -- $110,673
Net income....................... 27,739 27,739
Acquisition of common stock...... (3) (86) (261) (350)
Issuance of common stock......... 8 576 584
Compensation on stock options.... 19 19
Exercise of stock options........ 63 2,035 2,098
Income tax benefit related to
stock plans.................... 983 983
Forfeiture of restricted stock... (1) (40) 41 --
Net unrealized gain on short-term
investments.................... 11 11
Amortization of deferred
compensation................... 126 126
------- ------- -------- ------- ---- --------
Balance, January 31, 1997........ 3,005 52,351 86,647 (131) 11 141,883
Net income....................... 36,906 36,906
Acquisition of common stock...... (2) (66) (206) (274)
Compensation on stock options.... 109 109
Exercise of stock warrants....... 44 6,191 6,235
Exercise of stock options........ 68 4,406 4,474
Income tax benefit related to
stock plans.................... 4,049 4,049
Amortization of deferred
compensation................... 203 203
Net unrealized gain on short-term
investments.................... 1 1
Reduction in par value........... (2,959) 2,959 --
Two-for-one stock split.......... 156 (156) --
Grant of restricted stock........ 1 1,204 (1,205) --
------- ------- -------- ------- ---- --------
Balance, January 31, 1998........ 313 71,203 123,191 (1,133) 12 193,586
Net income....................... 8,646 8,646
Net unrealized loss on short-term
investments.................... (12) (12)
Compensation on stock options.... 648 648
Exercise of stock options........ 6 4,335 4,341
Income tax benefit related to
stock plans.................... 1,274 1,274
Amortization of deferred
compensation................... 434 434
Addition of Benchmarq's net
activity for January 1998...... 1 288 24 313
------- ------- -------- ------- ---- --------
Balance, January 31, 1999........ $ 320 $77,748 $131,861 $ (699) $ -- $209,230
======= ======= ======== ======= ==== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
22
<PAGE> 24
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES
(DOLLARS IN THOUSANDS EXCEPT PER SHARE DATA)
NOTE A SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION: The consolidated financial statements include
the accounts of all domestic and foreign subsidiaries. All material intercompany
transactions are eliminated. The accounts of certain immaterial foreign
subsidiaries are included on the basis of fiscal years ending in December.
USE OF ESTIMATES: The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
REVENUE RECOGNITION: The Company recognizes revenue at the time of
shipment. A portion of the Company's sales are made to certain distributors
under arrangements which provide for price incentives on selected products,
price protection for inventories held by the distributor at the time of
reductions in published list prices, and limited rights of return on unsold
product. The Company records a distributor liability reserve for price
adjustments and estimated sales returns.
TRANSLATION OF FOREIGN CURRENCIES: The accounts of foreign subsidiaries
have been translated using the U.S. dollar as the functional currency. Monetary
and non-monetary asset and liability accounts have been translated at the
exchange rate in effect at each year end and historical rates, respectively.
Income and expense accounts are translated at average monthly rates, except for
depreciation, which is translated at historical rates. Exchange gains and losses
are included in other income (expense).
INCOME TAXES: The provision for income taxes is computed on the pretax
income of the consolidated subsidiaries located within each taxing country based
on the current tax law. Deferred taxes result from the future tax consequences
associated with temporary differences between the amount of assets and
liabilities recorded for tax and financial accounting purposes.
EARNINGS PER SHARE: Basic earnings per share is computed by dividing net
income by the weighted-average number of common shares outstanding, and diluted
earnings per share is computed by dividing net income by the weighted-average
number of common shares outstanding and dilutive potential common shares
outstanding, such as stock options. The following table sets forth the
computation of basic and diluted earnings per share.
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
-----------------------------------------
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Net income.................................. $ 8,646 $ 36,906 $ 27,739
=========== =========== ===========
Basic weighted average shares outstanding... 31,639,414 30,673,403 29,700,451
Effect of dilutive securities-stock
options................................... 961,402 1,952,112 1,346,995
Effect of dilutive securities-stock
warrants.................................. -- 83,903 48,923
----------- ----------- -----------
Diluted weighted average shares
outstanding............................... 32,600,816 32,709,418 31,096,369
=========== =========== ===========
Basic earnings per share.................... $ .27 $ 1.20 $ .93
=========== =========== ===========
Diluted earnings per share.................. $ .27 $ 1.13 $ .89
=========== =========== ===========
</TABLE>
Options to purchase 1,234,300, 68,250 and 967,900 shares of common stock
were outstanding as of January 31, 1999, 1998 and 1997, respectively, but not
included in the computation of diluted earnings per share because the options'
exercise prices were greater than the average market price of the common shares
as of such dates and, therefore, would be anti-dilutive under the treasury stock
method. Anti-dilutive stock options at January 31, 1999, had exercise prices
ranging from $16.03 to $40.36.
23
<PAGE> 25
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
CASH EQUIVALENTS AND SHORT-TERM INVESTMENTS: The Company considers highly
liquid investments in debt securities purchased within three months of their
maturity date to be cash equivalents. Cash equivalents are classified as held to
maturity and valued at amortized cost, which approximates fair market value.
Investments in debt securities that mature within one year and do not meet the
definition of cash equivalents are included in short-term investments.
Short-term investments are classified as available for sale and valued at fair
value, with unrealized gains and losses reported as a separate component of
stockholders' equity.
INVENTORIES: Inventories are stated at average cost, but not in excess of
net realizable value.
PROPERTY, PLANT AND EQUIPMENT: Property, plant and equipment are stated at
cost and are depreciated over the estimated useful lives of the individual
assets. When properties are retired or otherwise disposed of, the related cost
and accumulated depreciation are removed from the accounts, and any resulting
gain or loss is reflected in the statements of operations. The estimated useful
lives of major classes of depreciable assets are as follows:
<TABLE>
<S> <C>
Building and improvements.................................. 10 -- 25 years
Machinery and equipment.................................... 3 -- 10 years
Computer software.......................................... 3 years
Equipment under capital lease.............................. 5 years
</TABLE>
The Company is implementing an enterprise-wide information system. External
direct costs of purchased software and related services, and payroll-related
costs of employees directly associated with the development and implementation
of the project are capitalized. Capitalized costs are classified as computer
software, and amortization begins when the associated modules are ready for
their intended use. Training costs and costs to re-engineer business processes
are expensed as incurred.
INTANGIBLE ASSETS: The excess cost over net assets acquired is amortized
over periods not to exceed 12 years. Patents, copyrights, trademarks, and other
intangible assets are amortized over their estimated useful lives.
STOCKHOLDERS' EQUITY: Pursuant to Maryland law, any shares of common stock
reacquired by the Company constitute unissued shares.
FORWARD FOREIGN EXCHANGE CONTRACTS: The Company enters into forward
foreign exchange contracts principally as a hedge against trade receivables and
cash denominated in foreign currencies. Realized and unrealized gains and losses
on these contracts are included in net income and offset the foreign exchange
gains or losses on the hedged trade receivables and cash. At January 31, 1999,
the Company had one-month forward contracts to sell foreign currencies of 1.5
million German marks, 1.2 million French francs, and 0.3 million British pounds,
totaling approximately $1.5 million. At January 31, 1998, the Company had
contracts of varying maturities to sell foreign currencies of 1.3 million German
marks, 2.3 million French francs, and 0.4 million British pounds, totaling
approximately $1.7 million.
FAIR VALUE OF FINANCIAL INSTRUMENTS: The Company has used a variety of
methods and assumptions to estimate the fair value of the Company's financial
instruments. The carrying amounts for cash and cash equivalents, short-term
investments, accounts receivable, and accounts payable approximate fair value
because of the short maturity of these instruments. Forward foreign exchange
contracts are valued based on quoted market prices of comparable contracts. The
carrying amount of the Company's notes receivable approximate fair value based
upon comparable credit risks and the interest rates which incorporate such
risks. It was not practicable to estimate the fair value of the Company's
investment in an untraded, closely held foundry, GMT Microelectronics
Corporation. This investment is valued at original cost less a valuation
allowance.
24
<PAGE> 26
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
NEW ACCOUNTING STANDARDS: In June 1997, the Financial Accounting Standards
Board ("FASB") issued Statement of Financial Accounting Standards ("SFAS") No.
130, "Reporting Comprehensive Income", which establishes standards for reporting
and display of comprehensive income and its components (revenue, expenses,
gains, and losses) in a full set of general purpose financial statements. This
standard was first adopted February 1, 1998, and had no impact on the Company's
financial condition or results of operations.
In June 1997, the FASB issued SFAS No. 131, "Disclosure about Segments of
an Enterprise and Related Information", which affects the information public
companies provide about operating segments. SFAS No. 131, which is based on the
management approach to segment reporting, establishes requirements to report
selected segment information quarterly and to report entity-wide disclosures
about products and services, major customers, and the countries in which the
entity holds material assets and reports material revenue. The Company first
adopted SFAS No. 131 for its fiscal year 1999 annual report.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities." This new standard requires companies to
record derivatives on the balance sheet as assets or liabilities, measured at
fair value. Gains and losses resulting from changes in the values of those
derivatives should be reported in the statements of operations or as a deferred
item, depending on the use of the derivatives and whether they qualify for hedge
accounting. This standard is effective for the Company's fiscal year ending
January 31, 2000, and the Company has not yet determined the effect, if any, of
adopting the new standard.
CONCENTRATION OF CREDIT RISK: Financial instruments which subject the
Company to concentrations of credit risk consist principally of cash
equivalents, short-term investments, and trade accounts receivable. The Company
invests cash equivalents and short-term investments in high-quality debt
securities. Credit exposure to any one entity is limited by Company policy. No
losses have been experienced on such financial instruments as of January 31,
1999. The Company's trade accounts receivables are primarily from sales to
customers in the EDP/computer, telecommunications and industrial markets. The
Company's ten largest customers accounted for approximately 48%, 55% and 51% of
sales in fiscal years 1999, 1998 and 1997, respectively, and approximately 33%
and 49% of accounts receivable at January 31, 1999 and 1998. There were no
customers greater than 10% of total revenues in fiscal year 1999. One customer
represented approximately 17% and 24% of sales in fiscal year 1998 and 1997,
respectively. The Company has not historically experienced significant credit
losses related to receivables from individual customers or groups of customers
in any particular industry or geographic area. Credit risk to certain countries
is further limited through the use of irrevocable letters of credit and bank
guarantees.
RECLASSIFICATIONS: Certain amounts for fiscal years 1998 and 1997 have
been reclassified to conform with presentation of similar amounts in fiscal year
1999.
NOTE B BENCHMARQ MERGER
On August 3, 1998, the Company completed its acquisition of Benchmarq
Microelectronics, Inc. ("Benchmarq"), a Dallas, Texas supplier of integrated
circuits and electronics modules for portable and power-sensitive electronics
products. In connection with the transaction, the Company issued approximately
7.2 million shares of its common stock. The merger was accounted for on a
pooling-of-interests basis. Accordingly, the Company's consolidated financial
statements have been restated to include the accounts and operations of
Benchmarq for all periods presented. The Company recorded combined
merger-related transaction costs of $2.7 million primarily for professional
services, such as investment banking, legal, and accounting fees.
Due to the different fiscal year-ends of the Company and Benchmarq,
prior-year financial information for different fiscal periods has been combined.
The audited balance sheet as of January 31, 1998, combines the
25
<PAGE> 27
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
Company's January 31, 1998 financial position with Benchmarq's December 31, 1997
financial position. The Company's statements of operations and cash flows for
its fiscal years ended January 31, 1998 and 1997, are combined with Benchmarq's
statements of operations and cash flows for the fiscal years ended December 31,
1997 and 1996. Benchmarq's net income for the one-month period ended January 31,
1998 was $24,000 and was excluded from the Company's combined fiscal year 1999
operating results. Benchmarq's net cash flows for the one-month period ended
January 31, 1998 were $402,000 and have been added as a separate line in the
Company's combined fiscal year 1999 statement of cash flows.
Certain balances of Benchmarq's financial statements have been reclassified
to conform with the Company's financial statement presentation. Certain
adjustments have also been made in order that accounting policies of Benchmarq
conform to those of Unitrode.
Revenues and net income of the combined entities for the six-month period
prior to the merger are presented in the following table. Prior to the merger,
the companies had no intercompany transactions and certain amounts in
Benchmarq's financial statements were reclassified to conform to Unitrode's
presentations. Merger-related transaction costs of $2.3 million recorded in the
historical net income for the first six months have been excluded from the
unaudited pro forma results.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
PRO FORMA RESULTS AUGUST 1, 1998
- ----------------- ----------------
<S> <C>
NET REVENUES:
Unitrode.................................................. $57,724
Benchmarq................................................. 18,105
-------
Combined.................................................. $75,829
=======
NET INCOME:
Unitrode.................................................. $ 1,998
Benchmarq................................................. 1,282
-------
Combined.................................................. $ 3,280
=======
</TABLE>
The following table represents a reconciliation of net revenues and net
income previously reported by the combining companies to those presented in the
accompanying consolidated financial statements.
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
----------------------
1998 1997
--------- ---------
<S> <C> <C>
NET REVENUES:
Unitrode.................................................. $177,603 $133,526
Benchmarq................................................. 44,437 40,153
-------- --------
Combined.................................................. $222,040 $173,679
======== ========
NET INCOME:
Unitrode.................................................. $ 30,235 $ 20,677
Benchmarq................................................. 6,671 7,062
-------- --------
Combined.................................................. $ 36,906 $ 27,739
======== ========
</TABLE>
26
<PAGE> 28
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
NOTE C SPECIAL CHARGES
FIRST QUARTER OF FISCAL YEAR 1999
During the first quarter of fiscal year 1999, the Company recorded pre-tax
special charges totaling $6.4 million of which $2.6 million was charged to cost
of sales, $1.3 million was charged to restructuring and other costs in operating
expenses, and $2.5 million was charged to other income (expense).
The charge of $2.6 million to cost of sales was for inventory write-offs
and consisted primarily of a custom product which was manufactured in the first
quarter of fiscal year 1999 for a specific customer. The product did not meet
the customer's specifications and has been scrapped.
A charge to operating expenses of $1.3 million was for actions intended to
align the business with reduced customer demand in fiscal year 1999. These
restructuring charges consisted of $0.8 million used to writedown equipment
associated with the production of 4" bipolar wafers to net realizable value and
$0.5 million for severance costs associated with a reduction in the workforce of
about 5% or 34 employees. The annualized reduction in cost resulting from the
restructuring was anticipated to be approximately $1.8 million.
The $2.5 million charge to other income (expense) was to establish a
valuation allowance on the Company's equity investment in an outside foundry.
The significant reduction in the Company's business during the first quarter of
fiscal year 1999 and the subsequent ramp-up of the Company's 6" fab have
substantially reduced expected future demand for wafers produced at this foundry
and negatively impacted this foundry's financial condition and cash flows. The
Company currently is the primary customer of this foundry.
THIRD QUARTER OF FISCAL YEAR 1999
During the third quarter of fiscal year 1999, the Company recorded pre-tax
special charges totaling $12.1 million of which $5.2 million was charged to
restructuring and other costs in operating expenses, and $6.9 million was
charged to other income (expense).
The $5.2 million charged to operating expenses was primarily for costs
related to the integration of Benchmarq. These costs principally consisted of
$1.2 million for equipment writedowns intended to consolidate back-end
operations, $3.0 million in severance costs to reduce redundant activities, and
$1.0 million in other integration costs which includes costs associated with
relocating the Dallas probe and test operations to the Company's Singapore
facility.
The $6.9 million charge to other income (expense) consisted of costs
incurred to settle a patent infringement lawsuit between Dallas Semiconductor
Corporation and Benchmarq, as well as a patent infringement lawsuit initiated by
the Lemelson Medical Education & Research Foundation, Limited Partnership
against Unitrode.
SPECIAL CHARGES ROLLFORWARD:
<TABLE>
<CAPTION>
BALANCE SHEET
----------------------------------------------------------------------------
VALUATION ALLOWANCES OTHER CURRENT LIABILITIES
SPECIAL ------------------------------------ --------------------------- PAID-
CHARGES FIXED OTHER ASSETS & EMPLOYEE LEGAL IN
PROVISION INVENTORY ASSETS DEFERRED CHGS. COSTS COSTS OTHER CAPITAL
--------- --------- ------ --------------- -------- ------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Q1 FY99 Charge.................. $ 6,363 $ 2,596 $ -- $3,165 $ 520 $ -- $ 82 $ --
Q3 FY99 Charge.................. 12,078 -- 550 627 2,411 6,841 1,001 648
FY99 Payments/Disposals......... -- (2,596) -- (633) (1,382) (6,841) (583) --
------- ------- ---- ------ ------- ------- ------ ----
1/31/99 Balance................. $18,441 $ -- $550 $3,159 $ 1,549 $ -- $ 500 $648
======= ======= ==== ====== ======= ======= ====== ====
</TABLE>
27
<PAGE> 29
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
NOTE D NON-OPERATING INCOME (EXPENSE)
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
-------------------------
1999 1998 1997
------- ----- -----
<S> <C> <C> <C>
Legal settlements........................................ $(6,841) $ -- $ --
Writedown of assets...................................... (2,500) (465) (504)
Net rental income........................................ 481 451 296
Foreign exchange gains (losses).......................... (58) 384 (50)
Gains (losses) on sale of assets......................... 101 (113) 230
Other.................................................... (5) (10) (2)
------- ----- -----
Total.......................................... $(8,822) $ 247 $ (30)
======= ===== =====
</TABLE>
NOTE E CASH EQUIVALENTS AND SHORT-TERM INVESTMENTS
Cash equivalents consisted of the following:
<TABLE>
<CAPTION>
JANUARY 31
------------------
1999 1998
------- -------
<S> <C> <C>
Cash equivalents:
Tax-exempt municipal securities........................... $61,000 $14,775
Taxable municipal securities.............................. 13,150 42,250
------- -------
$74,150 $57,025
======= =======
</TABLE>
Short-term investments consisted of the following available-for-sale
securities:
<TABLE>
<CAPTION>
UNREALIZED FAIR
COST GAIN (LOSS) VALUE
------- ----------- -------
<S> <C> <C> <C>
January 31, 1999.................................... $ -- $-- $ --
======= === =======
January 31, 1998.................................... $17,049 $12 $17,061
======= === =======
</TABLE>
28
<PAGE> 30
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
NOTE F NOTES AND OTHER RECEIVABLES
Notes and other receivables consisted of the following:
<TABLE>
<CAPTION>
JANUARY 31
----------------
1999 1998
------ ------
<S> <C> <C>
Microsemi Corporation 5% collateralized subordinated
promissory notes, monthly payments through July 1, 2002... $1,681 $2,109
Microsemi Corporation 5% subordinated promissory note,
quarterly payments through June 30, 1999.................. 100 300
Microsemi Corporation other receivables, annual payments
through June 30, 1999, net of unamortized discount of $10
in 1999 and of $32 in 1998................................ 71 128
GMT Microelectronics Corporation 11.75% subordinated
debenture, due January 9, 2002............................ -- 1,191
GMT Microelectronics Corporation secured promissory note at
prime, due July 1, 1998................................... -- 80
Employee promissory note, 6% per annum, due September,
2000...................................................... 102 --
Reserve allowance........................................... -- (271)
------ ------
1,954 3,537
Less: current maturities.................................... 631 709
------ ------
Long-term notes and other receivables....................... $1,323 $2,828
====== ======
</TABLE>
NOTE G INVENTORIES
Inventories consisted of the following:
<TABLE>
<CAPTION>
JANUARY 31
------------------
1999 1998
------- -------
<S> <C> <C>
Raw materials............................................... $ 1,659 $ 2,654
Work in process............................................. 13,766 9,998
Finished goods.............................................. 6,931 5,082
------- -------
Total inventory................................... $22,356 $17,734
======= =======
</TABLE>
NOTE H OTHER ASSETS AND DEFERRED CHARGES
Other assets and deferred charges consisted of the following:
<TABLE>
<CAPTION>
JANUARY 31
------------------
1999 1998
------- -------
<S> <C> <C>
Investments................................................. $ 3,500 $ 2,500
Assets for sale............................................. 3,335 2,711
Other....................................................... 393 116
Valuation allowance-investments............................. (2,500) --
Valuation allowance-assets of sale.......................... (1,974) (1,315)
------- -------
Total............................................. $ 2,754 $ 4,012
======= =======
</TABLE>
On January 9, 1995, the Company entered into an agreement with GMT
Microelectronics Corporation ("GMT"), a Norristown, Pennsylvania foundry, to
supply processed silicon wafers. As part of the agreement, the Company invested
$1 million in exchange for one million shares of GMT common stock and $1 million
in
29
<PAGE> 31
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
a 11.75% subordinated debenture due January 9, 2002. The Company made an
additional investment in February 1996 of $1.5 million in exchange for 871,791
shares of 5%, ten-year redeemable preferred stock. In the first quarter of
fiscal year 1999, the Company established a valuation allowance of $2.5 million
on its GMT investment. In November 1998, the Company exchanged its $1 million
subordinated debenture for approximately five million shares of convertible
redeemable preferred stock in conjunction with GMT obtaining additional
financing from outside lenders.
At January 31, 1999, "Assets for sale" consisted of land and a building in
Worcester, Massachusetts and various idle equipment held for sale. A valuation
allowance has been established to reduce the assets to estimated fair market
value. The Company sold the Worcester property in March 1999 for $2.2 million
and recorded a gain of approximately $0.6 million.
NOTE I BORROWING ARRANGEMENTS
In March 1999, the Company entered into a new three-year, multi-bank
revolving credit agreement that provides for borrowings of up to $50 million.
Borrowings under the credit agreement bear interest at variable spreads over
LIBOR. The revolving credit agreement includes covenants that, among other
things, specify a maximum leverage limit, a minimum fixed-charge coverage ratio,
and a minimum level of tangible net worth.
NOTE J LEASES
Certain equipment is leased under capital leases. The assets and
liabilities are initially recorded at the lesser of the present value of the
minimum lease payments or the fair value of the assets. The assets are amortized
over their related lease terms or their estimated useful lives, depending on the
terms of the purchase option at the end of the lease. The Company acquired
equipment under capital leases with an aggregate cost of $0, $756,000, and
$2,202,000 during the years ended January 31, 1999, 1998, and 1997,
respectively.
Rental expenses incurred for operating leases amounted to $1,950,000,
$1,619,000 and $1,463,000 for the years ended January 31, 1999, 1998 and 1997,
respectively. These leases are principally for office and manufacturing
facilities and certain equipment. Many of the leases contain renewal options and
some provide for the payment of a proportionate share of maintenance, insurance
and taxes in addition to the minimum annual rentals.
At January 31, 1999, the future minimum payments under all leases with
terms greater than one year were as follows:
<TABLE>
<CAPTION>
CAPITAL OPERATING
FISCAL YEAR LEASES LEASES
- ----------- ------- ---------
<S> <C> <C>
2000........................................................ $ 721 $1,856
2001........................................................ 1,245
2002........................................................ 883
2003........................................................ 498
2004........................................................ 83
Thereafter.................................................. --
------ ------
Total minimum lease payments................................ $ 721 $4,565
======
Less: interest and prepayment fees.......................... 20
------
Present value of minimum lease payments..................... $ 701
======
</TABLE>
The Company has a non-cancelable sublease agreement to rent its Lexington
office facilities to a third party which expires July 31, 1999. The Company
collected rent payments of $236,000 in fiscal year 1999 and
30
<PAGE> 32
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
has a commitment from the sublessee to receive $182,000 in future rental
payments which will offset the Company's future minimum lease payments of
$172,000.
NOTE K STOCK OPTIONS AND RESTRICTED STOCK
The Company's stock option plans provide for the granting of options to
qualified employees and non-employee directors to purchase the Company's stock
at the fair market value on the date of grant. These options become exercisable
as designated in the grant, not exceeding four years, and may expire up to ten
years from the date of grant.
There were 1,383,118, 2,408,349 and 1,240,933 shares available at January
31, 1999, 1998 and 1997, respectively, for future grants of options. The Company
increased the number of shares available for grant under its plans by 2,750,000
and 1,000,000 shares in fiscal years 1998 and 1999, respectively.
Amortization of deferred compensation for restricted stock grants was
$434,000, $203,000 and $126,000 for fiscal years 1999, 1998 and 1997,
respectively. In November 1997, 50,000 shares of restricted stock were awarded
to the Chief Executive Officer of the Company. The fair market value at the date
of the award was charged to stockholders' equity as unamortized deferred
compensation, which totaled $1,205,000. This amount will be amortized over the
next four years in which the restrictions lapse, beginning from the date of the
award.
The following table summarizes stock option and restricted stock
transactions for the three years ended January 31:
<TABLE>
<CAPTION>
RESTRICTED
WEIGHTED AVERAGE STOCK PLANS
OPTIONS EXERCISE PRICE SHARES
--------- ---------------- -----------
<S> <C> <C> <C>
Outstanding at January 31, 1996.............. 3,630,851 $ 7.09 84,000
Granted.................................... 876,100 11.77 --
Terminated................................. (136,527) 10.84 (8,000)
Exercised/Released......................... (555,543) 3.77 (44,000)
--------- ------ -------
Outstanding at January 31, 1997.............. 3,814,881 $ 8.51 32,000
Granted.................................... 1,668,690 20.65 50,000
Terminated................................. (75,656) 14.70 --
Exercised/Released......................... (733,465) 6.10 (16,000)
--------- ------ -------
Outstanding at January 31, 1998.............. 4,674,450 $13.12 66,000
Benchmarq's net activity for January 1998.... (217,127) 4.14 --
Granted.................................... 2,080,728 13.57 --
Terminated................................. (242,012) 15.93 --
Exercised/Released......................... (605,953) 7.16 (34,000)
--------- ------ -------
Outstanding at January 31, 1999.............. 5,690,086 $14.15 32,000
========= ====== =======
</TABLE>
<TABLE>
<CAPTION>
JANUARY 31
-------------------------------------
1999 1998 1997
--------- ---------- ----------
<S> <C> <C> <C>
Options exercisable............................. 2,663,861 1,915,000 1,816,175
Weighted average exercise price................. $11.91 $8.06 $6.18
</TABLE>
31
<PAGE> 33
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
The fair value of each option granted is estimated on the date of grant
using the Black-Scholes option-pricing model with the following assumptions:
<TABLE>
<CAPTION>
JANUARY 31
-----------------------------------
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
Weighted average fair value of options............ $6.04 $8.37 $4.41
Options granted................................... 2,080,728 1,668,690 876,100
Assumptions:
Risk-free interest rate......................... 5% 6% 7%
Expected volatility............................. 41% 39% 36%
Expected life of grants......................... 5.2 years 4.3 years 4.1 years
Dividend yield.................................. None None None
</TABLE>
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
---------------------------------------- ----------------------
WEIGHTED
WEIGHTED AVERAGE WEIGHTED
NUMBER AVERAGE REMAINING NUMBER AVERAGE
RANGE OF OUTSTANDING EXERCISE CONTRACTUAL EXERCISABLE EXERCISE
EXERCISE PRICES AT 1/31/99 PRICE LIFE (IN YEARS) AT 1/31/99 PRICE
- --------------- ----------- -------- --------------- ----------- --------
<S> <C> <C> <C> <C> <C>
$0.28 -- $ 8.60 960,389 $ 6.15 5.4 960,389 $ 6.15
9.25 -- 12.88 978,473 11.34 7.8 617,545 11.34
13.50 -- 14.25 1,827,050 13.64 9.0 202,600 14.12
14.31 -- 16.03 789,884 15.19 8.0 562,134 15.06
16.13 -- 40.36 1,134,290 23.42 8.7 321,193 23.30
- --------------- --------- ------ --- --------- ------
$0.28 -- $40.36 5,690,086 $14.15 8.0 2,663,861 $11.91
=============== ========= ====== === ========= ======
</TABLE>
Had compensation costs for the Company's stock option plans been determined
on the fair market value at the grant dates for such awards, the Company's net
income and earnings per share would approximate the pro forma amounts below:
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
----------------------------
1999 1998 1997
------ ------- -------
<S> <C> <C> <C>
Net income:
As reported.......................................... $8,646 $36,906 $27,739
Pro forma............................................ $1,374 $34,040 $25,769
Earnings per share:
Basic:
As reported.......................................... $ .27 $ 1.20 $ .93
Pro forma............................................ $ .04 $ 1.11 $ .87
Diluted:
As reported.......................................... $ .27 $ 1.13 $ .89
Pro forma............................................ $ .04 $ 1.04 $ .83
</TABLE>
The effects of applying SFAS No. 123 for the purpose of providing pro forma
disclosures may not be indicative of the effects on reported earnings and
earnings per share for future years, as the pro forma disclosures include the
effects of only those awards granted after January 31, 1995.
32
<PAGE> 34
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
NOTE L COMMITMENTS AND CONTINGENT LIABILITIES
ENVIRONMENTAL MATTERS
The Company is involved in investigation and cleanup under the supervision
of the Maine Department of Environmental Protection of groundwater and soil
contamination at the former Westbrook, Maine wafer fabrication facility of its
former Semiconductor Products Division. The Company has also been notified by
responsible state authorities in California that it is one of a number of
"potentially responsible parties" under relevant state statutes with respect to
a former hazardous waste treatment facility in Escondido, California.
The Company has established environmental reserves that it believes to be
adequate. These reserves are reviewed as events and developments warrant and
adjusted to reflect the likelihood of additional environmental expenditures.
Based upon information currently available to the Company, management believes
that any additional aggregate liability to which the Company may be subjected
from the above-mentioned sites would not be material to future financial
results.
LEGAL SETTLEMENTS
Benchmarq, a wholly owned subsidiary of the Company, was involved in
litigation with Dallas Semiconductor Corporation ("DSC") in which DSC alleged,
among other things, the willful and deliberate infringement by Benchmarq of
certain patents owned by DSC. DSC sought, among other things, an injunction
against further infringement relating to certain products, damages for lost
profits, interest and attorney fees. Benchmarq had sued DSC in the same court,
alleging unfair business practices and seeking damages. The respective lawsuits
were settled on September 14, 1998, and dismissed with prejudice. The settlement
involved a cash payment of $5.5 million by Benchmarq and a limited cross license
agreement between the parties.
On July 31, 1998, the Company, along with twenty-five other companies, was
named as a defendant in a lawsuit filed in U.S. District Court for the District
of Arizona by the Lemelson Medical Education & Research Foundation, Limited
Partnership ("Lemelson"). The suit alleged that certain manufacturing operations
of the Company, as well as certain manufacturing operations of the other
defendants infringed sixteen Lemelson patents. The complaint sought an
injunction against infringement of the patents, damages in an unspecified amount
and attorneys' fees. The Company has entered into a license agreement with the
plaintiff in settlement of the matter and the lawsuit has been dismissed against
the Company.
OTHER LEGAL MATTERS
In June 1997, Linear Technology Corporation ("LTC") filed a complaint in
the U.S. District Court for the Northern District of California (San Jose
Division) alleging that certain products of the Company and products of four
other defendants infringe an LTC patent. The complaint seeks damages and an
injunction against infringement of the patent. The Company has denied any
infringement and has filed a counterclaim seeking that the patent be declared
invalid. The Company believes that the resolution of this action will not have a
materially adverse effect on the Company's financial condition or results of
operations.
From time to time as a normal incidence of the nature of the Company's
business, various claims, charges or litigation are or may be asserted or
commenced against the Company relating to, among other things, contractual
matters, patent disputes, environmental matters and product liability. While
there can be no assurance that the Company will prevail in all these matters,
the Company does not believe that these matters will have a material adverse
effect on the Company's consolidated financial position or results of
operations. However, an adverse resolution of one or more of such matters could
have an adverse effect on the Company's consolidated results of operations in a
quarter in which such matters might be resolved.
33
<PAGE> 35
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
COMMITMENTS
The Company currently obtains substantially all of its semiconductor wafers
for use in its Benchmarq-branded products from Taiwan Semiconductor
Manufacturing Company ("TSMC"). The Company expects to remain dependent on TSMC
for the majority of its wafer capacity related to Benchmarq's products for the
foreseeable future. In May 1996, Benchmarq entered into an Option Agreement with
TSMC ("the Option Agreement"). Pursuant to the Option Agreement, Benchmarq has
committed to purchase, and TSMC has committed to provide, specified quantities
of wafers at prevailing market prices during the calendar years 1997 through
2000. Additionally, Benchmarq has an option to purchase, and TSMC has committed
to provide, certain additional wafers ("the Option Wafers") to be purchased
during the calendar years 1997 through 2000. Benchmarq agreed to pay
approximately $5.9 million as a deposit in advance of production for the Option
Wafers TSMC committed to provide during the term of the Option Agreement, of
which $2.5 million was paid in May 1996. Benchmarq issued a promissory note for
the remaining $3.4 million due March 31, 1997. Effective March 31, 1997,
Benchmarq and TSMC amended the Option Agreement to incorporate the use by
Benchmarq of a proposed new TSMC manufacturing process and to reschedule $1.4
million of the note payable until December 31, 1997. Benchmarq paid $2 million
as scheduled on March 31, 1997 and $1.4 million on December 31, 1997. The
deposit, which is being credited at specified amounts upon purchase of the
Option Wafers, will be forfeited if such wafers are not purchased in a given
year. The deposit was $3,920,000 and $5,040,000 at January 31, 1999 and 1998,
respectively. As of January 31, 1999, none of the deposit had been forfeited.
In fiscal year 1996, the Company entered into a supply agreement with a
manufacturer of silicon wafers. Under this agreement, the Company made a $1
million deposit in advance of production to guarantee certain quantities of
silicon wafers starting in fiscal year 1997. The advance payment will be repaid
to the Company in the form of credits against the price of silicon wafers
purchased from this manufacturer, based upon the monthly allocations in the
contract. The deposit was $328,000 and $564,000 at January 31, 1999 and 1998,
respectively.
The Company has entered into change-of-control agreements with certain key
executives which grant these officers the right to receive up to twice their
annual salaries and bonuses plus continuation of certain benefits following a
change of control in the Company and termination of these officers.
NOTE M INCOME TAXES
Income before income taxes for domestic and foreign operations was as
follows:
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
-----------------------------
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Domestic.............................................. $13,381 $54,675 $38,637
Foreign............................................... 1,832 3,402 2,318
------- ------- -------
Total....................................... $15,213 $58,077 $40,955
======= ======= =======
</TABLE>
34
<PAGE> 36
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
Income tax provision (benefit) is composed of the following:
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
----------------------------
1999 1998 1997
------ ------- -------
<S> <C> <C> <C>
Currently payable:
Federal.............................................. $1,903 $20,517 $11,506
State................................................ 6 2,409 1,713
Foreign.............................................. 606 742 1,234
------ ------- -------
Total current................................ 2,515 23,668 14,453
------ ------- -------
Deferred:
Federal.............................................. 3,745 (2,701) (1,097)
State................................................ 537 (436) (86)
Foreign.............................................. (230) 640 (54)
------ ------- -------
Total deferred............................... 4,052 (2,497) (1,237)
------ ------- -------
Total income tax provision................... $6,567 $21,171 $13,216
====== ======= =======
</TABLE>
The approximate tax effect of each significant type of temporary difference
and carryforward was as follows:
<TABLE>
<CAPTION>
JANUARY 31
------------------
1999 1998
------- -------
<S> <C> <C>
Net deferred tax assets:
Current:
Inventories............................................ $ 1,861 $ 1,660
Deferred compensation and fringe benefit accruals...... 356 2,498
Distributor and other reserves......................... 2,928 4,299
Other.................................................. 87 287
------- -------
5,232 8,744
------- -------
Non-current:
Property, plant and equipment.......................... -- (575)
Other.................................................. -- 550
Deferred compensation.................................. -- 428
------- -------
-- 403
------- -------
Net deferred tax liabilities:
Non-current:
Property, plant and equipment.......................... (4,676) (1,965)
Preferred compensation................................. 364 --
Other.................................................. 1,772 (357)
------- -------
(2,540) (2,322)
------- -------
Total net deferred tax assets..................... $ 2,692 $ 6,825
======= =======
</TABLE>
Based on the Company's history of taxable income and projections of future
earnings, management believes that it is more likely than not that sufficient
taxable income will be generated in the foreseeable future to realize the
deferred tax assets.
35
<PAGE> 37
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
The Company does not provide for income taxes that may be due upon the
remittance of the earnings of its foreign subsidiaries as the Company intends to
indefinitely reinvest such earnings outside of the United States. As of January
31, 1999, such earnings approximated $4,800,000 and the related unrecognized
deferred tax liability approximated $1,600,000.
The differences between the effective tax rates and the applicable U.S.
federal statutory tax rates were as follows:
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
-----------------------
1999 1998 1997
----- ----- -----
<S> <C> <C> <C>
U.S. federal statutory tax rate............................. 35.0% 35.0% 35.0%
State taxes, net of federal tax benefit..................... 3.6 2.2 2.6
Benefit of net operating loss carryforwards................. -- -- (5.6)
Non-deductible merger costs................................. 6.2 -- --
Tax-exempt interest......................................... (3.5) -- --
Other, net.................................................. 1.9 (0.7) 0.3
---- ---- ----
43.2% 36.5% 32.3%
==== ==== ====
</TABLE>
NOTE N INDUSTRY SEGMENT/INTERNATIONAL OPERATIONS
The Company and its subsidiaries operate within a single industry segment,
the manufacture and sale of semiconductors, and have various product categories
within that one segment that share common technologies, markets, and
applications. Its products are sold throughout the world into the EDP/computer,
telecommunications, industrial control and instrumentation, space
communications, and consumer/automotive markets. The Company's products are sold
worldwide by its sales force and through a network of independent sales
representatives and distributors. Sales and marketing outside the United States
are conducted principally through sales subsidiaries and by direct export sales
from the United States.
Data on the Company's net revenues by product category and by geographic
location is presented below:
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31
------------------------------------------------------
1999 1998 1997
---------------- ---------------- ----------------
REVENUES % REVENUES % REVENUES %
-------- ----- -------- ----- -------- -----
<S> <C> <C> <C> <C> <C> <C>
PRODUCT CATEGORIES:
Power management........................... $ 61,059 38.7% $ 78,732 35.5% $ 52,229 30.1%
Data transmission/interface................ 51,509 32.6% 58,851 26.5% 34,875 20.1%
Portable power management.................. 28,866 18.3% 26,569 12.0% 19,158 11.0%
Non-volatile and other..................... 15,641 9.9% 21,203 9.5% 22,119 12.7%
Discontinued products...................... 726 0.5% 36,685 16.5% 45,298 26.1%
-------- ----- -------- ----- -------- -----
Total............................ $157,801 100.0% $222,040 100.0% $173,679 100.0%
======== ===== ======== ===== ======== =====
GEOGRAPHIC INFORMATION:
United States.............................. $ 64,251 40.7% $ 78,892 35.5% $ 53,849 31.0%
Europe..................................... 27,401 17.4% 31,877 14.4% 21,390 12.3%
Singapore.................................. 16,166 10.3% 31,730 14.3% 34,314 19.8%
Taiwan..................................... 18,828 11.9% 22,308 10.0% 21,129 12.2%
Japan...................................... 14,413 9.1% 14,752 6.7% 7,894 4.5%
Rest of world.............................. 16,742 10.6% 42,481 19.1% 35,103 20.2%
-------- ----- -------- ----- -------- -----
$157,801 100.0% $222,040 100.0% $173,679 100.0%
======== ===== ======== ===== ======== =====
</TABLE>
36
<PAGE> 38
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
NOTE O SELECTED QUARTERLY DATA (UNAUDITED)
<TABLE>
<CAPTION>
Pro forma Fiscal Year 1999 Quarters(a)
----------------------------------------------------
FIRST SECOND THIRD FOURTH YEAR
------- ------- ------- ------- --------
<S> <C> <C> <C> <C> <C>
Net revenues............................ $36,928 $38,901 $40,403 $41,569 $157,801
Gross profit............................ 17,250 18,246 19,030 19,883 74,409
Net income.............................. 2,815 4,429 5,037 5,880 18,161
Basic earnings per share(b)............. .09 .14 .16 .18 .57
Diluted earnings per share.............. .09 .14 .16 .18 .56
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEAR 1999 QUARTERS
----------------------------------------------------
FIRST SECOND THIRD FOURTH YEAR
------- ------- ------- ------- --------
<S> <C> <C> <C> <C> <C>
Net revenues............................ $36,928 $38,901 $40,403 $41,569 $157,801
Gross profit............................ 14,654 18,246 19,030 19,883 71,813
Net income (loss)....................... (2,499) 3,461 (2,866) 10,550 8,646
Basic earnings (loss) per share......... (.08) .11 (.09) .33 .27
Diluted earnings (loss) per share(b).... (.08) .11 (.09) .32 .27
Stock prices:
High.................................. 22.50 16.50 17.25 18.88 22.50
Low................................... 14.88 10.31 8.13 11.69 8.13
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEAR 1998 QUARTERS
------------------------------------------------------
FIRST SECOND THIRD FOURTH(C) YEAR
------- ------- ------- --------- --------
<S> <C> <C> <C> <C> <C>
Net revenues............................ $52,552 $59,635 $59,348 $50,505 $222,040
Gross profit............................ 27,384 31,619 31,458 26,446 116,907
Net income.............................. 8,229 9,844 10,498 8,335 36,906
Basic earnings per share................ .27 .32 .34 .27 1.20
Diluted earnings per share(b)........... .26 .30 .31 .25 1.13
Stock prices:
High.................................. 21.13 30.38 42.31 29.81 42.31
Low................................... 15.88 20.94 21.00 15.94 15.88
</TABLE>
- ---------------
a) Pro forma results exclude special charges and Benchmarq merger costs (see
Notes B and C for further information), and one-time royalty income of $7.4
million recorded in the fourth quarter from International Rectifier
Corporation ("IRC") as a result of the settlement of patent infringement
litigation between IRC and two Japanese companies.
b) The sum of the quarterly earnings per share does not equal the annual amount
reported, as per share amounts are calculated independently and are based on
the weighted average shares outstanding for each period.
c) The results of the fourth quarter of fiscal year 1998 include a year-to-date
$2.5 million reduction in incentive compensation due to performance below
Company targets.
The Company did not declare any cash dividends during fiscal years 1999 and
1998. The Company's common stock is listed on the New York Stock Exchange.
NOTE P EMPLOYEE BENEFIT PLANS
The Company contributes to the Unitrode Corporation Profit Sharing/401(k)
Savings Plan (the "Plan") which covers active U.S. employees. The profit sharing
portion covers only active U.S. employees with at least
37
<PAGE> 39
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
three months of service. Under the profit sharing component of the Plan, Company
contributions are made at the discretion of the Board of Directors. The amounts
charged to operations were $0, $2,294,000, and $1,348,000 for the years ended
January 31, 1999, 1998 and 1997, respectively.
Also, the Company matches 50% of employee contributions up to 4% of
compensation under the 401(k) savings component of the Plan. The Plan was
amended in fiscal year 1998 to increase the Company match on employee
contributions from 2% of compensation to 4% of compensation. Company
contributions charged to operations were $488,000, $270,000 and $206,000 for the
years ended January 31, 1999, 1998 and 1997, respectively.
Prior to January 1, 1999, Benchmarq employees were covered under separate
benefit plans. The Benchmarq 401(k) Employee Savings Plan (the "401(k) Plan")
covered all employees who have completed six months of service. Contributions to
the 401(k) Plan were discretionary. The amounts charged to operations were
$120,000, $118,000, and $55,000 for the years ended January 31, 1999, 1998, and
1997, respectively.
Benchmarq employees were also eligible for Benchmarq's Profit Sharing
Program. A full-time regular employee must have been in continuous employment
with Benchmarq from the first to the last day of the fiscal quarter to be
eligible. Profit sharing bonuses were paid quarterly if Benchmarq achieved a
goal of 12% pre-tax return on sales for a given fiscal quarter. Pre-tax return
on sales was defined as pre-tax income before cash bonuses, profit sharing, and
401(k) Plan matching contributions ("PTIB") divided by net revenues. Upon
achievement of the goal, a profit sharing bonus pool was funded with up to 3.5%
of the PTIB for that quarter. Profit sharing bonuses charged to operations were
$0, $294,000, and $246,000 for the years ended January 31, 1999, 1998 and 1997,
respectively.
The Company established a deferred incentive compensation plan for selected
engineers in fiscal year 1995. Plan assets consists of restricted cash and
investments which are held in trust until individual payments are required.
NOTE Q STOCKHOLDERS' EQUITY
On September 29, 1997, the stockholders approved an increase in the
authorized common stock to 60,000,000 shares in order to permit, among other
things, a two-for-one stock split of the Company's common stock. The record date
of the stock split was October 6, 1997 with a distribution date of October 14,
1997. All share and per share information (including share repurchases and
warrant exercises) in the consolidated financial statements have been restated
to reflect the stock split.
On November 21, 1995, the Company issued 495,766 warrants to purchase
Unitrode Common Stock as final settlement of a class action lawsuit. The
warrants were determined to have a value of $1.5 million at the time of issuance
and were combined with additional paid-in-capital on the Company's balance
sheet. Each warrant entitled the holder to purchase one share of Unitrode Common
Stock at a price of $14.23 per share. These warrants expired on August 21, 1997.
Upon expiration, the Company received $6.2 million in proceeds from the exercise
of 438,068 warrants.
On April 30, 1990, the Company's Board of Directors adopted a Shareholder
Rights Plan (the "Plan") and declared a special dividend of one right for each
share of the Company's common stock outstanding at the close of business on May
14, 1990. Each right, when exercisable upon the occurrence of certain events,
entitles the registered holder to purchase from the Company a unit consisting of
one-one hundredth of a share (a "Unit") of Series A Junior Participating
Preferred Stock, par value $.01 per share, at a purchase price of $15.00 per
Unit. Upon the occurrence of certain further events, such as the acquisition of
20% or more of the Company's common stock by a person or group or the
designation of a person or group as an Adverse Person by the Company's Board of
Directors, a holder of a Unit (except holders who are Acquiring Persons or
Adverse Persons, as defined in the Plan) will be entitled to receive common
stock of the Company having a market value equal to twice the exercise price.
Also, if the Company is acquired in a merger in which the Company is not the
surviving corporation, or there is a sale of 50% or more of the Company's assets
or earning
38
<PAGE> 40
NOTES TO FINANCIAL STATEMENTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES -- (CONTINUED)
power, each Unit (except Units held by Acquiring Persons or Adverse Persons) may
receive common stock of the acquiring company having a value equal to twice the
exercise price of the right. In general, the Company may redeem the rights at
$.01 per right at any time until 10 days following public announcement that a
20% position has been acquired in the Company (which period may be extended at
any time while the rights are still redeemable). So long as the rights are not
separately transferable, the Company will issue one right with each new share of
common stock issued. The total number of rights outstanding at January 31, 1999
was 32,018,766.
39
<PAGE> 41
REPORT OF MANAGEMENT
The management of Unitrode Corporation is responsible for the preparation
of the consolidated financial statements in accordance with generally accepted
accounting principles and for the integrity and objectivity of all the financial
data included in this annual report. In preparing the financial statements,
management makes informed judgments and estimates as to the expected effects of
events and transactions currently being reported.
To meet this responsibility, the Company maintains a system of internal
accounting controls to provide reasonable assurance that assets are safeguarded
and that transactions are properly executed and recorded. The system includes
policies and procedures, and reviews by officers of the Company.
The Board of Directors, through its Audit Committee, is responsible for
determining that management fulfills its responsibility with respect to the
Company's financial statements and the system of internal accounting controls.
The Audit Committee is composed solely of outside directors. The Committee
meets periodically and, when appropriate, separately with representatives of the
independent accountants and officers of the Company to monitor the activities of
each.
PricewaterhouseCoopers LLP, the independent accountants, have been selected
by the Board of Directors to examine the Company's financial statements. Their
report appears herein.
<TABLE>
<S> <C>
/s/ JOHN L. KOKULIS /s/ ROBERT J. RICHARDSON
Executive Vice President Chairman and Chief Executive Officer
and Chief Financial Officer
</TABLE>
40
<PAGE> 42
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of Unitrode Corporation:
In our opinion, based upon our audits and the report of other auditors, the
consolidated financial statements listed in the index appearing under Item
14(a)(1) present fairly, in all material respects, the financial position of
Unitrode Corporation and its subsidiaries at January 31, 1999 and 1998, and the
results of their operations and their cash flows for each of the three years in
the period ended January 31, 1999, in conformity with generally accepted
accounting principles. In addition, in our opinion, based upon our audits and
the report of other auditors, the financial statement schedule listed in the
index appearing under Item 14(a)(2) presents fairly, in all material respects,
the information set forth therein when read in conjunction with the related
consolidated financial statements. These financial statements and financial
statement schedule are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements and
financial statement schedule based on our audits. We did not audit the
consolidated financial statements of Benchmarq Microelectronics, Inc., which
statements reflect total assets of $40,848,000 at December 31, 1997 and net
revenues of $44,437,000 and $40,153,000 for the years ended December 31, 1997
and 1996, respectively. Those statements were audited by other auditors whose
report thereon has been furnished to us, and our opinion expressed herein,
insofar as it relates to the amounts included for Benchmarq Microelectronics,
Inc., is based solely on the report of the other auditors. We conducted our
audits of these statements in accordance with generally accepted auditing
standards which require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits and the report of other auditors provide a reasonable basis for the
opinion expressed above.
/s/ PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
March 3, 1999
41
<PAGE> 43
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by Item 10 is hereby incorporated by reference
from the Registrant's definitive proxy statement for the Annual Meeting of
Stockholders to be held June 7, 1999.
Information regarding executive officers is included in Part I hereof.
ITEM 11. EXECUTIVE COMPENSATION
The information required by Item 11 is hereby incorporated by reference
from the Registrant's definitive proxy statement for the Annual Meeting of
Stockholders to be held June 7, 1999.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by Item 12 is hereby incorporated by reference
from the Registrant's definitive proxy statement for the Annual Meeting of
Stockholders to be held June 7, 1999.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
<TABLE>
<CAPTION>
FINANCIAL STATEMENTS AND SCHEDULES PAGE
---------------------------------- -----
<S> <C> <C>
Report of Independent Accountants........................... 41
(a)1. Financial Statements:
Balance Sheets as of January 31, 1999 and 1998.............. 18-19
Statements of Operations for the Years Ended January 31,
1999, 1998 and 1997......................................... 20
Statements of Cash Flows for the Years Ended January 31,
1999, 1998 and 1997......................................... 21
Statements of Stockholders' Equity for the Years Ended
January 31, 1999, 1998 and 1997............................. 22
Notes to Financial Statements............................... 23-39
(a)2. Financial Statement Schedule:
Schedule II -- Valuation and Qualifying Accounts............ 46
</TABLE>
All other schedules are omitted because they are not applicable or the
required information is shown in the financial statements or the notes thereto.
Individual financial statements of the Registrant have been omitted because
consolidated financial statements of the Registrant and all of its subsidiaries
are furnished.
(a)3. List of Exhibits: The exhibits listed below are filed as a part of this
report.
Executive Compensation Plans and Arrangements:
10A Unitrode Corporation 1983 Stock Option Plan, adopted June 6, 1983, as
amended (filed as Exhibit 4F to the Registration Statement on Form S-8
for the Registrant (Registration No. 33-12353) and incorporated herein
by reference).
10B Unitrode Corporation 1984 Restricted Stock and Cash Bonus Plan (filed
as Exhibit 4E to the Registration Statement on Form S-8 for the
Registrant (Registration No. 33-12353) and incorporated herein by
reference).
42
<PAGE> 44
10C Unitrode Corporation Amended and Restated 1986 Non-Employee Director
Option Plan adopted January, 1986 and amended February, 1992 (filed as
Exhibit 4 to the Registration Statement on Form S-8 for the Registrant
(Registration No. 33-54544) and incorporated herein by reference).
10D Forms of Change of Control Employment Agreements (filed as Exhibit 10K
to the Annual Report on Form 10-K filed by the Registrant for the
fiscal year ended January 31, 1991 and incorporated herein by
reference).
10E Unitrode Corporation 1992 Employee Stock Option Plan, adopted February
1992 (filed as Exhibit 4 to the Registration Statement on Form S-8 for
the Registrant (Registration No. 33-54542) and incorporated herein by
reference).
10F Amendments to the Unitrode Corporation 1992 Employee Stock Option
Plan, adopted April, 1995 (filed as Exhibit 10H to the Annual Report
on Form 10-K filed by the Registrant for the fiscal year ended January
31, 1995, and Exhibit 4.5 to the Registration Statement on Form S-8
for the Registrant (Registration No. 333-00107) and incorporated
herein by reference).
10G Amendment to the Unitrode Corporation 1992 Employee Stock Option Plan,
adopted March 17, 1997 (filed as Exhibit 10H to the Annual Report on
Form 10-K filed by the Registrant for the fiscal year ended January
31, 1997 and incorporated herein by reference).
10H Restricted Stock Award Agreement dated as of August 9, 1993 between
Unitrode Corporation and Robert L. Gable (filed as Exhibit 10J to the
Annual Report on Form 10-K filed by the Registrant for the fiscal year
ended January 31, 1997 and incorporated herein by reference).
10I Amendments to the Unitrode 1992 Employee Stock Option Plan, adopted
August 5, 1997, and March 23, 199 (filed as Exhibit 10J to the Annual
Report on Form 10-K filed by the Registrant for the fiscal year ended
January 31, 1998, and incorporated herein by reference.)
10J Restricted Stock Award Agreement dated as of November 11, 1997 between
Unitrode Corporation and Robert J. Richardson (filed as Exhibit 10L to
the Annual Report on Form 10-K by the Registrant for the fiscal year
ended January 31, 1998, and incorporated herein by reference).
10K Benchmarq Microelectronics, Inc. 1989 Stock Option Plan (filed as
Exhibit 4.1 to Form S-8 filed by the Registrant on December 3, 1998
and incorporated herein by reference).
10L Benchmarq Microelectronics, Inc 1995 Flexible Stock Option Plan (filed
as Exhibit 4.2 to Form S-8 filed by the Registrant on December 2, 1998
and incorporated herein by reference).
10M Unitrode Corporation 1999 Equity Incentive Plan (filed as Appendix A
to the Registrant's definitive proxy statement for the Annual Meeting
of Stockholders to be held June 7, 1999, and incorporated herein by
reference.)
10N Unitrode Corporation 1999 Employee Stock Purchase Plan (filed as
Appendix B to the Registrant's definitive proxy statement for the
Annual Meeting of Stockholders to be held June 7, 1999, and
incorporated herein by reference.)
Other Exhibits:
3A Articles of Restatement of the Charter of the Registrant and Articles
of Amendment to the Charter of the Registrant previously filed and
incorporated by reference to Exhibit 3A to the Registrant's Annual
Report on Form 10-K for the fiscal year ended January 31, 1989.
3B Articles Supplementary to the Charter of the Registrant, previously
filed and incorporated by reference to Exhibits 3(A)(1) and (6) to the
Registrant's current Report on Form 8-K filed May 4, 1990.
43
<PAGE> 45
3C Articles of Amendment to the Charter of the Company, previously filed
and incorporated by reference to Exhibit 3B for the Company's Annual
Report on Form 10-K for the fiscal year ended January 31, 1992.
3D Articles of Amendment to the Charter of the Company adopted by the
Board of Directors on August 12, 1997, approved by the stockholders of
the Company on September 29, 1997 and filed with the Maryland
Department of Assessments and taxation on October 6, 1997 (filed as
Exhibit 3D to the Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1998, and incorporated herein by reference).
3E Amended and Restated By-laws of the Company, as amended and restated
March 23, 1998 (filed as Exhibit 3E to the Annual Report on Form 10-K
filed by the Registrant for the fiscal year ended January 31, 1998,
and incorporated herein by reference).
10O Rights Agreement dated as of May 2, 1990 between the Company and The
First National Bank of Boston as Rights Agreement (filed as Exhibit 1
to the Company's Registration Statement on Form 8-A dated May 3, 1990,
and incorporated herein by reference).
10P Agreement between Micro USPD, Inc. and Unitrode Corporation dated May
28, 1992 (filed as Exhibit 10L to the Annual Report on Form 10-K filed
by the Company for the fiscal year ended January 31, 1993, and
incorporated herein by reference).
10Q First Amendment, dated as of April 30, 1993, to the Rights Agreement,
dated as of May 2, 1990, between the Company and The First National
Bank of Boston, as Rights Agreement (filed as Exhibit 1 to Form 8-A/A,
Amendment to Registration Statement on Form 8-A, dated May 26, 1993,
and incorporated herein by reference).
10R Agreement and Plan of Merger, dated as of March 2, 1998 by and among
Unitrode Corporation, Merrimack Corporation, and Benchmarq
Microelectronics, Inc.; including ten annexes thereto (filed as
Exhibit 2.1 to Form 8-K filed by the Registrant on March 4, 1998 and
incorporated herein by reference).
10S Amendment to Merger Agreement, dated as of June 23, 1998 by and among
Unitrode Corporation, Merrimack Corporation and Benchmarq
Microelectronics, Inc. (incorporated by reference to the Registrant's
Current Report on Form 8-K dated June 23, 1998, as amended by the
Registrant's Form 8-K/A dated June 23, 1998.
10T Loan Agreement dated as of March 19, 1999 by and among the Registrant,
Fleet National Bank and other banks party to the Agreement for a
$50,000,000 Revolving Credit Facility.
21 Subsidiaries of the Registrant.
23.1 Consent of Independent Accountants, PricewaterhouseCoopers LLP.
23.2 Report of Independent Auditors, Ernst & Young LLP.
23.3 Consent of Independent Auditors, Ernst & Young LLP.
27 Financial Data Schedules.
(b) Reports on Form 8-K:
On February 16, 1999, the Registrant filed a report on Form 8-K announcing
that on February 15, 1999, John L. Kokulis had replaced Cosmo S. Trapani as
Executive Vice President and Chief Financial Officer of the Registrant. Mr.
Trapani had resigned from that position on January 31, 1999.
On March 16, 1999, the Registrant filed a report on Form 8-K announcing
that, effective March 15, 1999, the Registrant's Board of Directors had
authorized the repurchase of up to one million shares of the Registrant's common
stock from time-to-time in the open market.
44
<PAGE> 46
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
UNITRODE CORPORATION
(Registrant)
<TABLE>
<S> <C>
By: /s/ ROBERT J. RICHARDSON
April 22, 1999 --------------------------------------------------
- ----------------------------- Robert J. Richardson, Chairman, Chief Executive
Date Officer and Director (Principal Executive Officer)
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C>
April 22, 1999 /s/ DERRELL C. COKER
----------------------------- ---------------------------------------------------
Date Derrell C. Coker, Director
April 22, 1999 /s/ WILLIAM W. R. ELDER
----------------------------- ---------------------------------------------------
Date William W.R. Elder, Director
April 22, 1999 /s/ DIETRICH R. ERDMANN
----------------------------- ---------------------------------------------------
Date Dietrich R. Erdmann, Director
April 22, 1999 /s/ ROBERT L. GABLE
----------------------------- ---------------------------------------------------
Date Robert L. Gable, Director
April 22, 1999 /s/ JOHN L. KOKULIS
----------------------------- ---------------------------------------------------
Date John L. Kokulis, Executive Vice President and Chief
Financial Officer (Principal Financial and
Accounting Officer)
April 22, 1999 /s/ LOUIS E. LATAIF
----------------------------- ---------------------------------------------------
Date Louis E. Lataif, Director
April 22, 1999 /s/ ROBERT J. RICHARDSON
----------------------------- ---------------------------------------------------
Date Robert J. Richardson, Chairman, Chief Executive
Officer and Director (Principal Executive Officer)
April 22, 1999 /s/ ALAN R. SCHUELE
----------------------------- ---------------------------------------------------
Date Alan R. Schuele, President, and Director (Principal
Executive Officer)
April 22, 1999 /s/ JAMES T. VANDERSLICE
----------------------------- ---------------------------------------------------
Date James T. Vanderslice, Director
</TABLE>
45
<PAGE> 47
SCHEDULE II VALUATION AND QUALIFYING ACCOUNTS
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES
FOR THE YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONS
BALANCE AT CHARGED TO NET BALANCE
BEGINNING COSTS AND ADDITIONS AT END
DESCRIPTION OF PERIOD EXPENSES (DEDUCTIONS) OF PERIOD
- ----------- ---------- ---------- ------------ ---------
<S> <C> <C> <C> <C>
ALLOWANCE FOR DOUBTFUL ACCOUNTS
1999............................................ $ 489 $ (74) $ 92 $ 507
====== ====== ======= ======
1998............................................ $ 433 $ 217 $ (161) $ 489
====== ====== ======= ======
1997............................................ $ 463 $ 2 $ (32) $ 433
====== ====== ======= ======
ALLOWANCE FOR CREDITS
1999............................................ $1,531 $ 168 $ -- $1,699
====== ====== ======= ======
1998............................................ $ 529 $1,002 $ -- $1,531
====== ====== ======= ======
1997............................................ $ 138 $ 391 $ -- $ 529
====== ====== ======= ======
INVENTORY RESERVES
1999............................................ $3,560 $4,632 $(4,087) $4,105
====== ====== ======= ======
1998............................................ $1,448 $2,662 $ (550) $3,560
====== ====== ======= ======
1997............................................ $1,088 $1,583 $(1,223) $1,448
====== ====== ======= ======
OTHER ASSETS VALUATION ALLOWANCE
1999............................................ $1,315 $3,264 $ (105) $4,474
====== ====== ======= ======
1998............................................ $1,148 $1,065 $ (898) $1,315
====== ====== ======= ======
1997............................................ $ 350 $ 798 $ -- $1,148
====== ====== ======= ======
</TABLE>
46
<PAGE> 1
EXHIBIT 10T
LOAN AGREEMENT
dated as of March 19, 1999
by and among
UNITRODE CORPORATION, as Borrower,
FLEET NATIONAL BANK
AND THE OTHER BANKS PARTY HERETO, as Banks,
and
FLEET NATIONAL BANK, as Agent
$50,000,000 REVOLVING CREDIT FACILITY
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I CERTAIN DEFINITIONS AND ACCOUNTING TERMS
<S> <C>
Section 1.01. Defined Terms......................................................... 1
Section 1.02. Use of Defined Terms.................................................. 11
Section 1.03. Accounting Terms...................................................... 11
ARTICLE II AMOUNTS AND TERMS OF THE LOANS
Section 2.01. Revolving Loans....................................................... 11
Section 2.02. Requests for Floating Rate Loans...................................... 12
Section 2.03. Repayment of Principal of Revolving Loans............................. 12
Section 2.04. Interest Payments on Revolving Loans.................................. 13
Section 2.05. LIBOR Loans........................................................... 13
Section 2.06. Commitment and Other Fees............................................. 14
Section 2.07. Rate Determination Protection......................................... 15
Section 2.08. Prepayment of LIBOR Loans............................................. 15
Section 2.09. Increased Costs; Capital Adequacy..................................... 16
Section 2.10. Illegality or Impossibility........................................... 18
Section 2.11. Letters of Credit..................................................... 18
Section 2.12. Rate Adjustment....................................................... 21
ARTICLE III LOAN PROCEEDS AND PAYMENTS
Section 3.01. Funding by Banks; Availability........................................ 22
Section 3.02. Charges Against Accounts.............................................. 23
Section 3.03. Use of Loan Proceeds.................................................. 23
Section 3.04. Payments.............................................................. 23
Section 3.05. Payments on Non-Business Days......................................... 24
Section 3.06. Net Payments.......................................................... 24
ARTICLE IV CONDITIONS OF LENDING
Section 4.01. Conditions Precedent to Initial Loan.................................. 24
Section 4.02. Conditions Precedent to All Loans..................................... 26
ARTICLE V REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties........................................ 26
ARTICLE VI COVENANTS OF THE BORROWER
Section 6.01. Affirmative Covenants Other Than
Reporting Requirements.............................................. 32
Section 6.02. Negative Covenants.................................................... 37
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Section 6.03. Reporting Requirements................................................ 43
ARTICLE VII DEFAULT AND REMEDIES
Section 7.01. Events of Default..................................................... 46
Section 7.02. Rights and Remedies Upon Default...................................... 47
Section 7.03. Set-Off............................................................... 48
Section 7.04. Right to Cure......................................................... 49
Section 7.05. Remedies of Banks..................................................... 49
Section 7.06. Temporary Loans Payable on Demand..................................... 50
Section 7.07. Certain Payments with Respect to Letters of Credit.................... 50
ARTICLE VIII CONCERNING THE AGENT
Section 8.01. Designation of Agent.................................................. 50
Section 8.02. Duties with Respect to Revolving Notes and Loans...................... 51
Section 8.03. Duties with Respect to Administration................................. 51
Section 8.04. Duties upon Default................................................... 51
Section 8.05. Other Obligations..................................................... 52
Section 8.06. Standard of Care...................................................... 52
Section 8.07. Expenses.............................................................. 54
Section 8.08. Resignation of Agent; Appointment of Successor Agent.................. 55
Section 8.09. Borrower's Acknowledgment............................................. 55
Section 8.10. No Other Beneficiaries................................................ 55
ARTICLE IX MISCELLANEOUS
Section 9.01. No Waiver; Cumulative Remedies........................................... 55
Section 9.02. Amendment, Waivers and Consents.......................................... 56
Section 9.03. Addresses for Notices, etc............................................... 56
Section 9.04. Costs, Expenses and Taxes................................................ 57
Section 9.05. Withholding Tax.......................................................... 57
Section 9.06. Reduction and Termination................................................ 58
Section 9.07. Representations and Warranties........................................... 58
Section 9.08. Binding Effect; Assignment............................................... 59
Section 9.09. Indemnification.......................................................... 61
Section 9.10. Reproduction of Agreement................................................ 62
Section 9.11. Consent to Jurisdiction.................................................. 62
Section 9.12. Governing Law............................................................ 62
Section 9.13. Severability............................................................. 62
Section 9.14. Headings................................................................. 63
Section 9.15. Replacement Notes........................................................ 63
Section 9.16. Usury.................................................................... 63
Section 9.17. WAIVER OF JURY TRIAL..................................................... 63
</TABLE>
-ii-
<PAGE> 4
EXHIBIT LIST
Schedule I - Revolving Loan Percentages; Commitments
Schedule II - Notice Addresses of Banks
Exhibit A - Form of Revolving Note
Exhibit B - Subsidiaries; partnerships; joint ventures; principal
places of business; jurisdictions where qualified
Exhibit C - 5% Stockholders
Exhibit D - Litigation; administrative proceedings
Exhibit E - Adverse claims in intellectual property matters
Exhibit F - Environmental matters
Exhibit G - Existing Indebtedness and liens
Exhibit H - Existing guaranties
Exhibit I - Items intended for sale or disposal
Exhibit J - Borrower's Investment Policy
Exhibit K - Existing Investments; Investments in Subsidiaries
Exhibit L - Officers and Directors
Exhibit M - Form of Assignment and Acceptance
-iii-
<PAGE> 5
LOAN AGREEMENT dated as of March 19, 1999 by and among Unitrode
Corporation, a Maryland corporation (the "Borrower"), Fleet National Bank
("Fleet") and the other Banks whose names are subscribed hereto (Fleet, each of
said Banks whose names are subscribed hereto and any assignee of any of the
Loans made hereunder being hereinafter referred to collectively as the "Banks"
and individually as a "Bank"), and Fleet National Bank, as Agent for the Banks
hereunder (the "Agent").
The Borrower, the Banks and the Agent, each party in consideration that
the others join herein, hereby respectively act and agree as follows:
ARTICLE I
CERTAIN DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms. As used in this Agreement or in any
certificate or opinion delivered in connection with this Agreement, the
following terms shall have the meanings set out respectively after each:
"Acquisition" - Any purchase or other acquisition made by the Borrower
or any Subsidiary of the Borrower of all or any substantial portion of the
business or assets of any other corporation or other entity or any line of
business of another corporation or entity, all whether through the acquisition
of stock or assets or otherwise.
"Affiliate" - As defined in Subsection 6.02(n).
"Aggregate Revolving Bank Liabilities" - At any time as of which same
is to be determined, the total of: (i) all Letter of Credit Liabilities then
outstanding, (ii) the then Aggregate Revolving Loans, and (iii) the aggregate
principal amount of all Temporary Loans then outstanding.
"Aggregate Revolving Loans" - The aggregate principal amount of all
Revolving Loans outstanding at any one time under this Agreement.
"Agreement" (as in "this Agreement") - This Loan Agreement, as the same
may be amended from time to time.
"Applicable Commitment Fee Rate" - 0.35% per annum at any time when the
Borrower is in Level Three Compliance; 0.3% per annum at any time when the
Borrower is in Level Two Compliance; and 0.25% per annum at any time when the
Borrower is in Level One Compliance.
"Assignment and Acceptance" - As defined in Section 9.08.
"Bank Certificate" - A certificate signed by an officer of a Bank
setting forth any additional amount required to be paid by the Borrower to such
Bank pursuant to Section 2.05, Section 2.08 or Section 2.09 of this Agreement,
which certificate shall be submitted by such Bank to the Borrower in connection
with each demand made at any time by such Bank upon the
<PAGE> 6
Borrower with respect to such additional amounts, and each such certificate
shall, save for manifest error, constitute conclusive evidence of the additional
amount required to be paid by the Borrower to such Bank upon each demand. A
claim by any Bank for all or any part of any additional amount required to be
paid by the Borrower may be made before and/or after the end of the Interest
Period to which such claim relates or during which such claim has arisen and
before and/or after any payment hereunder to which such claim relates. Each Bank
Certificate shall set forth in reasonable detail the basis for and calculation
of the claim to which it relates.
"Base Rate" - For any day, the higher of: (a) 0.50% per annum above the
then applicable Federal Funds Rate; and (b) the Prime Rate of Fleet in effect
for such day.
"Benchmarq" - As defined in Subsection 4.01(l).
"Business Day" - Any day which is not a Saturday, nor a Sunday, nor a
public holiday under the laws of the United States of America or The
Commonwealth of Massachusetts applicable to a national banking association or
other day on which banks in Boston, Massachusetts are authorized or directed to
close; provided, however, that if the applicable provision relates to a LIBOR
Loan, the term "Business Day" shall not include any day on which dealings are
not carried on in the London interbank market or on which banks are not open for
business in London.
"Capital Expenditures" - All acquisitions of machinery, equipment,
land, leaseholds, buildings, leasehold improvements and all other expenditures
for purposes which are considered to be fixed assets under generally accepted
accounting principles consistently applied. When a fixed asset is acquired by a
lease which is required to be capitalized pursuant to generally accepted
accounting principles, the amount required to be capitalized pursuant thereto
shall be considered to be a Capital Expenditure in the year such asset is first
leased.
"Capital Leases" - All leases which have been or should be capitalized
in accordance with generally accepted accounting principles as in effect from
time to time, including Statement No. 13 of the Financial Accounting Standards
Board and any successor thereto.
"Cash, Cash-Equivalents and Short-Term Investments" - Such current
assets of the Borrower as consist of (i) cash, (ii) demand deposits in United
States commercial banks, (iii) interests in readily-marketable money market
mutual funds, (iv) commercial paper rated not less than A-1/P-1, (v) other
short-term debt obligations permitted by the Borrower's existing Investment
Policy, or (vi) any mutual funds whose assets are invested primarily in
investments of the types described in the foregoing clauses (i) - (v).
"Change of Control" - The occurrence of any circumstance in which any
"person" (as such term is used in subsections 13(d) and 14(d) of the Exchange
Act) or group of persons on or after the date of this Agreement is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Borrower representing 35% or more
of the combined voting power of the Borrower's then-outstanding voting
securities.
-2-
<PAGE> 7
"Charter" - The Certificate of Incorporation or other organizational
document of a corporation referred to, in each case as amended to date.
"Commitment" - As to each Bank, its agreement to make Revolving Loans
to the Borrower pursuant to this Agreement.
"Compliance Level" - Level One Compliance, Level Two Compliance and
Level Three Compliance, as applicable, all as determined pursuant to Section
2.12.
"Consolidated" - When applied to the Borrower, means the accounts of
the Borrower and its Subsidiaries consolidated in accordance with generally
accepted accounting principles.
"Consolidated Capital Base" - As determined at any time, the sum of (i)
the Consolidated Tangible Net Worth of the Borrower and Subsidiaries then
existing plus (ii) the principal amount of Subordinated Debt of the Borrower
then outstanding (nothing contained herein being deemed to authorize the
incurrence of any additional Subordinated Debt).
"Consolidated Cash Flow" - For any period, the Consolidated EBITDA of
the Borrower and Subsidiaries for such period, minus each of the following: (i)
all federal and state taxes actually paid by the Borrower and/or any of its
Subsidiaries during such period, and (ii) all Capital Expenditures incurred by
the Borrower and/or any of its Subsidiaries during such period, all on a
consolidated basis.
"Consolidated EBITDA" - As to any Person, for any period, the
Consolidated Net Income (or Consolidated Net Loss, expressed as a negative
number) of such Person and its Subsidiaries for such period, plus, without
duplication of any item, (i) all federal and state income taxes (but not taxes
in the nature of an ad valorem property tax or a sales or excise tax) paid or
accrued with respect to such period and actually deducted on the consolidated
books of such Person for the purposes of computation of Consolidated Net Income
(or Consolidated Net Loss) for the period involved, (ii) the Consolidated
Interest Expense paid or accrued by such Person and its Subsidiaries for such
period and actually deducted on the consolidated books of such Person for the
purposes of computation of Consolidated Net Income (or Consolidated Net Loss)
for the period involved, (iii) the amount of the provision for depreciation
and/or amortization expense actually deducted on the consolidated books of such
Person for the purposes of computation of Consolidated Net Income (or
Consolidated Net Loss) for the period involved, and (iv) all other non-cash
charges recognized by such Person and its Subsidiaries for the period involved
and actually deducted on the consolidated books of such Person for the purposes
of computation of Consolidated Net Income (or Consolidated Net Loss) for the
period involved, but minus any non-cash credits recognized by such Person and
its Subsidiaries for the period involved and included as income on the
consolidated books of such Person for the purposes of computation of
Consolidated Net Income (or Consolidated Net Loss) for the period involved.
"Consolidated Funded Indebtedness" - The aggregate (without
duplication) of (i) all Indebtedness for Money Borrowed of the Borrower and/or
any of its Subsidiaries, including the principal components of all Capital
Leases, (ii) the maximum drawing amount of all letters of credit (including,
without limitation, letters of
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<PAGE> 8
credit issued hereunder) issued by Fleet or by any other issuer for the account
of the Borrower and/or any of its Subsidiaries, and (iii) any Indebtedness of
others guaranteed by the Borrower and/or any of its Subsidiaries, all as
determined in accordance with generally accepted accounting principles.
"Consolidated Interest Coverage Ratio" - For any fiscal period, the
ratio of (x) the Consolidated Cash Flow of the Borrower and its Subsidiaries for
such period to (y) Consolidated Interest Expense of the Borrower and its
Subsidiaries paid or accrued for such fiscal period.
"Consolidated Interest Expense" - With respect to any period of
computation thereof, the gross interest expense of the Borrower and its
Subsidiaries, including, without limitation, (i) the amortization of debt
discounts, (ii) all fees (including, without limitation, fees payable in respect
of any swap agreement or other hedging agreement and any letters of credit)
payable in connection with the incurrence of Indebtedness to the extent included
in interest expense, and (iii) the portion of any liabilities incurred in
connection with Capital Leases allocable to interest expense, all determined on
a consolidated basis in accordance with generally accepted accounting principles
applied on a consistent basis.
"Consolidated Leverage Ratio" - As determined at any date, the ratio of
(x) Consolidated Net Debt of the Borrower and its Subsidiaries as at that date
to (y) Consolidated EBITDA of the Borrower and its Subsidiaries for the 12-month
period ending on such date.
"Consolidated Net Debt" - As determined at any date, the result of (x)
Consolidated Funded Indebtedness outstanding as of such date minus (y) the
Borrower's Cash, Cash-Equivalents and Short-Term Investments at such date to the
extent that same exceeds $30,000,000.
"Consolidated Net Income" - As to any Person, for any period of
computation thereof, the book net income (or book net loss, as the case may be)
of such Person for such period, after all taxes paid or accrued and all expenses
and other charges, all determined on a consolidated basis in accordance with
generally accepted accounting principles applied on a consistent basis. If the
result described in the immediately preceding sentence is less than zero, the
amount by which it is less than zero will be known as the "Consolidated Net
Loss".
"Consolidated Tangible Net Worth" - As to any Person, an amount equal
to the total assets of such Person and its Subsidiaries, taken on a consolidated
basis (excluding (i) the total intangible assets of such Person and/or such
Subsidiaries, (ii) any minority interests in Subsidiaries and (iii) any assets
representing amounts due from any officer or employee of such Person or from any
such Subsidiary) minus the total consolidated liabilities of such Person and its
Subsidiaries, taken on a consolidated basis. Total intangible assets shall be
deemed to include, but shall not be limited to, the excess of cost over book
value of acquired businesses accounted for by the purchase method, formulae,
trademarks, trade names, patents, patent rights and deferred expenses
(including, but not limited to, unamortized debt discount and expense,
organizational expense, capitalized software costs and experimental and
developmental expenses).
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"Default" - Any event or circumstance which, with the passage of time
or giving of notice or both, could become an Event of Default.
"Default Rate" - With respect to any Loan, a rate of interest per annum
equal to the sum of (i) 2% per annum plus (ii) that per annum interest rate
which would then be applicable to such Loan if no Event of Default were then in
effect.
"Determination Date" - As defined in Subsection 6.01(q).
"Environmental Law" - Any federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree, permit or license regulating,
relating to, or imposing liability or standards of conduct concerning, any
environmental matters or conditions, environmental protection or conservation,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; the Resource Conservation
and Recovery Act, as amended; the Toxic Substance Control Act, as amended; the
Clean Air Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder.
"ERISA" - As defined in Subsection 5.01(l).
"ERISA Affiliate" - Any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal
Revenue Code for purposes of provisions relating to Section 412 of the Internal
Revenue Code).
"Eurocurrency Liabilities" - Has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor), as in effect from time to time, or in any successor regulation
relating to the liabilities described in said Regulation D.
"Event of Default" - Any of the events specified in Section 7.01
hereof.
"Exchange Act" - The Securities Exchange Act of 1934, as amended, and
the applicable rules and regulations from time to time promulgated thereunder.
"Federal Funds Rate" - For any day, the rate set forth in the
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York with respect to the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published with respect to any such preceding
Business Day, the rate for such day will be the arithmetic mean as determined by
the Agent of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected by the
Agent.
"Floating Rate Loan" - Any Revolving Loan which bears interest at a
rate calculated with reference to the Base Rate.
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"Hazardous Material" - Any pollutant, contaminant or hazardous, toxic
or dangerous waste, substance or material (including, without limitation,
petroleum products, asbestos-containing material and lead), the generation,
handling, storage, disposal, treatment, release, discharge or emission of which
is subject to any Environmental Law.
"Impositions" - All present and future taxes, levies, duties,
impositions, deductions, charges and withholdings applicable to any Bank with
respect to any LIBOR Loan, excluding, however, any taxes imposed directly on
such Bank's income and any franchise taxes imposed on it by the jurisdiction
under the laws of which such Bank is organized or any political subdivision
thereof.
"Incremental Rates" - Collectively, the LIBOR Rate Increment and the
Applicable Commitment Fee Rate.
"Indebtedness" - The total of all obligations of a Person, whether
current or long-term, senior or subordinated, which in accordance with generally
accepted accounting principles would be included as liabilities upon such
Person's balance sheet at the date as of which Indebtedness is to be determined;
and shall also include such Person's liability in respect of guaranties,
endorsements (other than for collection in the ordinary course of business) or
other arrangements whereby responsibility is assumed for the obligations of
others, whether by agreement to purchase or otherwise acquire the obligations of
others, including any agreement, contingent or otherwise, to furnish funds
through the purchase of goods, supplies or services for the purpose of payment
of the obligations of others, as well as all obligations (whether matured or
contingent) in respect of letters of credit, swap agreements or hedging
agreements.
"Indebtedness for Money Borrowed" - All indebtedness in respect of
money borrowed, including, without limitation, all Capital Leases and the
deferred purchase price of any property or asset, as well as all Indebtedness
evidenced by a promissory note, bond or similar written obligation for the
payment of money (including, but not limited to, conditional sales or similar
title retention agreements and the unreimbursed amount of any drawings on any
letters of credit, whether or not issued hereunder).
"Interest Payment Date(s)" - As to any LIBOR Loan, the last day of the
Interest Period applicable to such LIBOR Loan; provided that if such Interest
Period is more than three months, then there shall be multiple Interest Payment
Dates for such Interest Period -- the first of which shall be three months from
the commencement of such Interest Period and the subsequent Interest Payment
Dates to occur at three-month intervals thereafter, with the last Interest
Payment Date to occur on the last day of such Interest Period.
"Interest Period" - As to each LIBOR Loan, the period commencing with
the date of the making of such LIBOR Loan and ending one, two, three, six or
twelve months thereafter, as the Borrower may select; provided that (A) any such
Interest Period which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
occurs in a new calendar month, in which case such Interest Period shall end on
the immediately preceding Business Day; (B) any such Interest Period which
begins on a day for which there is no numerically corresponding day in the
calendar month during which such
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<PAGE> 11
Interest Period is to end shall end on the last Business Day of such calendar
month; and (C) no Interest Period may be selected as to any Revolving Loan which
would end after the Revolving Expiration Date.
"IRS" - The Internal Revenue Service or any governmental authority
succeeding to any of its principal functions.
"Letter of Credit Liabilities" - As determined at any time, the total
of (i) the aggregate then undrawn stated amounts of all letters of credit
hereafter issued by Fleet pursuant to Section 2.11, plus (ii) all amounts then
outstanding representing unreimbursed draws on letters of credit issued as
aforesaid.
"Level One Compliance", "Level Two Compliance" and "Level Three
Compliance" are each defined in Section 2.12 below.
"LIBOR" - With respect to each Interest Period for a LIBOR Loan, that
rate per annum (rounded upward, if necessary, to the nearest 1/32nd of one
percent) which represents the offered rate for deposits in U.S. Dollars, for a
period of time comparable to such Interest Period, which appears on the Telerate
page 3750 as of 11:00 a.m. (London time) on that day that is two (2) London
Banking Days preceding the first day of such Interest Period; provided, however,
that if the rate described above does not appear on the Telerate System on any
applicable interest determination date, LIBOR for such Interest Period shall be
the rate (rounded upwards as described above, if necessary) for deposits in
dollars for a period substantially equal to such Interest Period shown on the
Reuters Page "LIBO" (or such other page as may replace the LIBO Page on that
service for the purpose of displaying such rates), as of 11:00 a.m. (London
Time), on that day that is two (2) London Banking Days prior to the beginning of
such Interest Period. "London Banking Day" shall mean any date on which
commercial banks are open for business in London. If both the Telerate and
Reuters systems are unavailable, then LIBOR for any Interest Period will be
determined on the basis of the offered rates for deposits in U.S. Dollars for a
period of time comparable to such Interest Period which are offered by four
major banks in the London interbank market at approximately 11:00 a.m., London
time, on that day that is two (2) London Banking Days preceding the first day of
such Interest Period, as selected by the Agent. The principal London office of
each of four major London banks will be requested to provide a quotation of its
U.S. Dollar deposit offered rate. If at least two such quotations are provided,
the rate for that date will be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in U.S. Dollars to leading
European banks for a period of time comparable to such Interest Period offered
by major banks in New York City at approximately 11:00 a.m., New York City time,
on that day that is two London Banking Days preceding the first day of such
Interest Period. In the event that the Agent is unable to obtain any such
quotation as provided above, it will be deemed that LIBOR for the proposed
Interest Period cannot be determined. The Agent shall give prompt notice to the
Borrower of LIBOR as determined for each LIBOR Loan and such notice shall be
deemed presumptively correct, absent manifest error.
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"LIBOR Interest Rate" - For any Interest Period, an interest rate per
annum, expressed as a percentage, determined by the Agent pursuant to the
following formula:
* LIR = LIBOR + LRI
---------
[1.00 - RR]
Where LIR = LIBOR Interest Rate
LIBOR = See definition of LIBOR
RR = Reserve Rate
LRI = The then applicable LIBOR Rate Increment
*LIR to be rounded upwards to the next higher 1/32nd of 1%.
The LIBOR Interest Rate will be adjusted during any Interest Period to reflect
any effective change in the applicable LIBOR Rate Increment during such Interest
Period and/or any change in the Reserve Rate during such Interest Period.
"LIBOR Loan" - Any Revolving Loan which bears interest at a LIBOR
Interest Rate.
"LIBOR Rate Increment" - The LIBOR Rate Increment is as follows: 1.5
when the Borrower is in Level Three Compliance; 1.25 when the Borrower is in
Level Two Compliance; and 1.0 when the Borrower is in Level One Compliance.
"Loan" - Any obligation (matured or unmatured) of the Borrower to the
Agent or to any Bank (including Fleet as a letter of credit issuer) now or
hereafter arising under or in respect of this Agreement (including, without
limitation, any Revolving Loan, any Temporary Loan and any Letter of Credit
Liabilities).
"Loan Documents" - This Agreement, the Revolving Notes, any Subsidiary
Guaranty or Guaranties and all other instruments, agreements and documents now
or hereafter entered into relating to any Loan and/or any letter of credit
issued hereunder.
"London" - The City of London in England.
"Material Subsidiary" - Each direct or indirect Subsidiary of the
Borrower existing on the date hereof or hereafter acquired or created which (i)
has a tangible net worth equal to or greater than 5% of Consolidated Tangible
Net Worth of the Borrower and Subsidiaries (calculated as of the most recent
fiscal period with respect to which the Agent shall have received financial
statements) of the Borrower or (ii) has annual book net income (determined in
accordance with generally accepted accounting principles) equal to or greater
than 5% of the annual Consolidated Net Income (calculated for the most recent
fiscal year of the Borrower for which the Agent has received financial
statements) of the Borrower and Subsidiaries; provided; however, that
notwithstanding the foregoing, the term "Material Subsidiaries" shall in any
event mean Subsidiaries of the Borrower that together with the Borrower itself
have combined tangible net worths equal to not less than 85% of Consolidated
Tangible Net Worth (calculated as described above) of the Borrower and
Subsidiaries and combined annual Net Income of not less than 85%
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of annual Consolidated Net Income (calculated as described above) of the
Borrower and Subsidiaries; provided further that if more than one combination of
Subsidiaries satisfies such threshold, then Subsidiaries so determined by the
Borrower to be "Material Subsidiaries" shall be specified by the Borrower.
"Multi-employer Plan" - Any employee pension benefit plan covered by
Title IV of ERISA and in respect of which the Borrower or any ERISA Affiliate of
the Borrower is an "employer" as described in Section 4001(b) of ERISA, which is
also a multi-employer plan as defined in Section 4001(a)(3) of ERISA.
"Participant Bank" - As defined in Section 2.11.
"PBGC" - As defined in Subsection 5.01(l).
"Permitted Acquisition" - Any Acquisition which meets all of the
following criteria: (1) at the time of such Acquisition, and after giving effect
thereto, there is no Default or Event of Default under this Agreement; (2) after
giving effect to such Acquisition, the Borrower is in pro forma compliance with
each of Subsection 6.01(q) (Consolidated Leverage Ratio), Subsection 6.01(r)
(Consolidated Interest Coverage Ratio) and Subsection 6.01(s) (Consolidated
Capital Base), with compliance with each of said Subsections being determined on
a pro forma basis as at the date of such Acquisition, even if not a fiscal
quarter-end; and, prior to any such Acquisition, the Borrower will furnish to
the Agent and the Banks pro forma projections, on a quarterly basis, covering at
least the then current fiscal year and the following fiscal year (and up to
three full fiscal years if requested by the Agent or any Bank), which shall
indicate that, after giving effect to such Acquisition, there would not (during
any period to which such projections relate) occur any violation of any of
Subsections 6.01(q), 6.01(r) or 6.01(s); (3) such Acquisition relates to a
Person primarily engaged in (or assets primarily used in) the business of design
and manufacture of analog/linear and mixed signal integrated circuits, modules
and non-volatile products; (4) such Acquisition is approved by the Board of
Directors of the company, the stock or assets of which are being acquired; (5)
the prior written approval of the Agent and the Required Banks is obtained for
any one Acquisition or series of related Acquisitions for which the total
consideration (in cash, stock or otherwise) paid or to be paid (including any
earn-out payment) may exceed $40,000,000; and (6) the prior written approval of
the Agent and the Required Banks is obtained for each Acquisition if the total
consideration paid or to be paid for such Acquisition (in cash, stock or
otherwise) (including any earn-out payment), together with such total
consideration for all prior Acquisitions closed during the term of this
Agreement, would exceed $70,000,000 in the aggregate.
"Person" - An individual, corporation, partnership, limited liability
company, joint venture, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"Prime Rate" - That variable rate of interest per annum designated by
the Agent, from time to time, as being its prime rate, it being understood that
such rate is merely a reference rate and does not necessarily represent the
lowest or best rate being charged to any customer.
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<PAGE> 14
"Principal Office" - A principal place of business as from time to time
designated by the Agent and each Bank, now located as follows: (i) as to the
Agent and Fleet, at One Federal Street, Boston, MA 02110, and (ii) as to each of
the Banks, as shown on Schedule II attached hereto.
"Required Banks" - (A) Banks holding at least 66-2/3% of the aggregate
principal amount of all Loans outstanding, or (B) if no Loans are outstanding,
Banks with Commitments aggregating at least 66-2/3% of the aggregate amount of
Commitments outstanding.
"Reserve Rate" - The aggregate rate, expressed as a decimal, at which
the Agent would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulation relating to such reserve requirements) against Eurocurrency
Liabilities, as well as any other reserve which would be required of the Agent
with respect to the LIBOR Loans if such LIBOR Loans were made by the Agent. The
LIBOR Interest Rate shall be adjusted automatically on and as of the effective
date of any change in the Reserve Rate.
"Revolving Commitment Amount" - Subject to reduction as provided in
Section 9.06, Fifty Million ($50,000,000) Dollars.
"Revolving Expiration Date" - March 19, 2002.
"Revolving Loan Percentage" - As to each of the Banks, the respective
percentages shown on Schedule I to this Agreement.
"Revolving Loans" - Loans made by any Bank to the Borrower pursuant to
Section 2.01.
"Revolving Notes" - The promissory notes of the Borrower, payable to
each of the Banks, in the form of the Exhibit A attached hereto.
"Subordinated Debt" - All Indebtedness of the Borrower which is fully
subordinated to the Loans pursuant to instruments satisfactory in form and
substance to the Required Banks.
"Subsidiary" - As to any Person, any corporation or other entity as to
which such Person and/or any of its Subsidiaries, directly or indirectly, owns,
or has the right to control or direct the voting of, more than fifty (50%)
percent of the outstanding capital stock or other ownership interest having
general voting power (under ordinary circumstances).
"Subsidiary Guaranty" - As defined in Subsection 6.01(p).
"Temporary Loan" - As defined in Section 3.01.
Section 1.02. Use of Defined Terms. Any defined term used in the plural
preceded by the definite article shall be taken to encompass all members of the
relevant class. Any defined term used in the singular preceded by "any" shall be
taken to indicate any number of the members of the relevant class.
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Section 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with United States generally
accepted accounting principles consistently applied on the basis used by the
concerned entity in prior years.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
Section 2.01. Revolving Loans. Subject to the terms and conditions
hereinafter set forth, each Bank severally agrees that, upon the Borrower's
request, such Bank will make a loan under this Section 2.01 (each, a "Revolving
Loan") to the Borrower, as provided in Section 3.01, on any Business Day prior
to the first to occur of (i) the Revolving Expiration Date or (ii) the earlier
termination of such Bank's Commitment pursuant to Section 7.02 or Section 9.06,
in an amount equal to the product of (x) such Bank's Revolving Loan Percentage
times (y) the principal amount of the total Revolving Loans then being requested
by the Borrower. The Commitment of each Bank to make Revolving Loans shall
terminate and such Bank shall have no further obligation or liability with
respect thereto upon the first to occur of said events described in clauses (i)
and (ii) of the preceding sentence. In no event shall the Aggregate Revolving
Loans outstanding or requested be such that, after giving effect to any such
request, the Aggregate Revolving Bank Liabilities would exceed the
then-effective Revolving Commitment Amount. Each request by the Borrower for
LIBOR Loans hereunder shall be for an aggregate amount of $2,000,000 or an
integral multiple of $500,000 in excess of $2,000,000. Each Floating Rate Loan
requested will be in the amount of $100,000 or an integral multiple thereof.
The Revolving Loans made hereunder shall be evidenced by the Revolving
Notes of the Borrower, dated as of the date hereof, payable to the order of the
respective Banks. The Borrower hereby irrevocably authorizes each Bank to make
or cause to be made, on a schedule attached to such Bank's Revolving Note or on
the books of such Bank, at or following the time when such Bank makes a
Revolving Loan or receives payment or prepayment of principal of any Revolving
Loan, an appropriate notation reflecting such transaction (including the date,
amount and maturity of each Revolving Loan) and the then aggregate unpaid
principal balance of the Revolving Loans owed to such Bank. The aggregate unpaid
principal amount of each Revolving Loan made by a Bank, as noted by such Bank
from time to time on such a schedule or on its books, shall constitute
presumptive evidence of such amount. Failure of a Bank to make any such notation
shall not, however, affect any obligation of the Borrower hereunder or under any
of the Revolving Notes.
Section 2.02. Requests for Floating Rate Loans. On each occasion
when the Borrower requests Floating Rate Loans, the Borrower will give the Agent
telephonic or written notice, specifying the aggregate principal amount of the
Floating Rate Loans so requested and the date upon which such Loans are to be
made, which date shall be at least one (1) Business Day following that Business
Day on which the Agent shall have received such written or telephonic notice
(except that the Agent may, in its discretion, accept telephonic notice of any
request for Floating Rate Loans up to 10:00 a.m. on the date on which such
Floating Rate Loans are to be
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<PAGE> 16
made). The Agent will promptly notify each Bank that it has received a request
from the Borrower for Floating Rate Loans and will inform each Bank of the
aggregate principal amount requested, the amount of each Bank's Revolving Loan
Percentage of such aggregate principal amount and the date on which each
Floating Rate Loan is to be made.
Section 2.03. Repayment of Principal of Revolving Loans. The Borrower
hereby promises to repay in full all Revolving Loans (together with all interest
accrued thereon) on the first to occur of (i) the Revolving Expiration Date or
(ii) an acceleration under Subsection 7.02(a) following an Event of Default. In
addition, payments will be made by the Borrower so that the Aggregate Revolving
Bank Liabilities will never exceed the Revolving Commitment Amount, as same may
be from time to time reduced. Such prepayments and payments will be made to the
Agent for the account of all Banks on a pro rata basis and will be applied first
to Floating Rate Loans and only thereafter to LIBOR Loans.
Subject to the conditions of this paragraph, the Borrower may prepay,
at any time and from time to time, without premium or penalty, the whole or any
portion of the Floating Rate Loans; provided that the outstanding Floating Rate
Loans made by each Bank shall be paid pro rata. Each LIBOR Loan must be repaid
in full on the last day of the Interest Period applicable thereto. The Borrower
may not make any prepayment of a LIBOR Loan prior to the last day of the
Interest Period applicable thereto unless the Borrower simultaneously with such
prepayment pays all amounts owing to the Banks pursuant to the provisions of
Section 2.08. Any payment of LIBOR Loans shall (except in the event of a
prepayment pursuant to Section 2.10) be made to all Banks on a pro rata basis.
Each prepayment of Revolving Loans, if less than the Aggregate Revolving Loans
then outstanding, shall be in a principal amount of at least $2,000,000 as to
LIBOR Loans and at least $100,000 as to Floating Rate Loans. The Borrower shall
give the Agent at least one Business Day's notice prior to making any prepayment
of any Floating Rate Loan and not less than three Business Days' notice prior to
making any prepayment of a LIBOR Loan. All payments in respect of the Revolving
Loans will be made by the Borrower to the Agent, for the respective accounts of
the Banks entitled to same.
Prior to the Revolving Expiration Date and within the limits and on the
conditions contained in this Agreement, the principal amounts of the Revolving
Loans (both LIBOR Loans and Floating Rate Loans) which are prepaid or repaid are
available for reborrowing hereunder. All Revolving Loans not repaid prior to the
Revolving Expiration Date will be due and payable in full on the Revolving
Expiration Date, together with all unpaid interest accrued thereon to the date
of payment.
Section 2.04. Interest Payments on Revolving Loans. The Borrower hereby
promises to pay interest on the principal amount of the Revolving Loans
outstanding from time to time, from the date of the initial Revolving Loan
hereunder until payment of all Revolving Loans and the Revolving Notes in full.
Interest on Floating Rate Loans will be payable quarterly in arrears on the
first day of each calendar quarter, commencing with the first such date after
the making of any Revolving Loan. Interest on any LIBOR Loan will be paid on
each of the Interest Payment Date or Interest Payment Dates applicable thereto.
In any event, interest shall also be paid on the date of payment of the
Revolving Loans in full. The rate of interest payable on Floating Rate Loans
shall be a fluctuating rate per annum which shall at all times be equal to the
Base Rate as
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<PAGE> 17
in effect from time to time (but in no event in excess of the maximum rate
permitted by then applicable law), with a change in such rate of interest to
become effective on the same day on which any change in the Base Rate is
effective. The rate of interest payable on any LIBOR Loan will be the LIBOR
Interest Rate from time to time applicable thereto. Notwithstanding the
foregoing, following the occurrence and during the continuance of an Event of
Default, interest on each Revolving Loan will be payable at the Default Rate. If
the entire amount of any required principal and/or interest of the Loans is not
paid within ten (10) days after the same is due, the Borrower shall, at the
request of the Agent, pay to the Agent, for the benefit of the Banks, a late fee
equal to five percent (5%) of the required payment.
Section 2.05. LIBOR Loans. Any Revolving Loan made under this Article
II will, except as provided in this Section 2.05, be a Floating Rate Loan.
Subject to the conditions set forth in this Agreement, the Borrower may elect
that the Revolving Loans to be made on any date under Section 2.01 will be made
as LIBOR Loans. Such election shall be made by the Borrower giving to the Agent
a written or facsimile notice (a "LIBOR Borrowing Notice") containing the
information described below, which LIBOR Borrowing Notice must be received by
the Agent not later than 10:00 a.m. (Boston time) on that day which is three
Business Days prior to the date of the proposed borrowing. Each LIBOR Borrowing
Notice must state that LIBOR Loans are being requested, must specify the
aggregate principal amount of the proposed LIBOR Loans requested and must
specify the date on which such LIBOR Loans are to be made and the duration (one
month, two months, three months, six months or twelve months) of the Interest
Period selected by the Borrower for such LIBOR Loans. Any LIBOR Borrowing Notice
shall, upon receipt by the Agent, become irrevocable and binding on the
Borrower. The Agent shall promptly transmit to each Bank a copy of each LIBOR
Borrowing Notice which it receives. If the Borrower submits a LIBOR Borrowing
Notice and then fails for any reason to borrow any LIBOR Loan described therein,
the Borrower shall, upon submission by any Bank of a Bank Certificate with
respect thereto, forthwith indemnify such Bank (with payment to be made to the
Agent for the account of such Bank) against any loss or expense incurred by such
Bank as a result of any such failure by the Borrower, with any failure to borrow
being deemed a prepayment in full for the purpose of Section 2.08. Each LIBOR
Loan will mature and be due and payable in full on the last day of the Interest
Period applicable thereto. The principal amount of any LIBOR Loan so repaid may
be reborrowed as a new LIBOR Loan to the extent and on the terms and conditions
contained in this Agreement by delivery to the Agent of a new LIBOR Borrowing
Notice conforming to the requirements set forth above in this Section 2.05 or,
to the extent and on the terms and conditions contained in this Agreement, may
be reborrowed as a Floating Rate Loan (and any LIBOR Loan not so repaid and not
so reborrowed as a new LIBOR Loan will be deemed to have been so reborrowed as a
Floating Rate Loan). Notwithstanding the foregoing, unless the Agent shall
otherwise consent, there may not be more than five different Interest Periods in
effect at any one time.
Any request for a LIBOR Loan may be made only by a duly authorized
officer of the Borrower; provided, however, that the Agent may conclusively rely
upon any written or facsimile communication received from any individual whom
the Agent believes in good faith to be such a duly authorized officer.
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Notwithstanding any other provision of this Agreement, the Agent need
not permit the making of any LIBOR Loan at any time when there exists any
Default or Event of Default. Further, and without limitation of the foregoing,
the Agent will not permit the making of any LIBOR Loan at any time during any
period beginning on that date when the Agent has received from the Borrower or
from any Bank written notice that a Default or Event of Default has occurred and
continuing until each such Default or Event of Default has been waived by the
requisite percentage of Banks or has been cured and the Agent has been notified
in writing of such cure by Banks holding sufficient Loans or having sufficient
Commitments that such Banks could, under Section 9.02, waive each such Default
or Event of Default.
Section 2.06. Commitment and Other Fees. The Borrower will pay to the
Agent, for the account of each of the Banks, on the first day of each calendar
quarter, commencing on April 1, 1999 and on the Revolving Expiration Date or
date of earlier termination of the within facility for Revolving Loans,
commitment fees ("Commitment Fees") computed quarterly in arrears (being
computed through the last day of the immediately preceding calendar quarter) on
the daily average unused portion of such Bank's Revolving Loan Percentage of the
Revolving Commitment Amount (as such Revolving Commitment Amount shall be in
effect on the relevant day) during the calendar quarter (or portion thereof) for
which such Commitment Fees are to be determined. Such Commitment Fees will be
payable, based on such daily average unused portion of each Bank's Revolving
Loan Percentage of the Revolving Commitment Amount, at a rate per annum which
shall at all times be equal to the Applicable Commitment Fee Rate, as in effect
from time to time, appropriately prorated for any partial calendar quarter. As
used herein, the "unused portion" of a Bank's Revolving Loan Percentage of the
Revolving Commitment Amount on any date shall mean that amount by which (x) such
Bank's Revolving Loan Percentage of the then-effective Revolving Commitment
Amount exceeds (y) the total of (1) the then total outstanding principal amount
of all Revolving Loans made by such Bank plus (2) the total Letter of Credit
Exposure of such Bank at such date. As used herein, the "Letter of Credit
Exposure" of Fleet is the total outstanding amounts of all letters of credit
issued by Fleet under Section 2.11 for the account of the Borrower, less the
amounts participated to any other Bank hereunder. The "Letter of Credit
Exposure" of any Bank other than Fleet is the total outstanding amount in which
such other Bank has a participation interest with respect to letters of credit
issued by Fleet under Section 2.11 for the account of the Borrower. The Borrower
will also pay to Fleet certain Agent's fees, origination fees and other fees
with respect to the Loans, all as separately agreed between Fleet and the
Borrower.
The Commitment Fees, origination fees, Agent's fee and other fees
provided for in this Section 2.06 are in addition to any fees, balances or
charges which may be applicable to other services now or hereafter provided to
the Borrower by any Bank or by any of their respective affiliates.
Section 2.07. Rate Determination Protection. In the event that:
(i) the Agent shall determine that, by reason of circumstances
affecting the London interbank market or otherwise, adequate and
reasonable methods do not exist for ascertaining LIBOR for any Interest
Period, or
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(ii) any Bank shall determine that:
(A) the making or continuation of any LIBOR Loan has been made
impracticable or unlawful by (1) the occurrence of a contingency
that materially and adversely effects the London interbank market
or (2) compliance by such Bank in good faith with any applicable
law or governmental regulation, guideline or order or
interpretation or change thereof by any governmental authority
charged with the interpretation or administration thereof or with
any request or directive of any such governmental authority
(whether or not having the force of law); or
(B) LIBOR (as adjusted to take into account any applicable
Reserve Rate) will not adequately and fairly reflect the cost to
such Bank of funding its LIBOR Loans for such Interest Period
then the Agent or such Bank, as the case may be, shall forthwith give notice of
such determination (which shall be conclusive and binding on the Borrower) to
the Borrower. In such event, the obligations of each affected Bank to make any
new LIBOR Loans shall be suspended until such Bank determines that the
circumstances giving rise to such suspension no longer exist, whereupon such
Bank shall notify the Borrower.
Section 2.08. Prepayment of LIBOR Loans. The following provisions
of this Section 2.08 shall be effective only with respect to LIBOR Loans:
Subject to the terms of Section 2.03 above, the Borrower shall have right
(subject to the payment of the yield maintenance fee described below) to prepay
any such LIBOR Loan at any time. If, due to acceleration of any of the Revolving
Notes, or due to voluntary or mandatory repayment or prepayment, or due to any
other reason, any Bank receives payment of all or any portion of principal of
any LIBOR Loan on any date prior to the last day of the then relevant Interest
Period or if any LIBOR Loan is for any reason converted to a Floating Rate Loan
prior to the last day of the then relevant Interest Period, the Borrower shall,
upon demand and receipt of a Bank Certificate from any affected Bank with
respect thereto, pay forthwith to such Bank a yield maintenance fee in an amount
computed as follows: The current rate for United States Treasury securities
(bills on a discounted basis shall be converted to a bond equivalent) with a
maturity date closest to the last day of the Interest Period applicable to the
affected LIBOR Loan shall be subtracted from the "cost of funds" component of
the fixed rate (i.e., reserve-adjusted LIBOR) in effect at the date of
prepayment or conversion. If the result is zero or a negative number, there
shall be no yield maintenance fee. If the result is a positive number, then the
resulting percentage shall be multiplied by the amount of the principal balance
being so prepaid or converted. The resulting amount shall be divided by 360 and
multiplied by the number of days remaining in the relevant Interest Period. Said
amount shall be reduced to present value calculated by using the number of days
remaining in the relevant Interest Period and by using the above-referenced
United States Treasury security rate as the discount rate. The resulting amount
shall be the yield maintenance fee due to the Bank upon prepayment or conversion
of the applicable LIBOR Loan. Any acceleration of a LIBOR Loan due to an Event
of Default will give rise to a yield maintenance fee calculated with the respect
to such LIBOR Loan on the date of such acceleration in the same manner as though
the Borrower had exercised a right of prepayment at that date, such yield
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maintenance fee being due and payable at that date. No LIBOR Loan may be
converted to a Floating Rate Loan except as provided in Section 2.10.
Section 2.09. Increased Costs; Capital Adequacy.
(a) If the adoption or effectiveness, after the date hereof, of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) shall subject any Bank to any Imposition or other charge with
respect to any LIBOR Loan or its obligation to make LIBOR Loans, or shall
change the basis of taxation of payments to any Bank of the principal of or
interest on any LIBOR Loan or any other amounts due under this Agreement in
respect of any LIBOR Loan or its obligation to make LIBOR Loans (except for
changes in the rate of tax on the overall net income of such Bank); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit, deposit insurance or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding any such requirement already taken
into account in determining the applicable Reserve Rate) against assets of,
deposits with or for the account of, or credit extended by, any Bank or
shall impose on any Bank or on the London interbank market any other
condition affecting any LIBOR Loan of such Bank, or such Bank's obligations
to make LIBOR Loans
and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining any LIBOR Loan, or to reduce the amount of any sum
received or receivable by such Bank under this Agreement or under its Revolving
Note with respect thereto, by an amount deemed by such Bank to be material,
then, upon demand by such Bank and receipt of a Bank Certificate from such Bank
with respect thereto, the Borrower shall pay to the Agent for the account of
such Bank such additional amount or amounts as such Bank certifies to be
necessary to compensate such Bank for such increased cost or reduction in amount
received or receivable; provided, however, that the Borrower's obligations under
this Subsection 2.09(a) are subject to the limitation contained in Subsection
2.09(c).
(b) If any Bank shall have determined that the adoption or
effectiveness after the date hereof of any applicable law, rule or regulation
regarding capital requirements for banks or bank holding companies, or any
change therein after the date hereof, or any change after the date hereof in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank with any request or directive of such entity
regarding capital adequacy (whether or not having the force of law) has or would
have the effect of reducing the return on such Bank's capital with respect to
its Commitment or with respect to any Loan or Loans (whether or not LIBOR Loans)
to a level below that which such Bank would have achieved (taking into
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consideration such Bank's policies with respect to capital adequacy immediately
before such adoption, effectiveness, change or compliance and assuming that such
Bank's capital was then fully utilized) by any amount deemed by such Bank to be
material: (i) such Bank shall promptly after its determination of such
occurrence give notice thereof to the Borrower; and (ii) the Borrower shall pay
to the Agent for the account of such Bank as an additional fee from time to time
on demand such amount as such Bank certifies to be the amount that will
compensate it for such reduction; provided, however, that the Borrower's
obligations under this Subsection 2.09(b) are subject to the limitation
contained in Subsection 2.09(c).
(c) Each Bank will endeavor to give the Borrower, within 270 days
following the occurrence of any event or circumstance giving rise to a payment
to such Bank under Subsection 2.09(a) and/or 2.09(b), written notice of such
occurrence. If a Bank fails to give such notice within such 270-day period, such
Bank will not be entitled to compensation under Subsection 2.09(a) and/or
Subsection 2.09(b), as applicable, for any amounts incurred or accrued more than
270 days prior to the date on which such Bank does give such notice to the
Borrower.
(d) No failure on the part of any Bank to demand compensation on any
one occasion shall constitute a waiver of its right to demand such compensation
on any other occasion. A Bank Certificate of any Bank claiming compensation
under this Section 2.09 shall be conclusive in the absence of manifest error.
Such certificate shall set forth the nature of the occurrence giving rise to
such compensation, the additional amount or amounts to be paid to the relevant
Bank hereunder and the method by which such amounts were determined. In
determining such amount, a Bank may use any reasonable averaging and attribution
methods. The Borrower shall pay to each Bank, on demand, any taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges
(including net income taxes and franchise taxes), and all liabilities with
respect thereto, imposed by any jurisdiction on account of amounts payable or
paid pursuant to this Section 2.09.
(e) Each Bank and the Agent agrees that it will (i) take all reasonable
actions reasonably requested by the Borrower that are without risk or material
cost to such Bank or the Agent (as the case may be) to maintain all exemptions
available to it from withholding taxes (whether available by treaty or existing
administrative waiver), including the filing of any certificate or document if
such filing would avoid the need for or reduce the amount of any such additional
amounts payable to or for the account of such Bank or the Agent (as the case may
be) pursuant to this Section 2.09, and (ii) to the extent reasonable and without
material cost to it, otherwise cooperate with the Borrower to minimize any
amount payable by the Borrower under this Section.
Section 2.10. Illegality or Impossibility. Notwithstanding any
other provision of this Agreement, if the introduction of or any change in or in
the interpretation or administration of any law or regulation applicable to any
Bank or any Bank's activities in the London interbank market shall make it
unlawful, or any central bank or other governmental authority having
jurisdiction over any Bank or any Bank's activities in the London interbank
market shall assert that it is unlawful, or otherwise make it impossible, for
any Bank to perform its obligations hereunder to make LIBOR Loans or to continue
to fund or maintain such LIBOR Loans, then on notice thereof and demand therefor
by such Bank to the Agent and the Borrower, (i) the
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obligation of such Bank to fund LIBOR Loans shall terminate and (ii) the
Borrower shall convert to Floating Rate Loans all affected LIBOR Loans or prepay
in full all affected LIBOR Loans, in each case prior to the last day on which
such LIBOR Loans may legally remain outstanding.
Section 2.11. Letters of Credit. (a) Subject to the terms and
conditions of this Agreement (including, without limitation, satisfaction of the
conditions set forth in Section 4.02), at the request of the Borrower made prior
to the Revolving Expiration Date, Fleet will from time to time issue stand-by
letters of credit for the account of the Borrower; provided that (i) the
aggregate of all Letter of Credit Liabilities outstanding will at no time exceed
$1,000,000, (ii) the letter of credit issuance fee for any such stand-by letter
of credit will be an annual payment (payable in advance) equal to 1% of the then
stated amount of such letter of credit (payable to Fleet, for the pro rata
benefit of Fleet and the Participant Banks (as defined below)), and (iii) at the
time of issuance of any such letter of credit and after giving effect thereto
the Aggregate Revolving Bank Liabilities will not exceed the then-effective
Revolving Commitment Amount. Further, no letter of credit may be issued with an
expiry date later than the Revolving Expiration Date nor with an expiry date
(before giving effect to any "evergreen" provisions) in excess of 365 days from
the date of issuance. All letters of credit issued under this Section 2.11 and
the reimbursement agreements and other documentation relating thereto will be in
such form as Fleet may require and all transfer fees, negotiation fees, drawing
fees and other charges for out-of-pocket expenses in connection with such
letters of credit will be solely for the account of Fleet. Fleet will not be
required to issue any such letter of credit if the Borrower has failed to
satisfy any of the conditions of Section 4.02. Further, and without limitation
of the foregoing, Fleet will not issue any letter of credit under this Agreement
at any time during any period beginning on that date when the Agent has received
from the Borrower or from any Bank written notice that a Default or Event of
Default has occurred and continuing until each such Default or Event of Default
has been waived by the requisite percentage of Banks or has been cured and the
Agent has been notified in writing of such cure by Banks holding sufficient
Loans or having sufficient Commitments that such Banks could, under Section
9.02, waive each such Default or Event of Default.
(b) If any letter of credit is issued hereunder by Fleet, each Bank
other than Fleet (each, a "Participant Bank") will be deemed thereupon
automatically to have purchased a participation in such letter of credit from
Fleet in proportion to such Participant Bank's respective Revolving Loan
Percentage. The terms of such participation will (1) require the Participant
Bank to fund to Fleet, on the same Business Day as any amount is drawn under the
letter of credit, the Participant Bank's Revolving Loan Percentage of any amount
so drawn and not immediately reimbursed by the Borrower, (2) require Fleet to
account to the Participant Bank for an amount equal to the Participant Bank's
Revolving Loan Percentage of each letter of credit issuance fee (but not drawing
fees, negotiation fees, transfer fees or other fees representing compensation
for costs and expenses incurred by Fleet) collected by Fleet in connection with
such letter of credit, (3) require Fleet to account to the Participant Bank for
the Participant Bank's share of any reimbursement payment made by the Borrower
to Fleet with respect to any amount drawn under a letter of credit in which the
Participant Bank has participated in the funding as described in clause (1)
above, and (4) require Fleet to account to the Participant Bank for any interest
collected by Fleet from the Borrower on the amount funded (appropriately
prorated for the period so funded), as hereinabove provided, by the Participant
Bank. The Borrower hereby
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authorizes Fleet, without further request from the Borrower or from any other
party, to cause the Borrower's liability to Fleet or the Banks (or any of them)
for reimbursement of funds drawn under any such letter of credit to be repaid
from the proceeds of a Floating Rate Loan to be made hereunder. The Borrower
hereby irrevocably requests that such Floating Rate Loans be made and each Bank
agrees to fund its pro rata share of same, notwithstanding that the amount
thereof may not be in a minimum amount or an integral multiple as otherwise
required for a Floating Rate Loan request and notwithstanding any default which
may then exist; provided that no such Floating Rate Loan shall be made so as to
cause the Aggregate Revolving Bank Liabilities to exceed the then effective
Revolving Commitment Amount. If such a Floating Rate Loan is for any reason not
made pursuant to the immediately preceding sentence, the Borrower will be deemed
to owe to Fleet and to each Participant Bank a demand loan (which will for all
purposes be deemed a "Loan" under this Agreement) in the amount of the letter of
credit drawing funded by each of them, respectively, and not reimbursed by the
Borrower.
(c) Each Bank and the Borrower agree that, in paying any drawing under
a letter of credit, Fleet shall not have any responsibility to obtain any
document (other than any sight draft and certificates expressly required by the
relevant letter of credit) or to ascertain or inquire as to the validity or
accuracy of any document or the authority of the Person executing or delivering
any document.
(d) Neither Fleet nor any of the respective correspondents,
participants or assignees of Fleet shall be liable to any Bank for: (i) any
action taken or omitted in connection herewith at the request of or with the
approval of the Banks (including the Required Banks, as applicable); (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document relating to any letter of credit.
(e) The Borrower hereby assumes (as between the Borrower and Fleet) all
risks of the acts or omissions of any beneficiary or transferee with respect to
its use of any letter of credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrower from pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. Neither Fleet nor any of the respective correspondents,
participants or assignees of Fleet shall be liable or responsible for any of the
matters described in clauses (i) through (vii) of Subsection 2.11(f); provided,
however, that the Borrower may have a claim against Fleet, and Fleet may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by Fleet's willful misconduct or gross
negligence or Fleet's willful failure to pay under any letter of credit issued
for the account of the Borrower after the presentation to Fleet by the
beneficiary of such letter of credit of a sight draft and certificate(s)
strictly complying with the terms and conditions of such letter of credit. In
furtherance and not in limitation of the foregoing: (i) Fleet may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary;
and (ii) Fleet shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
letter of credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
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<PAGE> 24
(f) The obligations of the Borrower under this Agreement and any
reimbursement agreement or other related documents (collectively, "L/C
Documents") to reimburse Fleet for a drawing under a letter of credit and to
repay any Letter of Credit Liabilities and any drawing under a letter of credit
converted into Revolving Loans shall be unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement and such L/C
Documents under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement
or any L/C Documents;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Borrower in
respect of any letter of credit, or any other amendment or waiver of or
any consent to departure from any of the L/C Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of any letter of credit (or any Person for whom any such
beneficiary or any such transferee may be acting), Fleet or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by any L/C Documents or any unrelated
transaction;
(iv) any draft, demand, certificate or other document
presented under any letter of credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any letter of credit;
(v) any payment by Fleet under any letter of credit against
presentation of a draft or certificate that does not strictly comply
with the terms of such letter of credit; or any payment made by Fleet
under any letter of credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor
to any beneficiary or any transferee of any letter of credit, including
any arising in connection with any bankruptcy or reorganization
proceedings;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Borrower in respect of any letter of credit; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Borrower.
Section 2.12. Rate Adjustment. This Agreement contemplates that
each of the Incremental Rates will be adjusted upon each change in Compliance
Level (hereinafter defined).
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As used herein, (i) the term "Rate Adjustment Date" will mean the 45th day after
the close of each fiscal quarter of the Borrower, commencing with June 14, 1999,
and (ii) as to each Rate Adjustment Date, the relevant "Adjustment Measurement
Date" will be the fiscal quarter-end immediately preceding such Rate Adjustment
Date. The Compliance Level will be determined on each Rate Adjustment Date,
based on the Borrower's Consolidated Leverage Ratio determined as at the
Adjustment Measurement Date relevant thereto and (except as otherwise provided
below) will remain in effect until (but not including) the next following Rate
Adjustment Date. For the purposes of this Agreement, the Borrower will be deemed
to be in Level One Compliance as at any Rate Adjustment Date if and only if the
Borrower's Consolidated Leverage Ratio as at the relevant Adjustment Measurement
Date is less than 0.5 to 1. The Borrower will be deemed to be in Level Two
Compliance as at any Rate Adjustment Date if the Borrower is not in Level One
Compliance as at such Rate Adjustment Date but the Borrower's Consolidated
Leverage Ratio as at the relevant Adjustment Measurement Date is less than 1.0
to 1. The Borrower will be deemed to be in Level Three Compliance as at any Rate
Adjustment Date if the Borrower is neither in Level One Compliance nor in Level
Two Compliance as at such Rate Adjustment Date. The Compliance Level to take
effect on each Rate Adjustment Date (including, without limitation, that Rate
Adjustment Date which falls in the first quarter of each fiscal year of the
Borrower) will be determined based on the unaudited consolidated financial
statements of the Borrower as at the relevant Adjustment Measurement Date
furnished pursuant to Subsection 6.03(b); provided that if the audited annual
consolidated financial statements of the Borrower (when received by the Banks
pursuant to Subsection 6.03(a)) indicate that as at any Adjustment Measurement
Date which is a fiscal year-end the Borrower's Consolidated Leverage Ratio, as
evidenced by said audited financial statements (the "Audited Q4 Consolidated
Leverage Ratio"), was different from that Consolidated Leverage Ratio (the
"Unaudited Q4 Consolidated Leverage Ratio") which had been shown on the
management-generated financial statements theretofore delivered to the Banks
pursuant to Subsection 6.03(b) with respect to such Adjustment Measurement Date
and the difference is such that the Audited Q4 Consolidated Leverage Ratio would
result in a Compliance Level different from that calculated with reference to
the Unaudited Q4 Consolidated Leverage Ratio, then, promptly after the relevant
audited financial statements have been received by the Banks, (i) the Compliance
Level will be adjusted to reflect the Audited Q4 Consolidated Leverage Ratio and
(ii) as applicable, either the Borrower will pay to each Bank (in the case of an
increase in the Consolidated Leverage Ratio) an amount which reflects the
additional interest and Commitment Fees which such Bank would have received for
the period beginning on the relevant Rate Adjustment Date and continuing through
the date of such adjustment if the higher Consolidated Leverage Ratio had been
in effect, or (in the case of a decrease in the Consolidated Leverage Ratio)
each Bank will pay to the Borrower (or credit against payments thereafter coming
due under this Agreement and/or such Bank's Revolving Note) an amount equal to
the excess interest and fees which each Bank actually received for the period
beginning on the relevant Rate Adjustment Date and continuing through the date
of such adjustment, "excess interest and fees" being deemed to mean for the
purposes of this paragraph, as to each Bank, the result, if positive, of (x) the
interest and Commitment Fees actually received by such Bank for such period
minus (y) the interest and Commitment Fees which would have been received by
such Bank for such period had the Compliance Level corresponding to the Audited
Q4 Consolidated Leverage Ratio been in effect throughout such period. Further,
and notwithstanding anything provided above in this Section 2.12, if the
Borrower's financial statements for any fiscal quarter are for any reason
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not timely delivered to the Banks, the Borrower will be deemed to be in Level
Three Compliance unless and until such financial statements are so delivered to
the Banks, at which time the Compliance Level will be determined based on such
financial statements and the Incremental Rates will be adjusted (if the
Compliance Level so determined is not Level Three Compliance), such adjustment
to be effective as at the date of delivery of the relevant financial statements
and without retroactive effect. No rate adjustment provided for herein will be
deemed to excuse or waive any default resulting from the failure by the Borrower
to comply with any other provision of this Agreement (including, without
limitation, the provisions of Subsections 6.01(q), (r) and (s) of this
Agreement) and, in the event of any such default, the Agent and the Banks will
have all of their rights and remedies described in Article VII below consequent
thereon. Notwithstanding the foregoing, the Borrower will be deemed to be in
Level One Compliance from the date of this Agreement to June 14, 1999, at which
date the Compliance Level will be determined on the basis of the relevant
Adjustment Measurement Date (i.e., April 30, 1999).
ARTICLE III
LOAN PROCEEDS AND PAYMENTS
Section 3.01. Funding by Banks; Availability. Promptly after the
receipt by the Agent of a request for the borrowing of Revolving Loans, the
Agent will give a telephonic notice thereof to each Bank. On any Business Day on
which Revolving Loans are to be made to the Borrower hereunder, each Bank will
make available to the Agent, at the Principal Office of the Agent, in
immediately available funds, such Bank's Revolving Loan Percentage of such
Revolving Loans. Each Bank will make such funds available to the Agent prior to
2:00 p.m. (Boston Time) (the "Wire Deadline") on such Business Day, provided
that, such Bank has received, prior to 11:00 a.m. (Boston time) on such Business
Day (or as provided in the sixth sentence of Section 2.05 in the case of LIBOR
Loans), written or telephonic notice of the aggregate amount of the Revolving
Loans to be made and such Bank's Revolving Loan Percentage thereof. In the event
that such immediately available funds are not received from a Bank by the Wire
Deadline on any Business Day, such Bank's portion of such Revolving Loan will
not be made for the account of such Bank until the Business Day next following
the day on which such immediately available funds are received by the Agent. The
Agent may make temporary loans (each, a "Temporary Loan") to the Borrower to
cover any portion of a proposed Revolving Loan which is not funded by the Wire
Deadline, but shall have no obligation to do so. Each Temporary Loan shall be
upon such terms and conditions as the Agent and the Borrower may agree; all
funds subsequently received by the Agent from the relevant Bank with respect to
this Agreement shall be applied to repayment of the Temporary Loan made by the
Agent until it is paid in full. Any Temporary Loan will be payable by the
Borrower on demand and will bear interest at a per annum rate which shall at all
times be equal to the Base Rate, with a change in such rate to become effective
on the same day when each change in the Base Rate becomes effective.
The Commitment of each Bank under this Agreement is the several and
individual commitment of such Bank, and neither the Agent nor any other Bank
shall have any liability for the failure of a Bank to honor its Commitment
hereunder. No failure by a Bank to honor its Commitment hereunder will excuse
any other Bank from honoring its own Commitment.
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Section 3.02. Charges Against Accounts. The Agent may charge any
general deposit account maintained with the Agent by the Borrower with the
amount of all payments of principal, interest and fees due, from time to time,
under this Agreement and/or any of the Revolving Notes; and will thereafter
notify the Borrower of the amount so charged. The failure of the Agent so to
charge any account or to give any such notice shall not affect the obligation of
the Borrower to pay interest, principal or other sums as provided herein and/or
in the Revolving Notes. The Borrower hereby authorizes the Agent to pay the
amounts so charged to itself and/or the Banks, in the manner described in the
second sentence of Section 3.04.
Section 3.03. Use of Loan Proceeds. The proceeds of all Revolving
Loans will be used by the Borrower solely for the following purposes: (i) for
Permitted Acquisitions and Capital Expenditures permitted hereunder and (ii) for
working capital purposes. Letters of credit may be used to support the
Borrower's workers' compensation program and for other general corporate
purposes.
Section 3.04. Payments. Subject to Section 3.02 and Section 7.03,
all payments of interest, principal and any other sum payable hereunder and/or
the Revolving Notes shall be made to the Agent at its Principal Office, in
lawful currency of the United States in immediately available funds. Subject to
the provisions of Sections 8.04 and 9.04, all payments received by the Agent
shall be applied as follows: First, to fees, costs, charges and expenses of the
Banks (including Fleet as a letter of credit issuer) and/or the Agent payable by
the Borrower under this Agreement or any of the other Loan Documents, being
applied pro rata among such Banks and the Agent in proportion to the respective
amounts then owed to each of them for such fees, costs, charges and expenses;
Second, to the payment of interest, being applied pro rata among the Banks
(including the Agent with respect to any Temporary Loans made by the Agent and
Fleet as a letter of credit issuer) in proportion to the respective amounts then
owed to each of them on account of interest then accrued and unpaid on the
Loans; Third, to the payment of principal of the Revolving Loans and Temporary
Loans, being applied pro rata among the Banks (including the Agent with respect
to any Temporary Loans made by the Agent and Fleet as a letter of credit issuer)
in proportion to the respective amounts then owed to each of them on account of
principal of the Revolving Loans and Temporary Loans; and Fourth, to the payment
of any other amounts owed hereunder or any of the other Loan Documents.
All payments received from the Borrower by the Agent after 2:00 p.m. on
any day shall be deemed received by the Agent as of the next succeeding Business
Day. Interest payable under the Revolving Notes and/or this Agreement shall be
computed on the basis of a year of 360 days for the number of days actually
elapsed.
Section 3.05. Payment on Non-Business Days. Whenever any payment to
be made hereunder or under any of the Revolving Notes shall be stated to be due
on a day which is not a Business Day, such payment may be made on the next
succeeding Business Day, and interest payable on each such date shall include
the amount thereof which shall accrue during the period of such extension of
time.
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Section 3.06. Net Payments. All payments by the Borrower hereunder
and/or in respect of any Revolving Note shall be made net of any Impositions and
without deduction, set-off or counterclaim, notwithstanding any claim which the
Borrower may now or at any time hereafter have against the Agent or any Bank or
any other Person.
ARTICLE IV
CONDITIONS OF LENDING
Section 4.01. Conditions Precedent to Initial Loan. Prior to the
making of the initial Loan hereunder (or the issuance of any letter of credit
hereunder), the Borrower shall deliver to each Bank a duly executed copy of this
Agreement and such Bank's respective Revolving Note, and shall deliver to the
Agent the documents enumerated below in this Section 4.01, all of which, as well
as all legal matters incident to the transactions contemplated hereby, shall be
satisfactory in form and substance to the Agent and its counsel:
(a) Certified copies of the resolutions of the Board of Directors (and,
if necessary, the stockholders) of the Borrower evidencing approval of this
Agreement, the Revolving Notes and the other matters contemplated hereby and
thereby and certified copies of all documents evidencing other necessary
corporate action or approvals, if any, with respect to this Agreement, the
Revolving Notes and such other matters, including, without limitation, any
required approvals of governmental authorities and other Persons.
(b) A certificate, signed by the Secretary of the Borrower, setting
forth the names and titles of the officers of the Borrower authorized to sign
this Agreement, the Revolving Notes and any and all other agreements,
certificates, notices and reports referred to herein; such certificate shall
contain the true signatures of such officers and shall state that the Agent and
the Banks may conclusively rely on the statements made therein until the Agent
shall receive a further certificate of such Secretary canceling or amending the
prior certificate and submitting signatures of the officers named in such
further certificate.
(c) A copy of the Charter of the Borrower and all amendments thereto,
certified by the appropriate Maryland state officer; a copy of the by-laws of
the Borrower, as amended to date, as certified by its Secretary; certificates of
legal existence and good standing (including, without limitation, tax good
standing) for the Borrower in Maryland; and certificates of the appropriate
state officials and agencies in all other jurisdictions in which the Borrower
maintains any plant, office or other location or is otherwise required to
qualify to do business, in each case attesting as to the Borrower's
qualification and good standing (including, without limitation, tax good
standing) in each such jurisdiction.
(d) A favorable written opinion of counsel to the Borrower, in form and
substance satisfactory to the Agent.
(e) Consolidated and consolidating financial statements of the Borrower
as at January 31, 1998 and for the fiscal year then ended, certified by the
Borrower's independent
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certified public accountants. Also, management-prepared financial statements as
at January 31, 1999.
(f) Interim financial statements for the Borrower as at each of April
30, 1998, July 31, 1998 and October 31, 1998 and for the fiscal periods then
ended.
(g) A certificate dated the date of the initial Loan or letter of
credit issuance, given by an authorized officer of the Borrower, affirming
compliance with the conditions of Subsections 4.02(a)-(d).
(h) A certificate executed by the chief financial officer of the
Borrower, dated the date of such initial Loan or letter of credit issuance,
demonstrating compliance with each of Subsections 6.01(q), 6.01(r) and 6.01(s).
(i) Certificates of the insurance required hereunder.
(j) Such documents which, in the opinion of any Bank, are required to
be obtained in connection with the Loans to be made by such Bank by reason of
the provisions of any law or regulation applicable to such Bank, and the
statements made in such documents shall be such as, in the opinion of such Bank,
will permit such Loans from such Bank in accordance with such laws and
regulations.
(k) Such other documents, instruments, records, assignments, consents,
certificates, opinions, assurances and authorizations as the Agent shall
reasonably require.
(l) It shall also be a prerequisite to the making of any Revolving
Loans or the issuance of any letter of credit under this Agreement that the
Borrower shall have obtained and shall have delivered to the Agent (with copies
to the Banks) a Subsidiary Guaranty from Benchmarq Microelectronics, Inc.
("Benchmarq") in a form satisfactory to the Agent and the Banks and shall have
delivered to the Agent (with copies to the Banks) the opinions, certificates and
other items contemplated by Subsection 6.01(p) with respect to said Subsidiary
Guaranty from Benchmarq.
Section 4.02. Conditions Precedent to All Loans. The obligation of
each Bank to make any Loan (including the initial Loan) and the obligation of
Fleet to issue any letter of credit for the account of the Borrower are subject
to the further conditions precedent that on the date on which such Loan is made
or on which such letter of credit is issued (and, in each case, after giving
effect to such transaction):
(a) The statements, representations and warranties of the Borrower made
in this Agreement shall continue to be correct as of the date of such Loan or
letter of credit issuance, as the case may be, excluding, however,
representations and warranties which are expressly stated herein as being made
as of a specific date and also excluding representations and warranties of
existing circumstances to the extent that Sections 6.01 and 6.02 of this
Agreement expressly contemplate that such circumstances may change without
violation of this Agreement.
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(b) The covenants and agreements of the Borrower contained herein shall
have been complied with on and as of the date of such Loan or letter of credit
issuance, as the case may be.
(c) No Default or Event of Default shall have occurred and be
continuing.
(d) No material adverse change shall have occurred in the financial
condition of the Borrower from that disclosed in the financial statements then
most recently furnished to the Banks.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties. As an inducement to
the Banks to execute this Agreement and to make Loans hereunder to the Borrower,
the Borrower hereby represents and warrants to the Agent and to each Bank as
follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of Maryland. The Borrower has the corporate
power and authority to enter into and perform this Agreement, to execute and
deliver each of the Revolving Notes, to enter into and perform all of the
obligations required of the Borrower by all other instruments and other
documents referred to herein to which it is a party, to fulfill its obligations
set forth herein and therein and to carry out the transactions contemplated
hereby and thereby. The Borrower has all requisite corporate power to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted. The Borrower is duly qualified to do business and in
good standing in New Hampshire and in each other jurisdiction where the Borrower
owns, leases or operates any real or personal property and in each other
jurisdiction where the failure to be so qualified could (singly or in the
aggregate with all such other failures to be qualified) have a material adverse
effect on the business, prospects, condition, affairs or operations of the
Borrower, all such jurisdictions being as set forth on Exhibit B hereto. At the
date of this Agreement, except as set forth on Exhibit B hereto, the Borrower
has no Subsidiaries and the Borrower is not a member of any partnership or joint
venture.
(b) At the date hereof, except as set forth on Exhibit C hereto, no
Person is known by the Borrower to own, of the record and/or beneficially, 5% or
more of any class of outstanding securities of the Borrower. The Borrower owns,
directly or indirectly, 100% of the capital stock of each of its Subsidiaries,
if any.
(c) The execution, delivery and performance of this Agreement, the
Revolving Notes and the other documents required to be executed by the Borrower
pursuant hereto have been duly authorized by all necessary corporate action,
will not require the consent of any third party, and will not conflict with,
violate the provisions of, or cause a default or constitute an event which, with
the passage of time or the giving of notice or both, could constitute a default
on the part of the Borrower under any contract, agreement, law, rule, order,
ordinance, franchise, instrument or other document or under any provision of the
Charter or by-laws of the Borrower, or result in the imposition of any lien or
encumbrance (except in favor of the Agent) on any property or assets of
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the Borrower. This Agreement and the other documents delivered to the Agent or
to any Bank by the Borrower pursuant hereto (including, without limitation, the
Revolving Notes) have been duly executed and delivered and constitute the legal,
valid and binding obligations of the Borrower, enforceable as against the
Borrower in accordance with their respective terms.
(d) Except as disclosed on Exhibit D hereto, there are no actions,
suits, proceedings or investigations pending or, to the knowledge of the
Borrower, threatened, anticipated or contemplated (nor, to the knowledge of the
Borrower, is there any basis therefor) against or affecting the Borrower or any
Subsidiary of the Borrower by or before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, which
could prevent or hinder the consummation of the transactions contemplated hereby
or call into question the validity of this Agreement, any Revolving Note or any
other instrument provided for or contemplated by this Agreement or any action
taken or to be taken in connection with the transactions contemplated hereby or
thereby, nor are there any such actions, suits, proceedings or investigations
pending or, to the knowledge of the Borrower, threatened, anticipated or
contemplated which, if determined adversely to the Borrower or any Subsidiary of
the Borrower, in any single case or in the aggregate, could result in any
material adverse change in the business, prospects, condition, affairs or
operations of the Borrower.
(e) Neither the Borrower nor any Subsidiary of the Borrower is in
violation of any term of its Charter or by-laws, as now in effect, nor in
violation of any mortgage, indenture or judgment, decree or order, any other
instrument, contract or agreement or any administrative determination, failure
to comply with which, singly or in the aggregate with all such other failures,
could have a material adverse effect upon the business, prospects, condition,
affairs or operations of the Borrower.
(f) The Borrower and each Subsidiary of the Borrower has filed proper
and accurate federal, foreign, state and local tax returns, reports and
estimates for all years and periods for which any such returns, reports or
estimates were required to be filed and has paid all taxes, assessments,
impositions, fees and other governmental charges required to be paid in respect
of the periods covered by any such returns, reports or estimates. Neither the
Borrower nor any such Subsidiary is delinquent in the payment of any tax,
assessment or governmental charge, and no deficiencies for any tax, assessment
or governmental charge have been asserted or assessed, and the Borrower knows of
no material tax liability or basis therefor.
(g) The Borrower is in compliance with (and each Subsidiary of the
Borrower is in compliance with) all requirements of law, federal, state and
local, and all requirements of all governmental bodies or agencies having
jurisdiction over it, the conduct of its business, the use of its properties and
assets and all premises occupied by it, failure to comply with which could,
singly or in the aggregate with all other such failures, have a material adverse
effect upon the business, prospects, condition, affairs or operations of the
Borrower. Without limiting the foregoing, the Borrower and each Subsidiary of
the Borrower has all the required franchises, licenses, permits, certificates
and authorizations needed for the conduct of its business and the use of its
properties and all premises occupied by it, as now conducted, owned and used or
as proposed to be conducted, owned and used, other than any such franchises,
licenses, certificates or authorizations the failure to obtain which could not,
singly or in the aggregate with all other
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such failures, have a material adverse effect upon the business, prospects,
condition, affairs or operations of the Borrower. Neither the Borrower nor any
Subsidiary of the Borrower has received any notice, not heretofore complied
with, from any federal, state or local authority or any insurance or inspection
body that any of its properties, facilities, equipment or business procedures or
practices fails to comply with any applicable law, ordinance, regulation,
building or zoning law or any other requirement of any such authority or body.
No authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, is or will be necessary
to the valid execution or delivery of, or for the performance by the Borrower of
any of its obligations under, this Agreement, any Revolving Note or any other
instrument provided for or contemplated by this Agreement.
(h) The Borrower is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System), and no
part of the proceeds of any Loan will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock or in any other manner which would involve a violation of any
of the regulations of the Board of Governors of the Federal Reserve System. The
Borrower and its Subsidiaries are primarily engaged in the business of design
and manufacture of analog/linear and mixed signal integrated circuits, modules
and non-volatile products. The Borrower is not an "investment company" nor the
"affiliate" of an "investment company", as such terms are defined in the
Investment Company Act of 1940.
(i) The Borrower and each Subsidiary of the Borrower has good and
marketable title to all assets now carried on its books, including those
reflected on its financial statements referred to in Subsection 5.01(j) or
acquired since the date of such statements, free of any mortgages, pledges,
charges, liens, security interests or other encumbrances, except as permitted
under Subsection 6.02(b). The Borrower and each Subsidiary of the Borrower
enjoys peaceful and undisturbed possession under all leases under which it is
operating, and all of such leases are valid and subsisting and in full force and
effect.
(j) The financial statements of the Borrower for the fiscal year ended
January 31, 1998 and for the fiscal quarters ended April 30, 1998, July 31, 1998
and October 31, 1998, respectively, each heretofore delivered to the Banks,
fairly present the financial condition of the Borrower as at the dates thereof
and for the periods covered thereby. The aforesaid financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the relevant periods. Neither the Borrower nor
any Subsidiary of the Borrower has any liability, contingent or otherwise, not
disclosed in the aforesaid financial statements or in any notes thereto that
could materially adversely affect the financial condition of the Borrower. The
following representations are true at the date hereof and shall be true at the
date of each Loan, in each case since the date of the most recently delivered
financial statements: (i) there has been no material adverse change in the
business, assets or condition, financial or otherwise, of the Borrower or of any
of the Subsidiaries of the Borrower; (ii) neither the business, condition or
operations of the Borrower or any of the Subsidiaries of the Borrower nor any of
their respective properties or assets have been materially adversely affected as
the result of any legislative or regulatory change, any revocation or change in
any franchise, license or right to
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do business, or any other event or occurrence, whether or not insured against;
(iii) neither the Borrower nor any of the Subsidiaries of the Borrower has
experienced any material controversy or problem with its employees or with any
labor organization; and (iv) except as previously disclosed in writing to the
Agent and the Banks, neither the Borrower nor any of the Subsidiaries of the
Borrower has entered into any material transaction other than in the ordinary
course of its business.
(k) The Borrower and each Subsidiary of the Borrower owns or has a
valid right to use the patents, patent rights or licenses, formulae, copyrights,
trademarks, trademark licenses, trademark applications, service marks, service
mark licenses, service mark applications and trade names now being used or
necessary to conduct its business. To the Borrower's knowledge, except as set
forth on Exhibit E attached hereto, the conduct of the respective businesses of
the Borrower and each of the Subsidiaries of the Borrower, as now operated, does
not conflict with valid patents, patent rights or licenses, copyrights,
trademarks, trademark licenses, service marks, service mark licenses or trade
names of others in any manner that could materially adversely affect the
business, prospects, assets or condition, financial or otherwise, of the
Borrower or any Subsidiary of the Borrower.
(1) The Borrower represents and warrants that:
(i) None of the employee benefit plans maintained at any
time by the Borrower or any ERISA Affiliate of the Borrower or the trusts
created thereunder has engaged in a prohibited transaction which could subject
any such employee benefit plan or trust to a material tax or penalty on
prohibited transactions imposed under Section 4975 of the Internal Revenue Code
or under the Employee Retirement Income Security Act of 1974, as amended
("ERISA").
(ii) None of the employee benefit plans maintained at any
time by the Borrower or any such ERISA Affiliate which are employee pension
benefit plans and which are subject to Title IV of ERISA or the trusts created
thereunder has been terminated so as to result in a material liability of the
Borrower or any such ERISA Affiliate under ERISA nor has any such employee
benefit plan of the Borrower or any such ERISA Affiliate incurred any material
liability to the Pension Benefit Guaranty Corporation ("PBGC") established
pursuant to ERISA; neither the Borrower nor any such ERISA Affiliate has
withdrawn from or caused a partial withdrawal to occur with respect to any
Multi-employer Plan resulting in any assessed and unpaid withdrawal liability;
the Borrower and each such ERISA Affiliate has made or provided for all
contributions to all such employee pension benefit plans which they maintain and
which are required as of the end of the most recent fiscal year under each such
plan; neither the Borrower nor any such ERISA Affiliate has incurred any
accumulated funding deficiency with respect to any such plan, whether or not
waived; nor has there been any reportable event, or other event or condition,
which presents a material risk of termination of such employee benefit plan by
the PBGC.
(iii) The present value of all vested accrued benefits
under the employee pension benefit plans which are subject to Title IV of ERISA
maintained by the Borrower or any such ERISA Affiliate did not, as of the most
recent valuation date for each such plan, exceed the then current value of the
assets of such employee benefit plans allocable to such benefits.
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(iv) The consummation of the Loans and the issuance of the
letters of credit provided for in Article II will not involve any prohibited
transaction under ERISA which is not subject to a statutory or administrative
exemption.
(v) Each employee pension benefit plan subject to Title
IV of ERISA maintained by the Borrower or any such ERISA Affiliate has been
maintained in accordance with its terms in all material respects and is in
compliance in all material respects with all applicable requirements of ERISA
and other applicable laws, regulations and rules.
(vi) There has been no material withdrawal liability
incurred and unpaid with respect to any Multi-employer Plan to which the
Borrower or any such ERISA Affiliate is or was a contributor.
(vii) As used in this Agreement, the terms "employee
benefit plan", "employee pension benefit plan", "accumulated funding
deficiency", "reportable event" and "accrued benefits" shall have the respective
meanings assigned to them in ERISA, and the term "prohibited transaction" shall
have the meaning assigned to it in Section 4975 of the Internal Revenue Code and
ERISA.
(viii) Neither the Borrower nor any such ERISA Affiliate has
any liability not disclosed on any of the financial statements furnished to the
Banks pursuant to Subsection 5.01(j) hereof, contingent or otherwise, under any
plan or program or the equivalent for unfunded post-retirement benefits,
including pension, medical and death benefits, which liability could have a
material adverse effect on the Borrower or any such ERISA Affiliate.
(m) The chief executive office and principal place of business of the
Borrower is located at 7 Continental Boulevard, Merrimack, NH 03054.
(n) None of the officers or key employees of the Borrower or of any
Subsidiary of the Borrower is subject to any agreement in favor of anyone other
than the Borrower or such Subsidiary, as the case may be, which limits or
restricts that person's right to engage in the type of business activity
conducted or proposed to be conducted by the Borrower or such Subsidiary, as the
case may be, or to use therein any property or confidential information or which
grants to anyone other than the Borrower or such Subsidiary, as the case may be,
any rights in any inventions or other ideas susceptible to legal protection
developed or conceived by any such officer or key employee.
(o) Neither the Borrower nor any Subsidiary of the Borrower is now a
party to any contract or agreement, the terms of which now have or, as far as
can be reasonably foreseen, would be reasonably likely to have a material
adverse effect on the financial condition, business, prospects or properties of
the Borrower or such Subsidiary, as the case may be.
(p) Neither this Agreement, nor the financial statements referred to
herein, nor any certificate delivered pursuant to this Agreement, nor any other
agreement, document, certificate or statement furnished to any Bank or to the
Agent by or on behalf of the Borrower in connection
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<PAGE> 35
with the transactions contemplated by this Agreement contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading.
(q) As of the date hereof, there does not exist any Default or Event of
Default hereunder.
(r) Except as set forth on Exhibit F attached hereto, the Borrower and
each Subsidiary of the Borrower is in compliance with all applicable
Environmental Laws in all material respects. Except as set forth on Exhibit F
attached hereto, neither the Borrower nor any Subsidiary of the Borrower has
been notified of any action, suit, proceeding or investigation which calls into
question compliance by the Borrower or any such Subsidiary with any
Environmental Laws or which seeks to suspend, revoke or terminate any license,
permit or approval necessary for the generation, handling, storage, treatment or
disposal of any Hazardous Material.
(s) Neither the Borrower nor any Subsidiary of the Borrower is engaged
in and none of them has engaged in any course of conduct that could subject any
of their respective properties to any lien, seizure or other forfeiture under
any criminal law, racketeer influenced and corrupt organizations law, civil or
criminal, or other similar laws.
(t) The Borrower and each Subsidiary of the Borrower is in compliance
in all material respects with all applicable laws, rules and regulations
pertaining to labor or employment matters, including, without limitation, those
pertaining to wages, hours, working conditions, benefits, occupational safety
and taxation and there is neither pending or threatened any material litigation,
administrative proceeding nor, to the knowledge of the Borrower, any
investigation, in respect of any such matters which could reasonably be expected
to have a material adverse effect on the Borrower.
(u) The Borrower, including the Borrower's Benchmarq operations, has
completed an assessment of all computer-based software and hardware to ensure
Year 2000 compliance. Certain non-Year 2000 compliant systems and software are
being modified, scrapped or replaced. In addition, the Borrower has begun
replacement of certain business systems with a Year 2000 compliant enterprise
resource planning system ("ERP system") in order to improve reporting and
productivity. Formal communications have been established with all significant
vendors to determine the extent to which the Borrower could be impacted by third
parties' failure to remediate their own Year 2000 issues. The Borrower is
currently unaware of any Year 2000 issues at the Borrower or a third party that
will not be compliant in a timely manner and could result in a material effect
on the Borrower's business, results of operations or financial condition. Year
2000 project expenditures, excluding capitalized costs associated with the ERP
system, have been immaterial to date and are not anticipated to exceed $1.0
million. The Borrower's Year 2000 project is expected to be substantially
completed by June, 1999. The Borrower will, at the request of the Agent or any
Bank, provide such reports and other information as the Agent or any Bank, as
the case may be, may reasonably request in order to evidence Year 2000
compliance.
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ARTICLE VI
COVENANTS OF THE BORROWER
Section 6.01. Affirmative Covenants Other Than Reporting Requirements.
Without limiting any other covenants and provisions hereof or of any of the
other Loan Documents, the Borrower hereby covenants and agrees that so long as
any Commitment is in effect or any Loan is outstanding or any other obligation
of the Borrower to any Bank and/or the Agent remains unpaid or any letter of
credit issued by Fleet for the account of the Borrower is outstanding:
(a) (Payment of Loans) The Borrower will pay the principal of and
interest on each of the Revolving Notes at the times and place and in the manner
provided for in the Revolving Notes and herein, and will promptly pay when due
any and all other amounts owing to any Bank and/or the Agent, in respect of fees
or otherwise.
(b) (Taxes and Other Obligations) The Borrower will pay and discharge
(and will cause each of its Subsidiaries to pay and discharge) all taxes,
assessments and governmental charges or levies imposed upon it or them, or upon
its or their income or profits, or upon any properties belonging to it or them,
prior to the date on which penalties or interest would attach thereto, and all
lawful claims which, if unpaid, might become a lien or charge upon any
properties of the Borrower or any Subsidiary of the Borrower; provided that
neither the Borrower nor any such Subsidiary shall be required to pay any such
tax, assessment, charge, levy or claim which is being contested in good faith
and by proper proceedings which serve as a matter of law to stay the enforcement
of the remedies of the taxing authority or claimant and as to which the Borrower
or the Subsidiary concerned, as the case may be, shall have set aside on its
books and maintains adequate reserves. The Borrower will pay (and will cause
each of its Subsidiaries to pay) in a timely manner all material lease
obligations, material trade debt and purchase money obligations, other than any
such lease obligations, trade debt or purchase money obligations which the
Borrower or the relevant Subsidiary (as the case may be) is contesting in good
faith, with adequate reserves having been established and maintained, under
circumstances in which no material asset or interest of the Borrower or such
Subsidiary could be jeopardized. The Borrower will fully, faithfully and
punctually perform and fulfill (and will cause each of its Subsidiaries fully,
faithfully and punctually to perform and fulfill) all material covenants and
agreements under any leases of real estate, agreements relating to purchase
money debt, equipment leases and other material contracts, other than any such
covenants and agreements which the Borrower or the relevant Subsidiary (as the
case may be) is contesting in good faith, with adequate reserves having been
established and maintained, under circumstances in which no material asset or
interest of the Borrower or such Subsidiary could be jeopardized.
(c) (Insurance) The Borrower will maintain (and will cause each of its
Subsidiaries to maintain), with financially sound and reputable insurers,
insurance with respect to its property and business against such liabilities,
casualties and contingencies and of such types and in such amounts as shall be
reasonably satisfactory to the Agent from time to time and in any event all such
insurance as may from time to time be customary for companies conducting a
business similar to that of the Borrower in similar locales. The Borrower will
provide to the Agent (not less frequently than annually) certificates of such
insurance.
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(d) (Legal Existence and Qualification) The Borrower will preserve and
maintain (and will cause each of its Subsidiaries to preserve and maintain) its
corporate existence, rights, franchises and privileges and remain in good
standing in the jurisdiction of its incorporation. The Borrower will qualify and
remain qualified and in good standing (and will cause each of its Subsidiaries
to qualify and remain qualified and in good standing) in each other jurisdiction
in which it maintains a plant, warehouse or office and in each other
jurisdiction in which the failure so to qualify (singly or in the aggregate with
all other such failures) could have a material adverse effect on the business,
prospects, condition or operations of the Borrower.
(e) (Compliance with Laws) The Borrower will comply (and will cause
each of its Subsidiaries to comply) with the requirements of all applicable laws
(including, without limitation, laws relating to environmental protection),
rules, regulations and the orders of any court or other tribunal or governmental
or administrative authority or agency applicable to it or to its business,
property or assets, all to the extent that failure to comply with any such laws,
rules, regulations or orders could, singly or in the aggregate with all other
such failures, have a material adverse effect on the business, prospects,
condition or operations of the Borrower. The Borrower will obtain and maintain
(and will cause each of its Subsidiaries to obtain and maintain) all licenses,
permits and permissions relating to its properties or business, failure to
obtain or maintain which could, singly or in the aggregate with all other such
failures, have a material adverse effect on the business, prospects, condition
or operations of the Borrower or any such Subsidiary.
(f) (Inspection) The Borrower will permit (and will cause each of its
Subsidiaries to permit) the Agent or any Bank, and any agents or representatives
thereof, to visit the properties of the Borrower and each such Subsidiary, and
to examine and make copies of and take abstracts from the records and books of
account of the Borrower and each such Subsidiary, and to discuss the affairs,
finances and accounts of the Borrower and any such Subsidiary with any of their
respective officers and independent accountants and with such other persons as
may be designated by such officers, all of whom are hereby authorized and
directed to cooperate with the Agent or such Bank, as the case may be, in
carrying out the intent of this Subsection 6.01(f). As long as no Event of
Default has occurred and is continuing, any visitation and/or examination under
this Subsection 6.01(f) will be made only at reasonable times upon reasonable
prior notice and will be conducted in such manner as not to unreasonably
interfere with the conduct of the Borrower's business.
(g) (Books and Records) The Borrower will keep proper and complete
records and books of account in which complete entries will be made in
accordance with generally accepted accounting principles consistently applied,
reflecting all financial transactions of the Borrower and its Subsidiaries. All
financial statements submitted to the Agent or to any Bank under this Agreement
will be prepared in accordance with generally accepted accounting principles
consistently applied, except that interim statements may be subject to normal
year-end audit adjustment and to the absence of footnotes.
(h) (Maintenance of Properties) The Borrower will maintain and preserve
(and will cause each of its Subsidiaries to maintain and preserve) all of their
respective properties
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necessary or useful in the proper conduct of their respective businesses in good
working order and condition, making all necessary repairs thereto and
replacements thereof.
(i) (Management) The Borrower will maintain experienced and competent
professional senior management with respect to its business and properties.
(j) (Continuation of Business) The Borrower will continue to conduct
(and will cause each of its Subsidiaries to continue to conduct) in the ordinary
course, the business in which each of them is presently engaged. Neither the
Borrower nor any of the Subsidiaries of the Borrower will, without the prior
written consent of the Agent, directly or indirectly enter into any lines of
business, businesses or ventures outside the areas of design and manufacture of
analog/linear and mixed signal integrated circuits, modules and non-volatile
products.
(k) (Bank Accounts) The Borrower will maintain its principal bank
accounts with the Agent.
(l) (Environmental Clean-Up) If the Borrower or any Subsidiary shall
receive notice from any governmental authority that the Borrower or such
Subsidiary has violated any applicable Environmental Law, the Borrower shall to
the extent required by law (and in any event within the time period permitted by
the applicable governmental authority) remove or remedy, or cause the applicable
Subsidiary to remove or remedy, such violation.
(m) (Indemnification) The Borrower hereby agrees to defend, indemnify
and hold the Agent and each Bank harmless from and against any and all claims,
losses, liabilities, damages and expenses (including, without limitation,
clean-up costs and reasonable attorneys' fees) arising directly or indirectly
from, out of or by reason of the handling, storage, treatment, emission or
disposal of any Hazardous Material by or in respect of the Borrower or any
Subsidiary of the Borrower or any property owned or leased or operated by the
Borrower or any Subsidiary; provided, however, that nothing contained herein
will be deemed to entitle any Bank or the Agent to indemnification against any
claims, losses, liabilities, damages or expenses arising out of such Person's
gross negligence or willful misconduct. The provisions of this Subsection
6.01(m) shall survive repayment of the Loans, occurrence of the Revolving
Expiration Date and the expiration or termination of this Agreement.
(n) (ERISA Requirement) The Borrower will comply in all material
respects with all requirements of ERISA applicable to it and furnish to the
Agent as soon as possible and in any event (i) within 30 days after the Borrower
knows or has reason to know that any reportable event with respect to any
employee benefit plan subject to Title IV of ERISA maintained by the Borrower or
any ERISA Affiliate of the Borrower which could reasonably be expected to give
rise to termination or the imposition of any material tax or penalty has
occurred, a written statement of the Borrower describing in reasonable detail
such reportable event and any action which the Borrower or the applicable ERISA
Affiliate proposes to take with respect thereto, together with a copy of the
notice of such reportable event given to the PBGC, (ii) promptly after receipt
thereof, a copy of any notice that the Borrower or any ERISA Affiliate may
receive from the PBGC relating to the intention of the PBGC to terminate any
employee benefit plan or plans of the Borrower or any such ERISA Affiliate or to
appoint a trustee to administer any such plan,
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and (iii) within 10 days after a filing with the PBGC pursuant to Section 412(n)
of the Internal Revenue Code of a notice of failure to make a required
installment or other payment with respect to a plan, a certificate of an
authorized officer of the Borrower setting forth details as to such failure and
the action that the Borrower or the affected ERISA Affiliate, as applicable,
proposes to take with respect thereto, together with a copy of such notice given
to the PBGC.
(o) (Use of Proceeds) The Borrower will use the proceeds of the Loans
solely for the purposes specified in Section 3.03 hereof.
(p) (Material Subsidiaries; Subsidiary Guaranties) Within 10 days of
the acquisition or creation of any Material Subsidiary or of any existing
Subsidiary becoming a Material Subsidiary, the Borrower will cause to be
delivered to the Agent each of the following:
(i) A guaranty (a "Subsidiary Guaranty") in form and substance
satisfactory to the Agent pursuant to which such Material Subsidiary
shall guaranty the obligations of the Borrower under this Agreement and
the Revolving Notes;
(ii) An opinion of counsel to the relevant Subsidiary dated as
of the date of delivery of the instrument provided for in the foregoing
clause (i) and addressed to the Agent and the Banks, in form and
substance reasonably acceptable to the Agent, to the effect that:
(A) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
organization, has the requisite power and authority to own its
properties and conduct its business as then owned and then
proposed to be conducted and has the requisite power and
authority to execute and deliver its respective Subsidiary
Guaranty and to perform all of its obligations thereunder; and
(B) the execution, delivery and performance of the
Subsidiary Guaranty have been duly authorized by all requisite
corporate action (including any required shareholder approval)
on the part of such Subsidiary, such Subsidiary Guaranty has
been duly executed and delivered by such Subsidiary and same
constitutes the legal, valid and binding obligation of such
Subsidiary, enforceable against such Subsidiary in accordance
with its terms; and
(iii) Current copies of the Charter documents, including a
partnership agreement and certificate of limited partnership, if
applicable, and by-laws of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners or appropriate committees (and, if required by such
Charter documents, by-laws or by applicable laws, of the shareholders
or partners) of such Subsidiary authorizing the actions and the
execution and delivery of the documents described above in this
Subsection, together with evidence satisfactory to the Agent that such
Subsidiary is solvent as of such date and after giving effect to its
execution of its Subsidiary Guaranty.
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The Borrower covenants and agrees that on or prior to April 19, 1999 it
will obtain and deliver to the Agent (with a copy to each Bank) a Subsidiary
Guaranty from Benchmarq, together with the opinion, certificates and other
material described above in this Subsection 6.01(p). The Borrower represents and
warrants that, as of the date of this Agreement, the Borrower has no Material
Subsidiary other than Benchmarq.
(q) (Consolidated Leverage Ratio) As used herein, the term
"Determination Date" means the last day of each fiscal quarter of the Borrower,
commencing with its results as at January 31, 1999. The Borrower will maintain
on a consolidated basis, as at each Determination Date, a Consolidated Leverage
Ratio of not more than 1.5 to 1.
(r) (Interest Coverage) The Borrower will maintain, as at each
Determination Date, a Consolidated Interest Coverage Ratio of not less than 2.5
to 1. The Consolidated Interest Coverage Ratio as at each Determination Date
will be determined on the basis of the Consolidated Cash Flow achieved during
the 12-month period ended at such Determination Date and the Consolidated
Interest Expense for such 12-month period ended at such Determination Date.
(s) (Capital Base) The Borrower will maintain, as at each Determination
Date, a Consolidated Capital Base which shall not be less than the
then-effective TCB Requirement. As used herein, the "TCB Requirement" deemed to
have been in effect as at January 31, 1999 shall be $160,000,000. As at each
subsequent Determination Date (commencing with April 30, 1999), the TCB
Requirement will be equal to the sum of: (1) that TCB Requirement which had been
in effect as at the immediately preceding Determination Date, plus (2) 75% of
the quarterly Consolidated Net Income of the Borrower and Subsidiaries for the
fiscal quarter ending with the then current Determination Date (but without
giving effect to any such quarterly Consolidated Net Income which is less than
zero for any fiscal quarter), plus (3) 75% of the proceeds of any equity
securities sold (not including, for this purpose, consideration (up to an
aggregate of $7,000,000 per fiscal year) received by the Borrower in respect of
the exercise of employee stock options) by the Borrower during the fiscal
quarter ending at such Determination Date and 75% of the proceeds of any
Subordinated Debt issued by the Borrower and/or its Subsidiaries during the
fiscal quarter ending at such Determination Date (nothing contained herein being
deemed to approve the issuance of any such Subordinated Debt).
Section 6.02. Negative Covenants. Without limiting any other covenants
and provisions hereof or of any of the other Loan Documents, the Borrower hereby
covenants and agrees that, so long as any Commitment is in effect or any Loan is
outstanding or any other obligation of the Borrower to any Bank and/or the Agent
remains unpaid or any letter of credit issued by Fleet for the account of the
Borrower is outstanding:
(a) (Indebtedness) The Borrower will not create, incur, assume or
suffer to exist (nor will the Borrower permit any of its Subsidiaries to create,
incur, assume or suffer to exist) any Indebtedness, except for:
(i) Indebtedness owed hereunder to any Bank or to the Agent,
including without limitation, the Indebtedness represented by the
Revolving Notes;
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(ii) Indebtedness of the Borrower or any such Subsidiary for
taxes, assessments and governmental charges or levies, to the extent
payment thereof shall not at the time be required under Subsection
6.01(b) above;
(iii) unsecured current liabilities of the Borrower or any such
Subsidiary (other than for money borrowed or for the deferred purchase
price of property) incurred upon customary terms in the ordinary course
of business and unsecured advances or progress payments under contracts
incurred on customary terms in the ordinary course of business;
(iv) purchase money Indebtedness and Capital Lease financing
owed to vendors or lessors of equipment used in the business of the
Borrower or any such Subsidiaries; provided that the purchase money
Indebtedness and Capital Lease financing permitted under this clause
(iv) will never exceed $5,000,000 in aggregate principal amount
outstanding at any one time;
(v) other Indebtedness existing at the date hereof, but only
to the extent set forth on Exhibit G hereto;
(vi) Subordinated Debt incurred after the date hereof on terms
acceptable to the Required Banks in an aggregate amount not to exceed
$5,000,000;
(vii) existing guaranties expressly permitted pursuant to
Subsection 6.02(c) below; and
(viii) liability arising out of interest rate swaps, currency
exchange contracts and other similar products for protection against
fluctuations in interest rates and/or currency exchange rates; provided
that the aggregate notional amounts for all interest rate swaps, and
other interest rate protection products will not exceed $3,000,000 and
the aggregate notional amounts for all currency exchange contracts will
not exceed $10,000,000.
(b) (Liens) The Borrower will not create, incur, assume or suffer to
exist (nor will the Borrower permit any of its Subsidiaries to create, incur,
assume or suffer to exist) any mortgage, deed of trust, pledge, lien, security
interest or other charge or encumbrance (including the lien or retained security
title of a conditional vendor) of any nature (collectively, "liens") upon or
with respect to any of its property or assets, now owned or hereafter acquired,
except that the foregoing restrictions shall not apply to:
(i) liens for taxes, assessments or governmental charges or
levies on property of the Borrower or any of such Subsidiaries if the
same shall not at the time be delinquent or thereafter can be paid
without interest or penalty or are being contested in good faith and by
appropriate proceedings which serve as a matter of law to stay the
enforcement of any remedies of the taxing authorities and as to which
adequate reserves have been made and are maintained;
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(ii) liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary
course of business for sums not yet due or which are being contested in
good faith and by appropriate proceedings which serve as a matter of
law to stay the enforcement thereof and as to which adequate reserves
have been made and are maintained;
(iii) pledges or deposits under workmen's compensation laws,
unemployment insurance, social security, retirement benefits or similar
legislation;
(iv) liens existing on the date hereof to the extent listed on
Exhibit G hereto;
(v) liens securing the performance of bids, tenders, statutory
obligations and surety bonds arising in the ordinary course of business
and not involving the repayment of borrowed money;
(vi) zoning restrictions, easements and rights or restrictions
of record on the use of real property which do not materially detract
from its value or impair its use; and
(vii) Capital Leases and liens securing the purchase price of
property (to the extent such Capital Leases and purchase money
financing are permitted by clause (iv) of Subsection 6.02(a) above),
provided that each such lien is given solely to secure the purchase
price of (or lease payments in respect of) such property, does not
extend to any other property and is given at the time of the
acquisition of such property.
(c) (Guaranties) The Borrower will not assume, guarantee, endorse or
otherwise become directly or contingently liable (nor will the Borrower permit
any of its Subsidiaries to assume, guarantee, endorse or otherwise become
directly or contingently liable), including, without limitation, liable by way
of agreement, contingent or otherwise, to purchase, to provide funds for
payment, to supply funds to or otherwise invest in any debtor or otherwise to
assure any creditor against loss, in connection with any Indebtedness of any
other Person, except (i) guaranties by endorsement for deposit or collection in
the ordinary course of business, (ii) any guaranty in favor of the Agent for the
benefit of the Banks and (iii) existing guaranties described on Exhibit H
hereto.
(d) (Mergers, Dispositions, etc.) The Borrower will not merge or
consolidate with any other Person, except that the Borrower may merge with any
other Person which is a wholly-owned Subsidiary of the Borrower at the date of
this Agreement or which is acquired hereafter by the Borrower pursuant to a
Permitted Acquisition; provided that, in each such case, (i) the Borrower is the
surviving corporation, (ii) such merger does not result in any material change
in the executive officers of the Borrower, (iii) if made pursuant to an
Acquisition, such merger does not result in the issuance of capital stock of the
Borrower in such amount so that the former stockholders of the acquired company
would receive shares of any class of voting stock of the Borrower aggregating
more than 25% of the total number of shares of such class of stock outstanding
immediately after such merger and (iv) at the time of such merger there is, and
after giving effect thereto there would be, no violation of any of the financial
tests set forth in any of Subsections 6.01(q), 6.01(r) or 6.01(s). Compliance
with each of the financial tests described in
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clause (iv) of the immediately preceding sentence will be determined on a pro
forma basis based on the Borrower's financial position as at the end of its most
recently completed fiscal quarter and giving effect to such merger on a pro
forma basis as if same had occurred at such fiscal quarter-end. The Borrower
will not liquidate or dissolve or sell, assign, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) any item or items
material to its business (whether now owned or hereafter acquired) included in
the assets of the Borrower (nor will the Borrower permit any of its Subsidiaries
to do any of the foregoing), except that the Borrower and its Subsidiaries may
sell or dispose of property through (i) sales of inventory in the ordinary
course of business, (ii) disposal of worn out or obsolete equipment in the
ordinary course of business, (iii) sale or disposal of any of the property
described on Exhibit I hereof and (iv) sale or disposal in any one fiscal year
of other items with a book value aggregating not more than $1,000,000.
(e) (No Factoring) The Borrower will not sell, assign, factor or
dispose in any way of any of its receivables or other rights to payment, with or
without recourse, except for assignment for collection in the ordinary course of
business, nor will the Borrower permit any of its Subsidiaries to do any of the
foregoing.
(f) (Loans and Advances) The Borrower will not make or maintain, nor
permit any of its Subsidiaries to make or maintain, any loan or advance to any
Person, including, without limitation, the Borrower's directors, officers and
employees, except travel advances, advances against salary and loans hereafter
made to employees in the ordinary course (all of which loans and advances
described in this clause shall not exceed $500,000 in the aggregate outstanding
at any one time).
(g) (Investments and Acquisitions) The Borrower will not, without the
Agent's prior written consent, invest in, hold or purchase any stock or
securities of any Person (nor will the Borrower permit any of its Subsidiaries
to invest in, hold or purchase any such stock or securities) except (i) readily
marketable direct obligations of, or obligations guaranteed by, the United
States of America or any agency thereof, (ii) other investment grade debt
securities, (iii) mutual funds, the assets of which are primarily invested in
items of the kind described in the foregoing clauses (i) and (ii) of this
Subsection 6.02(g), (iv) deposits with or certificates of deposit issued by the
Agent and any other obligations of the Agent or the Agent's parent, (v) deposits
in any other bank organized in the United States having capital in excess of
$100,000,000, (vi) other short-term investments consistent with the Borrower's
investment policy, a copy of which is attached hereto as Exhibit J hereto, (vii)
other existing investments of the Borrower described on Exhibit K hereto, (viii)
investments made by the Borrower pursuant to employee incentive plans pending
disbursement to participating employees, (ix) minority investments for strategic
purposes in Persons (other than Subsidiaries) who supply goods and/or services
to the Borrower or who are in the same line of business as the Borrower;
provided that, in any event, the aggregate amount so invested by the Borrower
during the term of this Agreement will not exceed $25,000,000; and (x)
investments in any Subsidiaries now existing or hereafter created by the
Borrower pursuant to this Subsection 6.02(g); provided that in any event the
tangible net worth of the Borrower alone (exclusive of its investment in
Subsidiaries and any debt owed by any Subsidiary to the Borrower) will not be
less than 80% of the Consolidated Tangible Net Worth of the Borrower and
Subsidiaries. The Borrower agrees that it will give the
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Agent prompt written notice if it forms or acquires any Subsidiary. Exhibit K
hereto sets forth, inter alia, all investments by the Borrower in Subsidiaries
existing at the date hereof. Without limitation of the foregoing, the Borrower
will not make any Acquisition other than Permitted Acquisitions. Nothing
contained in this Subsection 6.02(g) shall permit the Borrower to use, directly
or indirectly, proceeds of any Loan for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying any "margin stock" within the
meaning of Regulation U.
(h) (ERISA) The Borrower will not establish (nor will the Borrower
permit any of its Subsidiaries to establish) any new pension or defined benefit
plan or modify any such existing plan for employees subject to ERISA, which plan
provides any benefits based on past service without the advance consent of the
Banks to the amount of the aggregate past service liability thereby created.
(i) (No Waiver) The Borrower will not waive (nor permit any of its
Subsidiaries to waive) any material debt or claim, except in the ordinary course
of its business.
(j) (Subordinated Debt) The Borrower will not make, directly or
indirectly, any optional or voluntary prepayment or purchase of Subordinated
Debt or any long-term debt owed to any Person (other than the Banks), nor make
any payment of any Subordinated Debt except to the extent expressly permitted in
the subordination agreement relating thereto. The Borrower will not at any time
make any payment on account of principal of and/or interest on any Subordinated
Debt unless there has not occurred (and after giving effect to any such payment
of principal and/or interest there will not have occurred) any event which
constitutes, or which, with notice or lapse of time or both, could constitute,
an Event of Default.
(k) (Principal Place of Business) The Borrower will not move its chief
executive office or principal place of business from the address described in
Subsection 5.01(m) nor change its name, corporate form or legal structure unless
prompt written notice of same is given to the Agent.
(l) (Dividends) The Borrower will not, without the prior written
consent of the Agent, declare or pay any dividends (other than dividends payable
in capital stock of the Borrower), purchase, redeem, retire or otherwise acquire
for value any of its capital stock (or rights, options or warrants to purchase
such shares) now or hereafter outstanding, return any capital to its
stockholders or make any distribution of assets to its stockholders.
Notwithstanding the foregoing, however, the Borrower may, without being deemed
to be in violation of this Subsection 6.02(l), from time to time repurchase
shares of its capital stock as authorized by its Board of Directors; provided
that at the date of each such repurchase and after giving effect thereto there
does not exist, and there would not result therefrom, any Default or Event of
Default, with compliance with each of Subsections 6.01(q), 6.01(r) and 6.01(s)
being determined for this purpose both as at the then most recent fiscal
quarter-end and (on a pro forma basis) as at the date of such repurchase, even
if not a fiscal quarter-end.
(m) (Partnerships) Neither the Borrower nor any of its Subsidiaries
will become a member of any partnership or joint venture if the result of such
partnership or joint venture is that any Person which is not the Borrower or the
Subsidiary concerned has the ability to incur any
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<PAGE> 45
Indebtedness on behalf of the Borrower or such Subsidiary or to commit any
assets of the Borrower or such Subsidiary without the consent of the Borrower or
such Subsidiary, as the case may be.
(n) (Affiliate Transactions) The Borrower will not, without the prior
written consent of the Agent, enter into (nor permit any of its Subsidiaries to
enter into) any transaction, including, without limitation, the purchase, sale
or exchange of any property or the rendering of any service, with any Affiliate,
except in the ordinary course of business and pursuant to the reasonable
requirements of its business and upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary, as the case may be, than would be
obtained in a comparable arms'-length transaction with any Person not an
Affiliate; provided that nothing in this Subsection 6.02(n) shall be deemed to
prohibit the payment of salary or other similar payments to any officer or
director of the Borrower at a level consistent with the salary and other
payments being paid at the date of this Agreement and heretofore disclosed in
writing to the Bank, nor to prevent the hiring of additional officers at a
salary level consistent with industry practice, nor to prevent reasonable
periodic increases in salary, nor to prevent the Borrower from making payments
pursuant to any of the severance agreements with its officers described in the
Borrower's 1998 proxy statement. As used herein, "Affiliate" of any entity
includes (i) any present or former officer or director of such entity, (ii) any
Person which, directly or indirectly, through one or more intermediaries,
controls or is controlled by or is under common control with such entity, (iii)
any Person which owns, of record and/or beneficially, 5% or more of any class of
equity securities of such entity, and (iv) any member of the immediate family of
any of the foregoing. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of any Person, whether through the ownership of voting securities, by
contract or otherwise.
(o) (Hazardous Materials) Except as expressly provided below in this
Subsection 6.02(o), the Borrower will not dispose of or suffer or permit to
exist any hazardous material or oil on any site or vessel owned, occupied or
operated by the Borrower or any Subsidiary of the Borrower, nor shall the
Borrower store (nor permit any Subsidiary to store) on any site or vessel owned,
occupied or operated by the Borrower or any such Subsidiary, or transport or
arrange the transport of, any hazardous material or oil (the terms "hazardous
material", "oil", "site" and "vessel", respectively, being used herein with the
meanings given those terms in Mass. Gen. Laws, Ch. 21E or any comparable terms
in any comparable statute in effect in any other relevant jurisdiction). The
Borrower shall provide the Bank with written notice of (i) the intended storage
or transport of any hazardous material or oil by the Borrower or any Subsidiary
of the Borrower, (ii) any known release or known threat of release of any
hazardous material or oil at or from any site or vessel owned, occupied or
operated by the Borrower or any Subsidiary of the Borrower, and (iii) any
incurrence of any expense or loss by any government or governmental authority in
connection with the assessment, containment or removal of any hazardous material
or oil for which expense or loss the Borrower or any Subsidiary of the Borrower
may be liable. Notwithstanding the foregoing, the Borrower and its Subsidiaries
may use, store and transport, and need not notify the Bank of the use, storage
or transportation of, (x) oil in reasonable quantities, as fuel for heating of
their respective facilities or for vehicles or machinery used in the ordinary
course of their respective businesses and (y) hazardous materials that are
solvents, cleaning agents or other materials used in the ordinary course of the
respective business
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operations of the Borrower and its Subsidiaries, in reasonable quantities, as
long as in any case the Borrower or the Subsidiary concerned (as the case may
be) has obtained and maintains in effect any necessary governmental permits,
licenses and approvals, complies with all requirements of applicable federal,
state and local law relating to such use, storage or transportation, follows the
protective and safety procedures that a prudent businessperson conducting a
business the same as or similar to that of the Borrower or such Subsidiary (as
the case may be) would follow, and disposes of such materials (not consumed in
the ordinary course) only through licensed providers of hazardous waste removal
services.
(p) (Stock Ownership) The Borrower will not suffer or permit to exist
any circumstance in which it does not hold 100% of the voting stock of each of
its Subsidiaries.
(q) (Change of Fiscal Year, etc.) The Borrower will not change its
fiscal year or, in any material respect, its accounting principles or methods of
applying same. If any accounting treatment or classification is for any reason
changed as to the accounts of the Borrower and/or any of its Subsidiaries, the
Borrower will forthwith notify the Agent of same in writing and will execute and
deliver such amendments to this Agreement as the Agent may reasonably deem
necessary or desirable in order to preserve unimpaired the rights of the Banks
and the obligations of the Borrower under this Agreement.
(r) (Capital Expenditures) As used herein, the "CapEx Limit" for each
of the Borrower's fiscal years ending January 31, 2000 and January 31, 2001 is
$25,000,000; and for each subsequent fiscal year of the Borrower the CapEx Limit
will be $30,000,000. The aggregate Capital Expenditures of the Borrower and its
Subsidiaries for each of its fiscal years (commencing with the fiscal year
ending January 31, 2000) will not exceed the CapEx Limit for such fiscal year;
provided that if the actual Capital Expenditures of the Borrower and its
Subsidiaries for any such fiscal year are less than the CapEx Limit for such
fiscal year, the amount by which such CapEx Limit exceeds such actual Capital
Expenditures may be carried over by the Borrower and used in any subsequent
fiscal year or years.
(s) (No Margin Stock) No proceeds of any Loan shall be used directly or
indirectly to purchase or carry any margin stock.
Section 6.03. Reporting Requirements. The Borrower agrees that so long
as any Loan shall be outstanding or any other obligation of the Borrower to any
Bank and/or the Agent shall remain unpaid or any letter of credit issued
hereunder is outstanding or any Commitment remains in effect hereunder, the
Borrower shall furnish or cause to be furnished to each Bank:
(a) As soon as available, and in any event within 90 days after the end
of each fiscal year of the Borrower, a copy of the annual financial statements
for such fiscal year for the Borrower, including therein consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as at the end
of such fiscal year and consolidated and consolidating statements of income,
stockholders' equity and cash flow for the Borrower and its Subsidiaries for
such fiscal year. The annual consolidated statements of the Borrower shall be
certified by independent certified public accountants selected by the Borrower
and reasonably acceptable to the Agent (the Agent hereby agreeing that
PricewaterhouseCoopers is acceptable for this purpose), such
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certification to be in such form as is generally recognized as "unqualified".
The audited consolidated annual financial statements submitted under this
Subsection shall be accompanied by a statement of the independent certified
public accountants stating whether in the course of their examination (which
shall include a review of this Agreement) they became aware of the existence as
at the end of the fiscal year covered by such financial statements of any event,
transaction, occurrence or state of affairs which would contravene or violate
any of the financial covenants contained in this Agreement and, if their
examination has disclosed any such event, transaction, occurrence or state of
affairs, specifying the nature and period of the existence thereof. Such
accountants' statement shall also include a schedule setting forth the
computations necessary to determine compliance, as at the relevant fiscal
year-end, with each of Subsections 6.01(q), (r), and (s) and Subsection 6.02(r).
In addition, within 60 days after the commencement of each fiscal year of the
Borrower, the Borrower will provide to each Bank a budget for such fiscal year,
prepared by the Borrower's management and approved by the Borrower's Board of
Directors.
(b) Within 45 days after the end of each fiscal quarter of the
Borrower, consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries and related consolidated and consolidating statements of income and
cash flow, unaudited but complete and accurate and prepared in accordance with
generally accepted accounting principles consistently applied fairly presenting
the financial condition of the Borrower as at the dates thereof and for the
periods covered thereby (except that such quarterly statements need not contain
footnotes) and certified as accurate (subject to normal year-end audit
adjustments, which shall not be material) by the chief financial officer of the
Borrower, such balance sheets to be as at the end of such fiscal quarter and
such statements of income and cash flow to be for such fiscal quarter and for
the fiscal year to date.
(c) At the time of delivery of each annual or quarterly statement of
the Borrower, a certificate executed by the chief financial officer of the
Borrower stating that he or she has reviewed this Agreement and the other Loan
Documents and has no knowledge of any default by the Borrower in the performance
or observance of any of the provisions of this Agreement or of any of the other
Loan Documents or, if he or she has such knowledge, specifying each such default
and the nature thereof. Each such certificate given as at the end of any fiscal
quarter of the Borrower (including, without limitation, the fourth fiscal
quarter of each year) will also set forth the calculations necessary to evidence
compliance with each of Subsections 6.01(q), 6.01(r) and 6.01(s) and each such
certificate given as at the end of any fiscal year of the Borrower will also set
forth the calculations necessary to evidence compliance with Subsection 6.02(r).
(d) Promptly after receipt, a copy of all audits or reports submitted
to the Borrower by independent public accountants in connection with any annual,
special or interim audits of the books of the Borrower and any "management
letter" prepared by such accountants.
(e) Within five days after the occurrence of any Default or Event of
Default, the statement of the Borrower setting forth details of each such
Default or Event of Default and the action which the Borrower proposes to take
with respect thereto.
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(f) Promptly after the commencement thereof, notice of all actions,
suits and proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, to which the
Borrower or any Subsidiary of the Borrower is a party; provided, however, that
nothing contained in this clause (f) will be deemed to require the Borrower to
give notice of any such action, suit or proceeding in which only monetary
damages are sought and the amount of damages so sought is less than $500,000.
(g) Promptly upon the filing by the Borrower of any registration
statement or listing application (or any supplement or amendment to any
registration statement or listing application) (other than a registration
statement on Form S-8 or other filing which relates solely to one or more of the
Borrower's employee benefit plans) with the Securities and Exchange Commission
("SEC") or any successor agency or with any stock exchange or with the National
Association of Securities Dealers quotations system, a copy of same.
(h) A copy of each periodic or current report hereafter filed by the
Borrower with the SEC or any successor agency and each annual report, proxy
statement or press release disseminated by the Borrower and each other
communication sent to shareholders or other securityholders generally, such copy
to be provided to the Banks promptly upon such filing with the SEC or such
dissemination or such other communication, as the case may be.
(i) Promptly after the Borrower has knowledge thereof, written notice
of:
(i) termination or potential termination of any
consent, license, permit or franchise material to the conduct
of the business of the Borrower or any Subsidiary of the
Borrower or the ownership of any of their respective
properties or assets;
(ii) any material loss, damage or destruction to or of
any property or assets of the Borrower or of any of Subsidiary
of the Borrower (regardless of whether the same is covered by
insurance);
(iii) any material controversy with employees of the
Borrower or of any Subsidiary of the Borrower or with any
labor organization; and
(iv) any other material development adversely
affecting the Borrower, any of such Subsidiaries or any of
their respective businesses, prospects, properties, assets or
conditions, financial or otherwise.
(j) Promptly following the occurrence of any change in any of the
present executive officers or directors of the Borrower, all of whom are listed
on Exhibit L hereto, a notice of such change.
(k) Such other information respecting the financial condition,
operations and assets of the Borrower and/or any of its Subsidiaries as any Bank
or the Agent may from time to time reasonably request.
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ARTICLE VII
DEFAULT AND REMEDIES
Section 7.01. Events of Default. The occurrence of any of the following
events shall constitute an Event of Default under this Agreement:
(a) The Borrower shall fail to make any payment of principal of or
interest on any Revolving Note or any Loan on the date when due or shall fail to
make any payment with respect to any letter of credit when due or shall fail to
pay when due any fees or other amounts owed under this Agreement; or
(b) Any representation or warranty of the Borrower contained herein
shall at any time prove to have been incorrect in any material respect when
made; or any representation or warranty now or hereafter made by the Borrower in
connection with this Agreement or in connection with any Loan or in connection
with any letter of credit shall at any time prove to have been incorrect in any
material respect when made; or
(c) The Borrower shall default in the performance or observance of any
agreement or obligation under any of Subsections 6.01(b) (first sentence only),
6.01(c), 6.01(d) (as applies to corporate existence only), 6.01(e), 6.01(n),
6.01(o), 6.01(q), 6.01(r), or 6.01(s) or any provision of Section 6.02 or
Section 6.03; or
(d) The Borrower shall default in the performance of any other term,
covenant or agreement contained in this Agreement and such default shall
continue unremedied for 30 days after notice thereof shall have been given to
the Borrower; or
(e) Any default on the part of the Borrower shall exist, and shall
remain unwaived or uncured beyond the expiration of any applicable notice and/or
grace period, under any contract, agreement or understanding now existing or
hereafter entered into with or for the benefit of the Agent or any of the Banks
in respect of any of the Loans; or
(f) Any default shall exist and remain unwaived or uncured with respect
to any Subordinated Debt of the Borrower or with respect to any instrument
evidencing, guaranteeing, securing or otherwise relating to any such
Subordinated Debt, or any such Subordinated Debt shall not have been paid when
due, whether by acceleration or otherwise, or shall have been declared to be due
and payable prior to its stated maturity, or any event or circumstance shall
occur which permits, or with the lapse of time or the giving of notice or both
would permit, the acceleration of the maturity of any Subordinated Debt by the
holder or holders thereof; or
(g) Any default shall exist and remain unwaived or uncured with respect
to any other Indebtedness of the Borrower or of any Subsidiary of the Borrower
in a principal amount equal to or greater than $100,000, or any of the aforesaid
Indebtedness shall not have been paid when due, whether by acceleration or
otherwise, or shall have been declared to be due and payable prior its stated
maturity, or any event or circumstance shall occur which permits, or with the
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lapse of time or the giving of notice or both would permit, the acceleration of
the maturity of any such Indebtedness by the holder or holders thereof; or
(h) The Borrower shall be dissolved; or the Borrower or any Subsidiary
of the Borrower shall become insolvent or bankrupt or shall cease paying its
debts as they mature or shall make an assignment for the benefit of creditors,
or a trustee, receiver or liquidator shall be appointed for the Borrower or any
Subsidiary of the Borrower or for a substantial part of the property of any of
the foregoing, or bankruptcy, reorganization, arrangement, insolvency or similar
proceedings shall be instituted by or against the Borrower or any Subsidiary of
the Borrower under the laws of any jurisdiction (except for an involuntary
proceeding filed against the Borrower or any such Subsidiary without the
acquiescence of the Borrower or such Subsidiary, as the case may be, which is
dismissed within 60 days following the institution thereof); or
(i) Any attachment, execution or similar process shall be issued or
levied against any of the property of the Borrower or any Subsidiary of the
Borrower and such attachment, execution or similar process shall not be paid,
stayed, released, vacated or fully bonded within 10 days after its issue or
levy; or
(j) Any final uninsured judgment in excess of $1,000,000 shall be
entered against the Borrower or any Subsidiary of the Borrower by any court of
competent jurisdiction and shall remain unpaid for 30 days after entry thereof
(unless same shall then be on appeal with the enforcement thereof effectively
stayed); or
(k) The Borrower or any ERISA Affiliate of the Borrower shall fail to
meet its minimum funding requirements under ERISA with respect to any employee
benefit plan (or other class of benefit which the PBGC has elected to insure) or
any such plan shall be the subject of termination proceedings (whether voluntary
or involuntary) and there shall result from such termination proceedings a
liability of the Borrower or any ERISA Affiliate of the Borrower to the PBGC
which, in the reasonable opinion of the Agent, would be likely to have a
material adverse effect upon the business, operations or financial condition of
the Borrower; or
(l) Any Loan Document shall for any reason (other than due to payment
in full of all amounts evidenced thereby) not remain in full force and effect;
or
(m) Any Change of Control shall occur; or
(n) Any representation or warranty of any Material Subsidiary contained
in such Material Subsidiary's Subsidiary Guaranty shall at any time prove to
have been incorrect in any material respect when made or any default shall occur
under any Subsidiary Guaranty and shall continue uncured beyond the expiration
of all applicable cure periods, if any.
Section 7.02. Rights and Remedies Upon Default. Upon the occurrence
of any Event of Default and at any time thereafter, in addition to any other
rights and remedies available to the Agent and/or the Banks hereunder or
otherwise, the Agent may exercise any one or more of the following rights and
remedies (all of which shall be cumulative):
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(a) Declare the entire unpaid principal amount of each Revolving Note
and each of the Loans then outstanding, all interest accrued and unpaid with
respect to any and all of the foregoing, and all other amounts payable under or
with respect to this Agreement to be forthwith due and payable, whereupon the
same shall become forthwith due and payable, without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that upon the occurrence of any Event of Default
under Subsection 7.01(h), the Revolving Notes, all Loans and all other amounts
payable under this Agreement will automatically become due and payable without
any notice or any such declaration.
(b) Declare the Commitments to be terminated, whereupon the same and
all obligations of the Banks or any of them to make Revolving Loans and/or issue
letters of credit shall be terminated forthwith and without notice; provided,
however, that upon the occurrence of any Event of Default under Subsection
7.01(h), the Commitments will automatically terminate without any notice and
without any such declaration.
(c) Enforce the provisions of this Agreement by legal proceedings for
the specific performance of any covenant or agreement contained herein or for
the enforcement of any other appropriate legal or equitable remedy, and the
Agent may recover damages caused by any breach by the Borrower of the provisions
of this Agreement, including court costs, reasonable attorneys' fees and other
costs and expenses incurred in the enforcement of the obligations of the
Borrower hereunder.
(d) Exercise all rights and remedies under this Agreement, under the
Revolving Notes and under any other agreement with the Agent, and exercise all
other rights and remedies which the Agent may have under applicable law.
Section 7.03. Set-off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default, each Bank is hereby authorized at
any time or from time to time, without presentment, demand, protest or other
notice of any kind to the Borrower or to any other Person, all of which are
hereby expressly waived, to set off and to appropriate and apply any and all
deposits and any other Indebtedness at any time held or owing by such Bank or
any affiliate of such Bank to or for the credit or the account of the Borrower
against and on account of the obligations, liabilities and claims of the
Borrower to such Bank under this Agreement, irrespective of whether or not the
Agent or any such Bank shall have made any demand for payment and although said
obligations, liabilities or claims, or any of them, may then be contingent or
unmatured and without regard for the availability or adequacy of any collateral.
The Borrower also grants to each Bank a security interest with respect to all
its deposits and all securities or other property in the possession of such Bank
or any affiliate of such Bank from time to time in order to secure the Loans,
the Revolving Notes and all other amounts now or hereafter due under this
Agreement, and, upon the occurrence of any Event of Default, each Bank may
exercise all rights and remedies of a secured party under the Uniform Commercial
Code. ANY AND ALL RIGHTS TO REQUIRE ANY BANK TO EXERCISE ITS RIGHTS OR REMEDIES
WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES ANY OF
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THE BORROWER'S OBLIGATIONS PRIOR TO THE EXERCISE BY SUCH BANK OF ITS RIGHT OF
SET-OFF UNDER THIS SECTION ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVED.
If any of the Banks shall, through the exercise of any right of
counterclaim, set-off, banker's lien or otherwise, receive payment of all or any
portion of the aggregate amount of principal and interest due with respect to
the Loans held by that Bank which is greater than the amount which would have
been received by such Bank if such payment had been made to the Agent and had
been applied by the Agent in the priorities and in the manner described in
Section 8.04 (the "Agreed Application"), then that Bank receiving such greater
payment shall purchase participations (which it shall be deemed to have done
simultaneously upon the receipt of such payment) in the Loans held by each such
other Bank so that all such recoveries of principal and interest with respect to
the Loans shall be proportionate to the Banks' respective pro rata interests in
accordance with the Agreed Application; provided, that if all or any part of
such proportionately greater payment received by such purchasing Bank is
thereafter recovered from such Bank, then, to the extent of such recovery, the
purchase price for each participation shall be returned to the purchasing Bank
by the seller of such participation, but without interest. The Borrower
expressly consents to the foregoing arrangements and agrees that any holder of a
participation in any such Loan so purchased and any other subsequent holder of a
participation in any such Loan otherwise acquired may exercise any and all
rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by the Borrower to that holder as fully as if that holder were a
holder of a Revolving Note in the amount of the participation held by that
holder.
Section 7.04. Right to Cure. In the event that the Borrower shall
fail to pay any tax, assessment, governmental charge or levy, except as the same
may be otherwise permitted hereunder, or in the event that any lien, encumbrance
or security interest prohibited hereby shall not be paid in full or discharged,
or in the event that the Borrower shall fail to pay or comply with any other
obligation hereunder, the Agent may, but shall not be required to, pay, satisfy,
perform, discharge or bond the same for the account of the Borrower, and all
moneys so paid by the Agent shall be payable by the Borrower to the Agent on
demand and shall bear interest from the date of demand until paid at a
fluctuating rate per annum which shall at all times be equal to the sum of (i)
two (2%) percent per annum plus (ii) that interest rate then applicable to
Floating Rate Loans, but in no event in excess of the maximum rate permitted by
then applicable law.
Section 7.05. Remedies of Banks. The amounts payable by the
Borrower under each Revolving Note and with respect to each Loan shall be debts
separate and independent of the amounts owed under any other Revolving Note or
with respect to any other Loan and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement and its respective Revolving
Note and (as to Fleet) any letter of credit documentation, and it shall not be
necessary for any other Bank or the Agent to consent to, or to be joined as an
additional party in, any proceedings for such purposes; provided, however, that
nothing herein shall permit any individual Bank to accelerate payment of any
Revolving Note, terminate its Commitment or have recourse to any guaranty,
collateral or other security to the extent that this Agreement provides that
such rights or remedies shall be exercised by the Agent or by the Required
Banks.
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Section 7.06. Temporary Loans Payable on Demand. The Borrower
acknowledges that the Temporary Loans are and shall at all times be payable on
demand by the Agent and that it is a necessary inducement to the Agent to make
any such Temporary Loan that the Borrower hereby grants to the Agent the
unconditional right at any time in the Agent's sole discretion to decline to
make any further Temporary Loans and/or to demand payment in whole or in part of
the principal of and accrued interest on any or all of the Temporary Loans,
which right may be exercised by the Agent whether or not the Borrower is then in
compliance with the provisions hereof. If any of the Events of Default described
in Section 7.01 above shall occur and be continuing, the Agent may, but shall
not be obligated to, make such demand for payment or withhold the making of
further Temporary Loans or both; however such events are described herein only
for purposes of illustration of circumstances in which the Agent may exercise
such rights, are not exclusive and shall not be a prerequisite to (or limit) the
Agent's making demand or withholding Temporary Loans in any other circumstances.
Section 7.07. Certain Payments with Respect to Letters of Credit. Upon
acceleration of the Revolving Notes pursuant to Section 7.02 or termination of
the Commitments under Section 7.02 or occurrence of the Revolving Expiration
Date, and forthwith thereupon, the Borrower shall, without limitation of its
obligations under this Agreement and the Revolving Notes, deliver to Fleet cash
in an amount equal to the aggregate stated amounts of all letters of credit
which have been issued by Fleet but which have not been drawn upon or, if drawn
upon, have not theretofore been reimbursed to Fleet. The Borrower hereby grants
to Fleet (for the benefit of Fleet and the Participant Banks) a continuing
security interest in such cash, which shall secure all obligations of the
Borrower with respect to such letters of credit, including, without limitation,
all contingent obligations to reimburse drawings that may be made thereunder.
The provisions of this Section 7.07 shall survive termination of this Agreement.
ARTICLE VIII
CONCERNING THE AGENT
Section 8.01. Designation of Agent. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Revolving Notes), the Agent shall
not be required to exercise any discretion or to take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Banks
and such instructions shall be binding upon all Banks and all subsequent holders
of Revolving Notes; provided, however, that the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law.
Section 8.02. Duties with Respect to Revolving Notes and Loans. The
Agent will receive payments under the Revolving Notes for the benefit of the
Banks in the proportions described herein, subject to Section 8.04 of this
Agreement; provided that the Agent shall not be deemed a fiduciary for the Banks
for any other purpose unless otherwise expressly agreed by the
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Agent. Upon receipt of any payment from the Borrower, the Agent will remit to
each Bank the amount of such Bank's share of any such payment by wire transfer,
credit to an account with the Agent or in such other manner as such Bank may
reasonably request from time to time. The Agent will, promptly upon receipt,
remit to each Bank the interest and fees owed to each Bank, respectively, with
respect to the Loans and any letters of credit issued hereunder. Each Bank's
share of interest payments with respect to the Revolving Loans shall be
determined by the Agent based on such Bank's pro rata share of the Revolving
Loans outstanding (adjusted for any period during which such Bank had not funded
its share of such Revolving Loans), and each Bank's share of Commitment Fee
payments shall be determined by the Agent based on its respective Revolving Loan
Percentage of the Revolving Commitment Amount, in respect of the relevant
period.
Section 8.03. Duties With Respect to Administration. The Agent will
receive reports required under this Agreement and will administer the Loans in
the manner customarily employed by the Agent in administering loans in which it
alone has an interest. Each of the Banks agrees to keep the Agent informed
concerning its relations with the Borrower and to share with the Agent all
material information relevant to administration of this Agreement. The Agent
will keep each Bank informed of all material actions taken by it hereunder with
respect to the Loans and the Borrower. The Agent will give each Bank prompt
written notice of each Default or Event of Default of which the Agent has
received written notice from the Borrower or from any Bank.
Section 8.04. Duties Upon Default. Following any Event of Default,
the Agent may (and at the direction of any Bank or Banks holding an aggregate of
40% or more of the outstanding principal amount of the Revolving Loans shall)
declare the Revolving Notes and the Loans to be due and payable and the
Commitments to be terminated, unless the Revolving Notes and the Loans have
already become due and payable pursuant to Subsection 7.01(h) and the
Commitments have already been terminated pursuant to Subsection 7.01(h). The
Agent will thereafter seek to collect the Loans to the extent and in the manner
reasonably directed by the Required Banks and, prior to acting hereunder, the
Agent may (but shall not be required to) require indemnity satisfactory to it
for any costs and expenses which it may incur.
Following acceleration of any of the Loans (or if any Loan or Loans
shall not have been paid at the maturity thereof), all sums received by the
Agent in respect of the Loans from the exercise of any rights under any
Revolving Note and/or this Agreement shall be applied by the Agent as follows:
First, to the payment of any fees, costs, charges and expenses owing to the
Agent for actions taken on behalf of the Banks; Second, to fees, costs, charges
and expenses of the Banks payable by the Borrower under this Agreement, being
applied pro rata among the Banks (including, for this purpose, the Agent as the
maker of any Temporary Loan and Fleet as issuer of any letter of credit) in
proportion to the respective amounts then owed to each of them therefor; Third,
to the payment of interest on the accelerated Loan or Loans (or matured Loan or
Loans, as the case may be) or on any letter of credit liabilities or any
Temporary Loan, being applied pro rata among the Banks (including, for this
purpose, the Agent as maker of any Temporary Loan and Fleet as issuer of any
letter of credit) in proportion to the respective amounts then owed to each of
them therefor; Fourth, to the payment of principal outstanding with respect to
the accelerated Loan or Loans (or matured Loan or Loans, as the case may be) or
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any letter of credit liabilities or any Temporary Loan, being applied pro rata
among the relevant Banks (including, for this purpose, the Agent if it makes a
Temporary Loan and Fleet as issuer of any letter of credit) in proportion to the
respective amounts then owed to each of them on account of the principal of such
Loans or any letter of credit liabilities or any Temporary Loan; and Fifth to
the payment of any and all other amounts which may then be owed by the Borrower
to any one or more of the Banks, the Agent and/or Fleet, being applied pro rata
to such amounts. For the purposes of the preceding sentence, the phrase "then
owed" refers to amounts owed at the time of acceleration (or maturity, as the
case may be). In the event that, due to exercise of its rights under Section
7.03 or for any other reason, any Bank shall receive more than the share of
fees, costs, charges, expenses, principal or interest to which it would be
entitled under this Section 8.04 in respect of any Loan or Loans, such Bank will
promptly remit to each other Bank such amounts as may be required to ensure that
each Bank receives its pro rata share of each item in order to effectuate the
distribution set forth in this Section 8.04. Notwithstanding anything to the
contrary contained in this Agreement, in connection with the distribution set
forth in this Section 8.04, in the event that any amounts are received by any
Bank pursuant to a set-off against accounts of the Borrower with such Bank,
then, for purposes of distribution of such amounts only, principal and interest
owed to each of the Banks will be deemed to include the principal of and
interest on any Other Obligations (as hereinafter defined) then owed to each
such Bank (such interest on and principal of Other Obligations being deemed, for
this purpose only, included in clause Third above and clause Fourth above,
respectively).
Section 8.05. Other Obligations. Any of the Banks may now or hereafter
be owed obligations by the Borrower which do not arise under this Agreement or
any Revolving Note ("Other Obligations"). Nothing contained herein shall be
deemed to constitute an agreement by any Bank to participate in or to grant a
participation to any other Bank in any such Other Obligations. Notwithstanding
an Event of Default or acceleration of any Revolving Note, any Bank may invoke
any available right or remedy and proceed against any security, collateral or
other property and may apply the proceeds obtained thereby to any Other
Obligations owed to such Bank, without regard to the provisions of this
Agreement, except as provided in the last sentence of Section 8.04.
Section 8.06. Standard of Care. The Agent, in acting hereunder, shall
not be liable for any error of judgment or mistake of fact or for any acts of
omission or commission, unless the same are caused by its own willful misconduct
or gross negligence. The Agent may act in reliance (and will be protected in so
relying) on all instructions (written or telephonic), certificates, instruments,
documents or signatures believed by it to be genuine and may assume that any
person purporting to act or give notices, certificates, writings, advice or
instructions is duly authorized by the appropriate party to do so. The Agent may
rely upon an opinion of counsel and any action taken in reliance on such opinion
shall be deemed to have been reasonable.
Neither the Agent nor any of its shareholders, directors, officers or
employees or any other Person assisting the Agent in its duties, nor any agent
or employee thereof, shall be liable for any action taken or omitted to be taken
in good faith by it or them under this Agreement or any Revolving Note, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such
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other Person, as the case may be, may be liable for losses due to its own
willful misconduct or gross negligence. Without in any way limiting the
generality of the foregoing, the Agent may employ attorneys-in-fact and other
agents and shall not be accountable for the errors of any of them selected with
reasonable care.
The Agent shall not be responsible for the authorization, execution,
legality, validity, perfection or enforceability of this Agreement, any Loan,
any Revolving Note or any instrument at any time constituting, or intending to
constitute, collateral security for any Revolving Note, or for the
collectability of any amounts owing with respect to this Agreement, any Loan or
any Revolving Note, or for any recitals or statements, warranties or
representations in this Agreement or made in any certificate or instrument
heretofore or hereafter furnished by or on behalf of the Borrower or for the
financial condition of the Borrower, nor will the Agent be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements in this Agreement or any other instrument at any time
constituting or intended to constitute collateral security for any Revolving
Note. The Agent shall not be bound to ascertain whether any notice, consent,
waiver or request delivered to it by the Borrower or any Bank shall have been
duly authorized or is true, accurate and complete. The Agent shall have no
responsibility for the performance of any Loans. Each Bank acknowledges that the
Agent has not made nor does it now make any representations or warranties,
express or implied, nor does the Agent assume any liability to the Banks with
respect to, the creditworthiness or financial condition of the Borrower, and
each Bank acknowledges that no act by the Agent hereafter taken, including any
review of the affairs of the Borrower and its Subsidiaries, shall be deemed to
constitute any representation or warranty by the Agent to any Bank. Each Bank
represents to the Agent that it has, independently and without reliance upon the
Agent and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrower and its Subsidiaries and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and has made its own decision to enter
into this Agreement and to extend credit to the Borrower hereunder. Each Bank
also represents that it will, independently and without reliance upon the Agent
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for any financial statements, notices,
reports and other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrower or any Subsidiary which may come into the
possession of the Agent.
If, in the opinion of the Agent, the distribution of any amount
received by it in such capacity under this Agreement or under any related
instrument or under any Revolving Note might subject it to liability, it may
refrain from making such distribution until its right to make such distribution
shall have been adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and distributed by
the Agent is to be repaid to or for the benefit of the Borrower, or its
successors or assigns, each Person to whom
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any such distribution shall have been made shall either pay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be determined by such court.
In its individual capacity, Fleet shall have the same obligations and
the same rights, powers and privileges in respect to its interest in the Loans,
the Revolving Notes and this Agreement as it would have were it not also the
Agent. Neither its service as Agent nor its participation as one of the Banks
making Loans pursuant to this Agreement shall in any way preclude Fleet from
having other financial relationships with the Borrower.
Section 8.07. Expenses. Each Bank severally agrees to reimburse the
Agent upon demand for such Bank's pro rata share (determined in proportion to
its respective Revolving Loan Percentage) of any costs and expenses other than
normal overhead expenses (fees of outside counsel not being deemed normal
overhead expenses) incurred by the Agent in connection with the administration
of this Agreement, the Loans or any related instrument or in connection with any
collection action undertaken on behalf of the Banks, excluding, however, any
expense reimbursed by the Borrower (the Borrower having the primary obligation
to pay such costs and expenses). The sums to be reimbursed under this Section
shall, until paid, constitute a first charge and lien upon any funds or property
now or hereafter held by the Agent. Without limiting the foregoing, the
following shall be considered and treated as costs and expenses payable under
the foregoing provisions:
(i) any monies paid by the Agent in defending, settling or
satisfying any claim, action or demand asserted by any receiver,
trustee in bankruptcy or reorganization, assignee, creditor,
stockholder or other Person in connection with the Borrower or the
Loans or any transaction or collateral related thereto, on any theory
of preference, fraudulent conveyance, subordination, usury, ultra
vires, invalidity, lender liability or similar theory;
(ii) any monies paid by the Agent in satisfying any prior lien
asserted with respect to any collateral, including any expenses, costs
and attorneys' fees which may be incurred in connection with any of the
foregoing; and
(iii) any monies advanced by the Agent to or for the account of
the Borrower to the extent necessary in connection with the
effectuation of an orderly liquidation of the principal balance
outstanding on the Loans.
Section 8.08. Resignation of Agent; Appointment of Successor Agent. The
Agent, or any successor Agent hereafter appointed, may at any time resign and be
discharged of its obligations as Agent hereunder by giving to the other parties
hereto not less than 30 days' prior written notice of its intention to resign.
In the event of the resignation of the Agent, a successor Agent shall
be appointed by the Required Banks. The appointment of a successor Agent shall
be effective on the date of resignation specified in the resigning Agent's
notice or upon the acceptance in writing by the successor Agent of the agency
created hereunder, whichever shall last occur. If, within 30 days
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of the Agent's notice of intended resignation, a successor Agent shall not have
been appointed and accepted such appointment, the resigning Agent may appoint a
successor. The Borrower agrees to execute and deliver to any successor Agent all
such documents as may be deemed necessary or desirable by such successor Agent
in order to perfect, preserve and protect the rights of the successor Agent and
the Banks under this Agreement.
Section 8.09. Borrower's Acknowledgment. The Borrower acknowledges and
agrees that the Banks and the Agent may share with each other information with
respect to the Borrower and its Subsidiaries, the performance of the Borrower
and its Subsidiaries under this Agreement, and the business, operations and
financial condition of the Borrower and its Subsidiaries.
Section 8.10. No Other Beneficiaries. The provisions of this Article
VIII shall be binding upon the Borrower, but neither the Borrower nor any other
Person (except the Banks and Agent) shall have any claim, defense or cause of
action based on any provision of this Article VIII and nothing contained in this
Article VIII shall derogate from any obligation of the Borrower or limit any
right or remedy of the Agent or the Bank as against the Borrower, whether such
right or remedy is contained in this Agreement or elsewhere.
ARTICLE IX
MISCELLANEOUS
Section 9.01. No Waiver; Cumulative Remedies. No failure or delay on
the part of the Agent or any Bank in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law or otherwise available to the Agent or any Bank. Such remedies
may be exercised without resort or regard to any other source of satisfaction of
any liabilities of the Borrower to the Agent or any Bank.
The provisions of this Agreement are not in derogation or limitation of
any obligations, liabilities or duties of the Borrower under any of the other
Loan Documents or any other agreement with or for the benefit of the Agent
and/or any of the Banks. No inconsistency in default provisions between this
Agreement and any of the other Loan Documents or any such other agreement will
be deemed to create any additional grace period or otherwise derogate from the
express terms of each such default provision. No covenant, agreement or
obligation of the Borrower contained herein, nor any right or remedy of the
Agent and/or any of the Banks contained herein, shall in any respect be limited
by or be deemed in limitation of any inconsistent or additional provisions
contained in any of the other Loan Documents or in any such other agreement.
Section 9.02. Amendments, Waivers and Consents. Neither this Agreement
nor any provision hereof may be amended, waived, discharged or terminated
orally. No amendment or waiver of any provision of this Agreement, nor any
consent to any departure by the Borrower therefrom, shall be effective unless
the same shall be signed by the Borrower, the Agent and the
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Required Banks; provided, however, that no Bank which does not consent thereto
in writing will be bound by (i) any change in the aggregate Revolving Commitment
Amount or the respective Revolving Loan Percentages; (ii) any decrease in the
amount of principal payable with respect to any Loans; (iii) any decrease in
interest rate on any Loans; (iv) any waiver or postponement of the time for
payment of principal of or interest on any Loans; or (v) any change in the
definition of "Required Banks" or in this Section 9.02. Further, unless signed
by the Agent and all of the Banks, no amendment or waiver will be effective: (i)
which permits any assignment by the Borrower of any of its rights under this
Agreement, (ii) which effects any change in the pro rata treatment of the Banks
under this Agreement or in the order of application of funds provided for in
Section 8.04, or (iii) which amends the definition of "Material Subsidiaries"
contained in Section 1.01 or amends or waives any provisions relating to
Material Subsidiaries contained in Subsection 6.01(p). Any waiver or consent
under this Section 9.02 may be given subject to satisfaction of conditions
stated therein and any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. In no event will any
amendment, waiver or consent be deemed effective if the result of same is to
decrease in any manner the compensation of the Agent or to increase in any
manner the Agent's expenses, duties or responsibilities unless the Agent has, in
each case, expressly assented thereto in writing.
Section 9.03. Addresses for Notices, etc. Except as otherwise expressly
provided in this Agreement, all notices, requests, demands and other
communications provided for hereunder shall be in writing and shall be mailed or
delivered to the applicable party at the address indicated below:
If to the Borrower:
Unitrode Corporation
7 Continental Boulevard
Merrimack, NH 03054
Attention: Steven A. Caparco, Treasurer
If to Fleet or the Agent:
Fleet National Bank
High Technology Division
Mail Code: MA OF D07A
One Federal Street,
Boston, MA 02110
Attention: Irina V. Case, Vice President
If to any other Bank:
At the respective address or addresses set forth on Schedule
II hereto
or, as to each of the foregoing, at such other address as shall be designated by
such Person in a written notice to the other parties complying as to delivery
with the terms of this Section. All such notices, requests, demands and other
communications shall be deemed delivered on the
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earlier of (i) the date received or (ii) the date of delivery, refusal or
non-delivery indicated on the return receipt if deposited in the United States
mails, sent postage prepaid, certified or registered mail, return receipt
requested, addressed as aforesaid.
Section 9.04. Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses (including, without limitation, reasonable legal
fees) of the Agent in connection with the preparation, execution and delivery of
this Agreement, the Revolving Notes and all other instruments and documents to
be delivered hereunder and any amendments or modifications of any of the
foregoing, as well as the costs and expenses (including, without limitation, the
reasonable fees and expenses of legal counsel) incurred by the Agent or any Bank
in connection with enforcing or exercising any rights or remedies under this
Agreement, the Revolving Notes and all other instruments and documents to be
delivered hereunder, all whether or not legal action is instituted. In addition,
the Borrower shall be obligated to pay any and all stamp and other taxes payable
or determined to be payable in connection with the execution and delivery of
this Agreement, the Revolving Notes and all other instruments and documents to
be delivered hereunder, and agrees to save each Bank and the Agent harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes. Any fees, expenses or other charges
which the Agent or any Bank is entitled to receive from the Borrower hereunder
shall bear interest from the date of demand for payment until paid at a
fluctuating rate per annum which shall at all times be equal to the sum of (i)
two (2%) percent per annum plus (ii) that interest rate which would then be
applicable to Floating Rate Loans, but in no event in excess of the maximum rate
permitted by then applicable law.
Section 9.05. Withholding Tax. (a) Any Bank that is a "foreign
corporation" within the meaning of the Internal Revenue Code shall deliver to
the Agent and the Borrower on or prior to the date of its execution and delivery
of this Agreement in the case of each Bank listed on the signature pages hereof,
and on or prior to the date on which it becomes a Bank in the case of each other
Bank, before the payment of any interest or fees in each third succeeding
calendar year during which interest or fees may be paid under this Agreement, or
before such form expires or becomes obsolete:
(i) two properly completed and executed copies of IRS Form
1001 (or successor form), certifying that such Bank is entitled to
benefits under an income tax treaty to which the United States is a
party which completely exempts such Bank from United States withholding
tax on payments of interest for the account of such Bank under this
Agreement or the Revolving Notes;
(ii) two properly completed and executed copies of IRS Form
4224 (or successor form), certifying that income receivable by such
Bank pursuant to this Agreement or the Revolving Notes is effectively
connected with the conduct of such Bank's trade or business in the
United States and such income is completely exempt from United States
withholding tax; or
(iii) such other form or forms as may be required under the
Internal Revenue Code or other laws of the United States as a condition
to complete exemption
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from United States withholding tax with respect to any interest payment
hereunder or under the Revolving Notes;
Each Bank agrees promptly to notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption.
(b) If any Bank claims exemption from withholding tax under a
United States tax treaty by providing IRS Form 1001 (or successor form) and such
Bank sells, assigns, grants a participation in, or otherwise transfers all or
part of the Loans owing to such Bank, such Bank agrees to notify the Agent of
the percentage amount as to which it is no longer the beneficial owner of such
Loans. To the extent of such percentage amount, the Agent will treat such Bank's
IRS Form 1001 (or successor form) as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 (or successor form) with the Agent
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Loans owing to such Bank, such Bank agrees to undertake sole responsibility
for complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Internal Revenue Code.
(d) If the forms or other documentation required by Subsection
9.05(a) are not timely delivered to the Agent, then the Agent may withhold from
any interest payment to such Bank not providing such forms or other
documentation an amount equivalent to the applicable withholding tax imposed by
Section 1441 and 1442 of the Internal Revenue Code.
(e) If the IRS or any other governmental authority of the
United States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered or was not properly executed, or
because such Bank failed to notify the Agent of a change in circumstances which
rendered the exemption from withholding tax ineffective, or for any other
reason) such Bank shall indemnify the Agent fully for all amounts paid, directly
or indirectly, by the Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs and expenses
(including attorneys' fees). The obligations of the Banks under this Subsection
shall survive the termination of the Commitments, the termination or expiration
of all letters of credit now or hereafter issued hereunder, the payment of all
other Loans hereunder and the resignation or replacement of the Agent.
Section 9.06. Reduction and Termination. This Agreement may be
terminated by the Borrower at any time upon written notice of such termination
to the Agent and the Banks; provided, however, that, unless and until all Loans
made by the Banks hereunder and all other Indebtedness hereunder of the Borrower
to the Agent or any Bank (whether or not due) shall have been paid in full and
no letters of credit remain outstanding, such termination shall in no way affect
the rights and powers granted to the Agent and/or Banks in connection with this
Agreement, and until such payment in full all rights and powers hereby granted
to the Agent and to each Bank hereunder shall be and remain in full force and
effect.
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The Borrower may at any time, by written notice to the Agent, reduce
the Revolving Commitment Amount by $1,000,000 or any integral multiple thereof;
provided that the notice to the Agent shall be accompanied by such prepayment of
principal as shall be necessary to ensure that the Aggregate Revolving Loans do
not exceed the Revolving Commitment Amount, as same may be so reduced. Any such
reduction notice will be irrevocable and any such reduction will be permanent.
Any such reduction will be deemed to reduce the Banks' respective Commitments on
a pro rata basis.
Section 9.07. Representations and Warranties. All covenants,
agreements, representations and warranties made herein or in any other document
delivered by or on behalf of the Borrower pursuant to or in connection with this
Agreement are material and shall be deemed to have been relied upon by the Agent
and the Banks, notwithstanding any investigation heretofore or hereafter made by
the Agent or any Bank, shall survive the making of the Loans as herein
contemplated, and shall continue in full force and effect so long as any of the
Loans or other amount due under this Agreement remains outstanding and unpaid.
All statements contained in any certificate or other paper delivered to the
Agent or any Bank at any time by or on behalf of the Borrower pursuant hereto
shall constitute representations and warranties by the Borrower hereunder. Any
request for a borrowing hereunder, any acceptance of a Loan hereunder by the
Borrower and any issuance of a letter of credit for the account of the Borrower
will be deemed a representation by the Borrower that, as at the date of such
borrowing or letter of credit issuance, as the case may be, the Borrower is in
compliance with Subsections 4.02(a)-(d).
Section 9.08. Binding Effect; Assignment. This Agreement shall be
binding upon the Borrower and its successors and assigns and shall inure to the
benefit of the Borrower, the Agent, the Banks and their respective permitted
successors and assigns. The Borrower may not assign this Agreement or any rights
hereunder without the express written consent of the Agent. Any Bank may assign
to any other bank or other institutional lender (an "Assignee") all or any
portion of its rights hereunder and/or with respect to any of the Loans;
provided that (A) such Bank has offered in writing to assign the same to the
other Banks (pro rata in accordance with their respective Revolving Loan
Percentages) and such other Banks shall not have accepted such offer with
respect to all of the offered interests within 14 days of receipt of such offer
(or, having accepted such offer, shall have failed to close the assignment
transaction as to all of the offered interests within 30 days after receipt of
the offer); (B) each of the Agent, Fleet (in its capacity as letter of credit
issuer) and the Borrower has consented to such assignment (such consent by the
Borrower not to be unreasonably withheld or delayed), except that such consent
of the Borrower shall not be required after the occurrence and during the
continuance of any Default or Event of Default and no such consent shall be
required for any assignment made by a Bank to another then existing Bank; and
(C) except in connection with an assignment of all of a Bank's rights and
obligations with respect to its Commitment, Loans and Letter of Credit
Liabilities, any such assignment hereunder shall be equal to or greater than
$5,000,000; and provided further, however, that the Borrower and the Agent may
continue to deal solely and directly with the assignor Bank in connection with
the interest so assigned to an Assignee until (1) such assignor Bank and its
Assignee shall have delivered to the Borrower and the Agent an Assignment and
Acceptance Agreement substantially in the form of Exhibit M hereto (an
"Assignment and Acceptance"), together with any Revolving Note or Revolving
Notes subject to such assignment; (2) a written notice of such assignment,
together with payment instructions, addresses and related
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information with respect to the Assignee, in substantially the form of the
Notice of Assignment and Acceptance attached as Schedule I to the Assignment and
Acceptance, shall have been given to the Borrower and the Agent by such Bank and
the Assignee; (3) the assignor Bank or the Assignee shall have paid to the Agent
a processing fee in the amount of $3,500; and (4) the Agent, Fleet and the
Borrower each consents to such assignment to the extent required by this
Section.
From and after the date that the Agent notifies the assignor Bank that
the Agent has received (and, if required, has provided its consent with respect
to and, if necessary, has received the consent of the Borrower with respect to)
an executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Bank under the Loan Documents, (ii) this Agreement shall be deemed to be amended
to the extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom, and
(iii) the assignor Bank shall, to the extent that rights and obligations
hereunder and under the other Loan Documents have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Loan Documents; provided, however, that the assignor
Bank shall not relinquish its rights under Section 2.09, 9.04 or 9.09 to the
extent such rights relate to the time prior to the effective date of the
Assignment and Acceptance. The Commitment allocated to each Assignee shall
reduce the Commitment of the assigning Bank pro tanto.
Within five Business Days after its receipt of notice by the Agent that
it has received (and, if necessary, consented to) an executed Assignment and
Acceptance and payment of the processing fee (and provided that the Borrower
consents to such assignment to the extent required by this Section), the
Borrower shall execute and deliver to the Agent any new Revolving Notes
requested by such Assignee evidencing such Assignee's assigned Loans and
Commitment and, if the assignor Bank has retained a portion of its Loans and its
Commitment, replacement Revolving Notes as requested by the assignor Bank
evidencing the Loans and Commitment retained by the assignor Bank (such
Revolving Notes to be in exchange for, but not in payment of, the Revolving
Notes held by such Bank, if any).
In addition, and without limitation of the foregoing,
(i) Each Bank may at any time (without any requirement for an
offer to the other Banks) pledge all or any portion of its rights under
any Loan Document (including any portion of any Revolving Note) to any
of the 12 Federal Reserve Banks organized under Section 4 of the
Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or the
enforcement thereof shall release the pledging Bank from its
obligations under any of the Loan Documents.
(ii) Each Bank shall have the unrestricted right at any time
and from time to time, and without the consent of or notice to the
Borrower (and without any requirement for an offer to the other Banks),
to grant to one or more banks or other financial institutions (each, a
"Participant") participating interests in such Bank's obligation to
lend
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hereunder and/or any or all of the Loans held by such Bank hereunder.
In the event of any such grant by a Bank of a participating interest to
a Participant, whether or not upon notice to the Borrower, such Bank
shall remain responsible for the performance of its obligations
hereunder and the Borrower shall continue to deal solely and directly
with such Bank in connection with the such Bank's rights and
obligations hereunder. Each Bank may furnish any information concerning
the Borrower in its possession from time to time to prospective
assignees and Participants; provided that such Bank shall require any
such prospective assignee or Participant to agree in writing to
maintain the confidentiality of such information to the same extent as
such Bank would be required to maintain such confidentiality.
Section 9.09. Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify, defend and
hold the Agent and each Bank and each of their respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities, claims, obligations, losses,
damages, penalties, actions, judgments, suits, costs, charges, expenses and
disbursements (including reasonable attorneys' fees) of any kind or nature
whatsoever which may at any time (including at any time following repayment of
the Loans, the termination of the letters of credit issued hereunder and the
termination, resignation or replacement of the Agent or replacement of any Bank)
be imposed on, incurred by or asserted against any such Person in connection
with any investigation, litigation or proceeding (including any bankruptcy or
reorganization proceeding or appellate proceeding) in any way relating to or
arising out of this Agreement or any document contemplated by or referred to
herein, or the transactions contemplated hereby or the use of the proceeds of
any Loans, or any action taken or omitted by any such Person under or in
connection with any of the foregoing, whether or not any Indemnified Person is a
party thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided that the Borrower shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities to the extent that they are found
by a final decision of a court of competent jurisdiction to have resulted solely
from the gross negligence or willful misconduct of such Indemnified Person. The
agreements in this Section and in Section 9.04 shall survive the termination of
the Commitments, the termination or expiration of all letters of credit issued
hereunder and the payment of all Loans.
Section 9.10. Reproduction of Agreement. This Agreement and all other
instruments, documents and papers which relate thereto which have been or may be
hereafter furnished to the Agent or any Bank may be reproduced by the Agent or
any Bank by any photographic, photostatic, micro-card, miniature photographic,
xerographic or similar process, and the Agent or any Bank may destroy the
original from which any document was so reproduced. Any such reproduction shall
be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made in the regular course of business).
Section 9.11. Consent to Jurisdiction. The Borrower irrevocably submits
to the non-exclusive jurisdiction of any Massachusetts court or any federal
court sitting within The Commonwealth of Massachusetts over any suit, action or
proceeding arising out of or relating to this Agreement. The Borrower
irrevocably waives, to the fullest extent permitted by law, any
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objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding brought in such a court and any claim that any such
suit, action or proceeding has been brought in an inconvenient forum. The
Borrower agrees that final judgment in any such suit, action or proceeding
brought in such a court shall be enforced in any court of proper jurisdiction by
a suit upon such judgment, provided that service of process in such action, suit
or proceeding shall have been effected upon the Borrower in one of the manners
specified in the following paragraph of this Section 9.11 or as otherwise
permitted by law.
The Borrower hereby consents to process being served in any suit,
action or proceeding of the nature referred to in the preceding paragraph of
this Section 9.11 either (i) by mailing a copy thereof by registered or
certified mail, postage prepaid, return receipt requested, to it at its address
set forth in Section 9.03 or (ii) by serving a copy thereof upon it at its
address set forth in Section 9.03. The Borrower irrevocably waives, to the
fullest extent permitted by law, all claims of error by reason of any service as
contemplated herein and agrees that such service shall be deemed in every
respect effective service upon the Borrower in any such suit, action or
proceeding and, to the fullest extent permitted by law, be taken and held to be
valid personal service upon and personal delivery to the Borrower.
Section 9.12. Governing Law. This Agreement and each of the Revolving
Notes shall be governed by, and construed and enforced in accordance with, the
laws of The Commonwealth of Massachusetts.
Section 9.13. Severability. In the event that any provision of this
Agreement or the application thereof to any Person, property or circumstances
shall be held to any extent to be invalid or unenforceable, the remainder of
this Agreement and the application of such provision to Persons, properties or
circumstances other than those as to which it has been held invalid or
unenforceable shall not be affected thereby, and each provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
Section 9.14. Headings. Article and Section headings in this Agreement
and any table of contents are included herein for convenience of reference only
and shall not constitute a part of this Agreement for any other purpose.
Section 9.15. Replacement Note. Upon receipt of an appropriate and
reasonably acceptable affidavit of an officer of any Bank as to the loss, theft,
destruction or mutilation of any Revolving Note or of any other Loan Document
which is not of public record and, in the case of any such mutilation, upon
surrender and cancellation of such Revolving Note or other Loan Document, the
Borrower will issue, in lieu thereof, a replacement Revolving Note or other Loan
Document in the same principal amount (as to any Revolving Note) and in any
event of like tenor.
Section 9.16. Usury. All agreements between the Borrower (on the one
hand) and the Agent and/or any of the Banks (on the other hand) are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the Revolving Notes or otherwise, shall
the amount paid or agreed to be paid to any Bank for the use or the forbearance
of the Indebtedness represented by any Revolving Note exceed the maximum
-61-
<PAGE> 66
permissible under applicable law. In this regard, it is expressly agreed that it
is the intent of the Borrower, the Agent and the Banks, in the execution,
delivery and acceptance of the Revolving Notes, to contract in strict compliance
with the laws of The Commonwealth of Massachusetts. If, under any circumstances
whatsoever, performance or fulfillment of any provision of any of the Revolving
Notes or any of the other Loan Documents at the time such provision is to be
performed or fulfilled shall involve exceeding the limit of validity prescribed
by applicable law, then the obligation so to be performed or fulfilled shall be
reduced automatically to the limits of such validity, and if under any
circumstances whatsoever any Bank should ever receive as interest an amount
which would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the principal balance evidenced by
the Revolving Notes and not to the payment of interest. The provisions of this
Section 9.16 shall control every other provision of this Agreement and of each
Revolving Note.
Section 9.17. WAIVER OF JURY TRIAL. THE BORROWER, THE BANKS AND THE
AGENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY MUTUALLY WAIVE THE RIGHT
TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT, ANY REVOLVING NOTE OR ANY OTHER LOAN
DOCUMENTS OR OUT OF ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A
MATERIAL INDUCEMENT FOR THE BANKS TO ENTER INTO THIS AGREEMENT AND TO MAKE LOANS
AS CONTEMPLATED HEREIN.
-62-
<PAGE> 67
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, as an instrument under seal, by their respective officers thereunto
duly authorized as of the date first above written.
UNITRODE CORPORATION
By:______________________________
Name:
Title:
FLEET NATIONAL BANK
By:______________________________
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY
By:______________________________
Name:
Title:
ABN AMBRO BANK N.V.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
FLEET NATIONAL BANK, as Agent
By:_______________________________
Name:
Title:
-63-
<PAGE> 68
Schedule I
<TABLE>
<CAPTION>
Bank Revolving Loan Commitment
- ---- Percentage Amount
---------- ------------
<S> <C> <C>
Fleet National Bank 40% $ 20,000,000
State Street Bank and Trust Company 30% 15,000,000
ABN AMRO Bank N.V. 30% 15,000,000
------- -------------
100% $ 50,000,000
</TABLE>
<PAGE> 69
Schedule II
Bank Addresses
Fleet National Bank
High Technology Division
Mail Code: MA OF D07A
One Federal Street
Boston, MA 02110
Attention: Irina V. Case, Vice President
Fax: (617) 346-0151
State Street Bank and Trust Company
225 Franklin Street, 2nd Floor
Boston, MA 02110
Attention: Michael J. Cronin, Vice President
Fax: (617) 664-6527
ABN AMRO Bank N.V.
One Post Office Square, 39th Floor
Boston, MA 02110
Attention: Bruce Swords, Vice President
Fax: (617) 988-7910
-2-
<PAGE> 1
EXHIBIT 21
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES
SUBSIDIARIES OF THE REGISTRANT
All operating subsidiaries of the Registrant as of January 31, 1999 (except
subsidiaries which considered in the aggregate do not constitute a significant
subsidiary) were as follows:
<TABLE>
<CAPTION>
% OF VOTING
JURISDICTION OF SECURITIES
NAME OF SUBSIDIARY INCORPORATION OWNED
- ------------------ --------------- -----------
<S> <C> <C>
Benchmarq Microelectronics, Inc. ........................... Delaware 100%
Unitrode B.V. .............................................. Netherlands 100%
Unitrode Electronics Asia Ltd. ............................. Hong Kong 100%
Unitrode Electronics GmbH................................... West Germany 100%
Unitrode Electronics (Singapore) Pte. Ltd. ................. Singapore 100%
Unitrode S.r.l. ............................................ Italy 100%
Unitrode U.K. Limited....................................... United Kingdom 100%
</TABLE>
<PAGE> 1
EXHIBIT 23.1
UNITRODE CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statements
of Unitrode Corporation and Consolidated Subsidiaries on Form S-8 (File Nos.
33-12353, 33-54542, 33-54544, 333-00107, 333-35339, 333-60733 and 333-68251) and
Form S-3 (File No. 333-17123) of our report dated March 3, 1999, on our audits
of the consolidated financial statements and financial statement schedule of
Unitrode Corporation and Consolidated Subsidiaries as of January 31, 1999 and
1998 and for each of the three years in the period ended January 31, 1999, which
report is included in this Annual Report on Form 10-K.
/s/ PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
April 21, 1999
<PAGE> 1
EXHIBIT 23.2
REPORT OF INDEPENDENT AUDITORS
Board of Directors and Stockholders
BENCHMARQ Microelectronics, Inc.
We have audited the consolidated balance sheets of BENCHMARQ
Microelectronics, Inc. (the Company) as of December 31, 1997, and the related
consolidated statements of income, stockholders' equity, and cash flows for each
of the two years in the period ended December 31, 1997 (not presented separately
herein). These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of BENCHMARQ
Microelectronics, Inc., at December 31, 1997, and the consolidated results of
its operations and its cash flows for each of the two years in the period ended
December 31, 1997, in conformity with generally accepted accounting principles.
/s/ Ernst & Young LLP
Dallas, Texas
January 26, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report dated January 26, 1998, with respect to
the consolidated financial statements of BENCHMARQ Microelectronics, Inc.
included in this Annual Report (Form 10-K) of Unitrode Corporation.
We also consent to the incorporation by reference in the Registration
Statements of Unitrode Corporation on Form S-8 (File Nos. 33-12353, 33-54542,
33-54544, 333-00107, 333-35339, 333-60733 and 333-68251) and Form S-3 (File No.
333-17123) and related prospectuses of our report dated January 26, 1998, with
respect to the consolidated financial statements of BENCHMARQ Microelectronics,
Inc. included in this Annual Report (Form 10-K) of Unitrode Corporation.
/s/ Ernst & Young LLP
Dallas, Texas
April 21, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JAN-31-1999
<PERIOD-START> FEB-01-1998
<PERIOD-END> JAN-31-1999
<EXCHANGE-RATE> 1
<CASH> 91,551
<SECURITIES> 0
<RECEIVABLES> 23,541
<ALLOWANCES> 2,206
<INVENTORY> 22,356
<CURRENT-ASSETS> 153,294
<PP&E> 156,020
<DEPRECIATION> 78,674
<TOTAL-ASSETS> 239,964
<CURRENT-LIABILITIES> 27,251
<BONDS> 0
0
0
<COMMON> 320
<OTHER-SE> 208,910
<TOTAL-LIABILITY-AND-EQUITY> 239,964
<SALES> 157,801
<TOTAL-REVENUES> 157,801
<CGS> 85,988
<TOTAL-COSTS> 85,988
<OTHER-EXPENSES> 0
<LOSS-PROVISION> (74)
<INTEREST-EXPENSE> 108
<INCOME-PRETAX> 15,213
<INCOME-TAX> 6,567
<INCOME-CONTINUING> 8,646
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,646
<EPS-PRIMARY> .27
<EPS-DILUTED> .27
</TABLE>
