<PAGE>
As filed with the Securities and Exchange Commission
on July 7, 1998
Registration No. 333-_______
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FSC SEMICONDUCTOR CORPORATION
(Exact Name of Issuer as specified in its charter)
Delaware 04-3363001
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
333 Western Avenue
Mail Stop 01-00
South Portland, Maine 04106
(Address of Principal Executive (Zip Code)
Offices)
EMPLOYEE STOCK PURCHASE SAVINGS PLAN
(Full title of the plan)
David J. Champoux
Pierce Atwood
One Monument Square
Portland, Maine 04101
(Name and address of agent for service)
(207) 791-1100
(Telephone number, including area code, of agent for service)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Minimum
Title of Securities Amount to Offering Price Offering Price Amount of
to be Registered* be Registered Per Share Per Share Registration Fee*
<S> <C> <C> <C> <C>
Class A Common Stock, 500,000 shares $10.00(1) $10.00(1) $1,475.00
par value $.01 per share
</TABLE>
- --------------------
(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the most recent exercise price of stock options granted to date by
the registrant pursuant to its Stock Option Plan (and the fact that book value
of such shares is negative at present), in accordance with Rules 457(c) and
457(h) of the Securities Act of 1933. Under the registrant's Employee Stock
Purchase Savings Plan, not more than the lesser of (i) shares of Class A Common
Stock having an aggregate sales price of up to $5,000,000 or (ii) 2.5% of the
total number of shares of Class A Common Stock issuable in the registrant's
initial public offering, may be offered and sold.
* Pursuant to Rule 417 under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the FSC Semiconductor Corporation Employee Stock Purchase
Savings Plan. Pursuant to Rule 457(h)(2) of the Securities Act of 1933, no
separate registration fee is required with respect to such interests.
<PAGE>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which are filed with the Securities and
Exchange Commission (the "Commission"), are incorporated in this Registration
Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(2) All other reports filed pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the document referred to in (1) above.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all shares of Class A Common Stock offered hereby
have been sold or which deregisters all shares of Class A Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the respective dates of filing of such documents.
Item 4. Description of Securities
-------------------------
The Registrant's authorized capital stock consists of 80,000,000 shares
of Class A Common Stock, $.01 par value ("Common Stock"), 80,000,000 shares of
Class B Common Stock, $.01 par value ("Class B Common Stock") and 70,000 shares
of 12% Series A Cumulative Compounding Preferred Stock ("Preferred Stock"),
$1,000 per share stated value.
Dividends may be paid to the holders of the Common Stock and Class B
Common Stock when and if declared by the Board of Directors out of funds legally
available therefor, and after payment of cumulative dividends on outstanding
Preferred Stock, if any. Under the terms of its existing indebtedness, the
Registrant and its subsidiaries are subject to substantial restrictions on their
ability to pay dividends on Common Stock and Class B Common Stock, and
management does not anticipate any such dividend payments in the foreseeable
future. Also, the Registrant may not pay any dividend upon (except for a
dividend payable in Junior Stock, as defined below), or redeem or otherwise
acquire shares of, capital stock junior to the Preferred Stock (including the
Common Stock and Class B Common Stock) ("Junior Stock") unless all cumulative
dividends on the Preferred Stock have been paid in full. Upon liquidation,
dissolution or winding up of the Registrant, holders of Preferred Stock will be
entitled to receive out of the legally available assets of the Registrant,
before any amount shall be paid to holders of Junior Stock, an amount equal to
$1,000 per share of Preferred Stock, plus all accrued and unpaid dividends to
the date of final distribution. If such available assets are insufficient to pay
the holders of the outstanding shares of Preferred
II-1
<PAGE>
Stock in full, such assets, or the proceeds thereof, will be distributed ratably
among such holders.
Under the Certificate of Incorporation of the Registrant, a holder of
Common Stock or Class B Common Stock may convert any or all of his shares into
an equal number of shares of the other class of common stock; provided that in
the case of a conversion from Class B Common Stock, which is nonvoting, into
Common Stock, which is voting, the holder of shares to be converted would be
permitted under applicable law to hold the total number of shares of Common
Stock which would be held after giving effect to the conversion.
The Common Stock and the Class B Common Stock are not entitled to any
preemptive or other subscription rights and do not have any redemption or
sinking fund provisions. Holders of Common Stock are entitled to one vote per
share held of record on all matters submitted to a vote of stockholders. Except
as required by law, the holders of Class B Common Stock will have no voting
rights. Voting in the election of directors is not cumulative. Holders of
Preferred Stock have limited voting rights.
Upon liquidation, the holders of Common Stock and Class B Common Stock
are entitled to share ratably in the entire net assets of the Registrant
remaining available for distribution to stockholders after payment of all
amounts payable on liquidation in respect of outstanding shares of Preferred
Stock, if any. All outstanding shares of Common Stock and Class B Common Stock
are, and the shares offered hereby will be, validly issued, fully paid and
nonassessable.
The persons and entities who became stockholders of the Registrant in
connection with its formation are parties to a Securities Purchase and Holders
Agreement (the "Stockholders' Agreement") containing certain agreements among
such stockholders with respect to the capital stock and corporate governance of
the Registrant. The following is a summary description of the principal terms of
the Stockholders' Agreement, a copy of which is available upon request to the
Registrant.
Pursuant to the Stockholders' Agreement, the Board of Directors of the
Registrant will be composed at all times of seven directors as follows: Kirk P.
Pond (so long as he continues to own shares of Common Stock, Class B Common
Stock or Preferred Stock); Joseph R. Martin (so long as he continues to own
shares of Common Stock, Class B Common Stock or Preferred Stock); the President
of the Registrant if either of Messrs. Pond or Martin is no longer serving on
the Board of Directors; if National Semiconductor Corporation so chooses, so
long as National Semiconductor Corporation continues to own shares of Common
Stock or Preferred Stock, one individual designated by National Semiconductor
Corporation, provided that such person shall initially be either Brian L. Halla
or Donald Macleod (until the earlier of March 11, 1999 or the date upon which
such person ceases to be an executive officer of National Semiconductor
Corporation) and thereafter shall be an executive officer of National
Semiconductor Corporation reasonably acceptable to the remaining directors; two
individuals designated by Sterling Capital Holdings, LLC ("Sterling"); and the
remaining directors such independent directors as shall be designated by
Sterling (to the extent permitted by applicable law as determined by Sterling in
its sole
II-2
<PAGE>
discretion), subject to the right of the Chief Executive Officer of the
Registrant to veto the election of any such independent director, provided, that
in the event that Sterling concludes that it is unable to designate, or elects
not to designate for any reason, one or more of such independent directors or
the election of any such independent director is not approved by the holders of
a majority of the outstanding shares of Common Stock, such directorship(s) shall
not be filled by the remaining members of the Registrant's Board of Directors
but shall remain vacant until the election of a director designated by Sterling
to fill such vacancy in accordance with the Stockholders' Agreement.
The Stockholders' Agreement contains certain provisions which, with
certain exceptions, restrict the ability of the parties thereto to transfer any
Common Stock, Class B Common Stock or Preferred Stock except pursuant to the
terms of the Stockholders' Agreement. If holders of more than 50% of the Common
Stock and Class B Common Stock (voting together) approve the sale of the
Registrant (an "Approved Sale"), each of such parties has agreed to consent to
such sale and, if such sale includes the sale of stock, each of such parties has
agreed to sell all of such stockholder's Common Stock, Class B Common Stock and
Preferred Stock on the terms and conditions approved by holders of a majority of
the Common Stock and Class B Common Stock then outstanding (voting together). In
the event the Registrant proposes to issue and sell (other than in a public
offering pursuant to a registration statement) any shares of Common Stock or
Class B Common Stock or any securities containing options or rights to acquire
any shares of Common Stock or Class B Common Stock or any securities convertible
into Common Stock or Class B Common Stock to Sterling or its corporate
affiliates, the Registrant must first offer to the parties thereto a pro rata
portion of such shares. Such preemptive rights will not be applicable to the
issuance of shares of Common Stock or Class B Common Stock upon the conversion
of shares of one class of common stock into shares of the other class.
THE SHARES OF CLASS A COMMON STOCK THAT MAY BECOME ISSUABLE PURSUANT TO
THE PLAN WILL GENERALLY CONSTITUTE NEWLY ISSUED SECURITIES FOR WHICH THERE IS
CURRENTLY NO ACTIVE TRADING MARKET. ALTHOUGH SHARES OF CLASS A COMMON STOCK WILL
BECOME ISSUABLE UNDER THE PLAN ONLY IN CONNECTION WITH A PUBLIC OFFERING
REGISTERED UNDER THE ACT, THERE CAN BE NO ASSURANCE THAT AN ACTIVE TRADING
MARKET WILL DEVELOP OR CONTINUE FOR THE CLASS A COMMON STOCK AFTER SUCH
OFFERING. IF A TRADING MARKET DOES NOT DEVELOP OR IS NOT MAINTAINED, HOLDERS OF
CLASS A COMMON STOCK MAY EXPERIENCE DIFFICULTY IN RESELLING SUCH SHARES OR MAY
BE UNABLE TO SELL THEM AT ALL. THE INITIAL PUBLIC OFFERING PRICE PER SHARE OF
THE CLASS A COMMON STOCK (UPON WHICH THE PRICE AT WHICH SHARES MAY BE SOLD
PURSUANT TO THE PLAN WILL BE DETERMINED) WILL BE DETERMINED BY NEGOTIATIONS
BETWEEN THE COMPANY AND THE REPRESENTATIVES OF THE UNDERWRITERS OF SUCH
OFFERING, AND MAY NOT BE INDICATIVE OF THE PRICE AT WHICH THE CLASS A COMMON
STOCK WILL TRADE AFTER THE COMPLETION OF SUCH OFFERING. IN ADDITION, THE STOCK
MARKET HAS FROM TIME TO TIME EXPERIENCED EXTREME PRICE AND VOLUME VOLATILITY,
AND SUCH VOLATILITY MAY ADVERSELY AFFECT THE MARKET PRICE OF THE CLASS A COMMON
STOCK. IF SUCH SHARES ARE TRADED AFTER THEIR INITIAL ISSUANCE, THEY MAY TRADE AT
A DISCOUNT FROM THE ORIGINAL PURCHASE
II-3
<PAGE>
PRICE THEREOF UNDER THE PLAN, DEPENDING UPON THE MARKET FOR SIMILAR SECURITIES
AND OTHER FACTORS, INCLUDING GENERAL ECONOMIC AND INDUSTRY CONDITIONS AND THE
FINANCIAL CONDITION OF, PERFORMANCE OF AND PROSPECTS FOR THE REGISTRANT AND ITS
SUBSIDIARIES. CLASS A COMMON STOCK WILL BE OFFERED TO PLAN PARTICIPANTS ONLY IF
AND WHEN THE COMPANY UNDERTAKES A PUBLIC OFFERING OF CLASS A COMMON STOCK
PURSUANT TO A REGISTRATION STATEMENT FILED PURSUANT TO THE ACT. PLAN
PARTICIPANTS WILL NOT BE CALLED UPON TO MAKE AN INVESTMENT DECISION WITH RESPECT
TO THE PURCHASE OF CLASS A COMMON STOCK UNTIL AFTER RECEIPT OF A PROSPECTUS
FORMING A PART OF SUCH REGISTRATION STATEMENT. PLAN PARTICIPANTS SHOULD
CAREFULLY REVIEW SUCH PROSPECTUS, INCLUDING THE PORTION THEREOF CAPTIONED "RISK
FACTORS."
Management is not aware of any arrangement which could at a subsequent
date result in a change in control of the Registrant.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Section 145 of the Delaware General Corporation Law provides in
relevant part that a corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful.
In addition, Section 145 provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if
II-4
<PAGE>
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper.
Section 145 further provides that nothing in the above-described
provisions shall be deemed exclusive of any other rights to indemnification or
advancement of expenses to which any person may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
The Bylaws of the Registrant provide for the indemnification of any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding") by reason of the fact
that such person is or was a director or officer of the Registrant or a
constituent corporation absorbed in a consolidation or merger, or is or was
serving at the request of the Registrant or a constituent corporation absorbed
in a consolidation or merger, as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or is or was a director
or officer of the Registrant serving at its request as an administrator, trustee
or other fiduciary of one or more of the employee benefit plans of the
Registrant or other enterprise, against expenses (including attorneys' fees),
liability and loss actually and reasonably incurred or suffered by such person
in connection with such proceeding, whether or not the indemnified liability
arises or arose from any threatened, pending or completed proceeding by or in
the right of the Registrant, except to the extent that such indemnification is
prohibited by applicable law. The Bylaws of the Registrant also provide that
such indemnification shall not be deemed exclusive of any other rights to which
those indemnified may be entitled as a matter of law or under any by-law,
agreement, vote of stockholders or otherwise.
Section 102(b)(7) of the Delaware General Corporation Law provides that
a corporation may in its certificate of incorporation eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director except for
liability: for any breach of the director's duty of loyalty to the corporation
or its stockholders; for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; under Section 174 of the
Delaware General Corporation Law (pertaining to certain prohibited acts
including unlawful payment of dividends or unlawful purchase or redemption of
the corporation's capital stock); or for any transaction from which the director
derived an improper personal benefit. The Certificate of Incorporation of the
Registrant contains a provision so limiting the personal liability of directors
of the Registrant.
II-5
<PAGE>
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
------------
1. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
2. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of any employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is
II-6
<PAGE>
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of South Portland, State of Maine, on the 25th day of
June, 1998.
FSC SEMICONDUCTOR CORPORATION
By: /s/ Kirk P. Pond
-----------------------
Kirk P. Pond
President and Chief
Executive Officer
II-8
<PAGE>
POWER OF ATTORNEY
We, the undersigned officers and directors of FSC SEMICONDUCTOR
CORPORATION, hereby severally constitute Kirk P. Pond and Daniel E. Boxer, and
each of them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement on Form S-8 filed herewith and any and all
subsequent amendments to said Registration Statement, and generally to do all
such things in our names and behalf in our capacities as officers and directors
to enable FSC SEMICONDUCTOR CORPORATION to comply with all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Kirk P. Pond President, Chief Executive June 25, 1998
- ------------------------------------- Officer and Director
Kirk P. Pond
/s/ Joseph R. Martin Executive Vice President, June 25, 1998
- ------------------------------------- Chief Financial Officer
Joseph R. Martin and Director
/s/ Richard M. Cashin, Jr. Director June 25, 1998
- -------------------------------------
Richard M. Cashin, Jr.
Director June __, 1998
- -------------------------------------
Brian L. Halla
/s/ William N. Stout Director June 25, 1998
- -------------------------------------
William N. Stout
/s/ Paul C. Schorr, IV Director June 25, 1998
- -------------------------------------
Paul C. Schorr, IV
/s/ Ronald Shelly Director June 25, 1998
- -------------------------------------
Ronald Shelly
</TABLE>
II-9
<PAGE>
Exhibit Index
-------------
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1(2) Certificate of Incorporation of the Registrant
4.2(2) Bylaws of the Registrant
4.3(1) Certificate of Amendment to Certificate of Incorporation of
the Registrant
5.1(1) Opinion of Pierce Atwood
10.1(1) FSC Semiconductor Corporation Employee Stock Purchase Savings
Plan, as amended as of June 25, 1998
10.2(1) Fairchild Revocable Savings Plan Trust, dated February 20,
1998, executed by Fleet Bank of Maine, as trustee
23.1(1) Consent of Pierce Atwood (included in Exhibit 5.1)
23.2(1) Consent of KPMG Peat Marwick L.L.P.
24.1(1) Power of Attorney (see page II-9)
</TABLE>
- ------------------------
(1) Filed herewith.
(2) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-4 (File No. 333-26897).
<PAGE>
Exhibit 4.3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FSC SEMICONDUCTOR CORPORATION
---------------------------------
FSC Semiconductor Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), does hereby certify:
FIRST: That at a meeting of the board of directors of the Corporation
held on January 5, 1998, a resolution was duly adopted setting forth a
proposed amendment to the Certificate of Incorporation of the
Corporation, declaring said amendment to be advisable and calling for
consideration of said proposed amendment by the stockholders of the
Corporation. The resolution setting forth the amendment is as follows:
RESOLVED, that the first sentence of Article 4 of the Certificate
of Incorporation of the Corporation be amended so that the same
sentence as amended reads as follows:
The aggregate number of shares of stock which the Corporation
shall have authority to issue is 160,070,000 shares, divided
into three (3) classes consisting of 70,000 shares of 12%
Series A Cumulative Compounding Preferred Stock, par value
$.01 per share ("Series A Preferred Stock"); 80,000,000 shares
of Class A Common Stock, par value $.01 per share ("Class A
Common Stock"); and 80,000,000 shares of Class B Common Stock,
par value $.01 per share ("Class B Common Stock").
SECOND: That thereafter, pursuant to the resolution of the board of
directors, the proposed amendment to the Certificate of Incorporation
of the Corporation was approved by the written consent of the
stockholders of the Corporation dated April 24, 1998.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed by Daniel E. Boxer, its Executive Vice
President and Secretary, this 27th day of April, 1998.
By: /s/ DANIEL E. BOXER
--------------------------
Daniel E. Boxer
Executive Vice President
and Secretary
<PAGE>
Exhibits 5.1 and 23.1
June 30, 1998
FSC Semiconductor Corporation
333 Western Avenue
South Portland, Maine 04106
Re: Employee Stock Purchase Savings Plan
Dear Sirs:
We have assisted in the preparation of the Registration Statement on
Form S-8 (File No. 333-_________) (the "Registration Statement") to be filed
with the Securities and Exchange Commission relating to 500,000 shares of Class
A Common Stock, par value $.01 per share (the "Shares"), of FSC Semiconductor
Corporation, a Delaware corporation (the "Company"), issuable pursuant to the
Company's Employee Stock Purchase Savings Plan (the "Plan").
We have examined and relied upon the Company's Certificate of
Incorporation and Bylaws and originals, or copies certified to our satisfaction,
of all pertinent records of the meetings of the directors and stockholders of
the Company, the Registration Statement and such other documents relating to the
Company as we have deemed relevant for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies.
Based on and subject to the foregoing, we are of the opinion that: (i)
the Company has duly authorized for issuance the Shares covered by the
Registration Statement issued or to be issued pursuant to the Plan, as described
in the Registration Statement, and the Shares, when issued in accordance with
the terms of the Plan, will be legally issued, fully paid and non-assessable;
and (ii) the interests in the Plan, when acquired in accordance with the terms
of such Plan, will be valid and legal interests in such Plan.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
Pierce Atwood
<PAGE>
Exhibit 10.1
FSC SEMICONDUCTOR CORPORATION
EMPLOYEE STOCK PURCHASE SAVINGS PLAN
Effective February 26, 1998
As Amended, Effective June 25, 1998
<PAGE>
FSC SEMICONDUCTOR CORPORATION
EMPLOYEE STOCK PURCHASE SAVINGS PLAN
PARTICIPATION IN THIS PLAN DOES NOT OBLIGATE A PARTICIPANT TO PURCHASE
ANY STOCK. THIS PLAN IS INTENDED ONLY TO PROVIDE A CONVENIENT MEANS BY WHICH
ELIGIBLE PERSONS MAY, AT THEIR SOLE OPTION, SET ASIDE FUNDS FOR THE POSSIBLE
FUTURE PURCHASE OF STOCK. THIS PLAN DOES NOT CONSTITUTE, NOR SHOULD IT BE
CONSTRUED AS, AN OFFER TO SELL, OR A SOLICITATION OF OFFERS TO PURCHASE (OR OF
INDICATIONS OF INTEREST WITH RESPECT TO THE POSSIBLE PURCHASE OF) ANY SECURITY.
ANY SUCH OFFER OR SOLICITATION WILL BE MADE ONLY BY MEANS OF DELIVERY TO PLAN
PARTICIPANTS OF A PROSPECTUS IN COMPLIANCE WITH THE APPLICABLE LAWS AND
REGULATIONS OF THE JURISDICTIONS IN WHICH SUCH PROSPECTUS IS BEING UTILIZED. THE
ESTABLISHMENT OF THIS PLAN DOES NOT OBLIGATE THE COMPANY OR FAIRCHILD
SEMICONDUCTOR CORPORATION TO EFFECTUATE A PUBLIC OFFERING OF STOCK. THERE CAN BE
NO ASSURANCE AS TO WHEN, WHETHER, OR ON WHAT TERMS ANY SUCH OFFERING WILL OCCUR.
1. Purpose. The purpose of the FSC Semiconductor Corporation Employee
Stock Purchase Savings Plan (the "Plan") is to provide a means for eligible
employees of FSC Semiconductor Corporation (the "Company"), a Delaware
corporation, and of entities directly or indirectly controlled by,
controlling or under common control with the Company ("Affiliates") to set
aside a portion of their compensation for use in the purchase of common
stock in an initial public offering by the Company or Fairchild
Semiconductor Corporation, and, in light of the possibility of such stock
ownership, to provide incentives for such employees to exert maximum
efforts toward the Company's success. By extending an opportunity to
acquire such stock, and to participate in the Company's success, the Plan
may be expected to benefit the Company by facilitating the attraction and
retention by it of qualified employees.
2. Eligibility. Each active employee of the Company or its subsidiaries
participating in the Plan who holds a position designated grade 39 or
below, other than an interim or coop employee, as of the date enrollment
forms are due pursuant to paragraph 4(a) is eligible to participate in the
Plan. Eligibility of employees of any Affiliate of the Company shall be
determined by such Affiliate.
3. Contributions under the Plan. Each eligible employee may contribute up
to ten percent (10%), stated in whole percentages, of his or her eligible
earnings, which shall consist of such employee's base salary, overtime,
lead premiums and shift differential income received from the Company or
any of its Affiliates, but in no event may any participant's contributions
to the Plan exceed $5,000 in any calendar year. Such contributions shall be
made solely by means of payroll deductions in accordance with elections
made by the Plan participant and reflected in the enrollment documentation
referred to in paragraph 4(a), as thereafter adjusted, suspended, or
terminated in accordance with paragraph 4.
<PAGE>
4. Enrollment; Withdrawal; Termination; Adjustment of Contribution Levels;
Suspension of Contributions; Currency Conversion; Allocation of Plan
Income.
(a) Eligible employees may enroll in the Plan by submitting to the
Plan administrator the enrollment documentation then being
utilized by the Company. Enrollment may occur effective as of
February 26, 1998 by submission of such documentation not
later than February 6, 1998, or effective as of any subsequent
April 1, July 1, October 1 or January 1 by submission of such
documentation not less than thirty (30) days prior to such
effective date of enrollment.
(b) Any Plan participant may withdraw from the Plan at any time by
delivery to the Plan administrator of written notice of
withdrawal, and will receive the entire balance of such
participant's Plan account within ten (10) business days
thereafter. Re-enrollment in the Plan will be subject to
continuing eligibility to participate in the Plan, as provided
in paragraph 2, and to compliance with the provisions of
paragraph 4(a). Partial withdrawals of Plan account balances
may not be made.
(c) A participant's participation in the Plan shall terminate
effective immediately upon, and the entire balance of such
participant's Plan account will be delivered to the
participant within ten (10) business days after, receipt of
notice by the Plan administrator of the termination of the
participant's status as an employee of the Company or any of
its Affiliates. If a Plan participant continues to be an
employee of the Company or any of its Affiliates but ceases
to be an active employee (such as in connection with a leave
of absence), the participant's contributions to the Plan
will be suspended for the duration of such ineligibility,
but the participant's accrued Plan account may, at the
option of such participant, remain in the Plan, and may be
utilized as provided in paragraph 5 hereof.
(d) A Plan participant may prospectively adjust his or her level
of contribution, within the limitations set forth in paragraph
3 above, by submitting to the Plan administrator the
participation adjustment documentation then being utilized by
the Company. Provided that such documentation is submitted at
least thirty (30) days prior thereto, such adjustment shall
take effect as of the next enrollment date under paragraph
4(a).
(e) Notwithstanding the provisions of paragraph 4(d), a Plan
participant may prospectively suspend his or her contributions
to the Plan by submitting to the Plan administrator the
suspension documentation then being utilized by the Company,
which suspension shall take effect as of the next pay period
that begins following such submittal. Any recommencement of
Plan contributions by such participant shall be made in
accordance with paragraph 4(d).
(f) The contributions of Plan participants who are compensated in
currencies other than U.S. dollars (other than Plan
participants in jurisdictions where such conversion is
prohibited or restricted by law) shall be converted into
U.S. dollars at the time of each payroll deduction. The
conversion rates shall be established by the Company on the
first day of each fiscal month of the Company, and will be
2
<PAGE>
equal to the Company Rate as defined in and calculated in
accordance with Fairchild Semiconductor Corporation's
Corporate Financial Policies as modified from time to time.
Such conversion rate shall remain in effect throughout the
succeeding fiscal month. Any amounts withdrawn from the Plan
by such a participant or returned to such participants upon
termination of the Plan or the termination of such
participant's eligibility shall be converted from U.S.
dollars into the currency in which such participant is
compensated at the conversion rate in effect under this
paragraph 4(f) on the effective date of such withdrawal or
of the termination of the Plan or such participant's
eligibility, as the case may be. The contributions of Plan
participants which are not made in or regularly converted
into U.S. dollars and who elect to purchase stock under the
Plan will be converted into U.S. dollars at that time to the
extent necessary to purchase into such stock. Such
conversion will be made at the rate then in effect pursuant
to this paragraph 4 (f).
PLAN PARTICIPANTS WHO ARE COMPENSATED IN CURRENCIES OTHER THAN
U.S. DOLLARS AND WHOSE CONTRIBUTIONS ARE REGULARLY CONVERTED
INTO U.S. DOLLARS UNDER THE PLAN WILL BE SUBJECT TO THE RISK
OF EXCHANGE RATE FLUCTUATIONS, WHEREBY ANY APPRECIATION OF THE
CURRENCY IN WHICH THEY ARE COMPENSATED RELATIVE TO THE U.S.
DOLLAR, WOULD RESULT IN A DECLINE IN THE VALUE OF THEIR PLAN
BALANCES (MEASURED IN TERMS OF THE CURRENCY IN WHICH THEY ARE
COMPENSATED), WHICH DECLINE COULD BE SUBSTANTIAL.
(g) Income generated in a given money market or comparable fund
(as contemplated by paragraph 6 (b)) with respect to amounts
held under the Plan will be allocated to Plan participants
whose contributions have been invested in such fund pro rata
at the end of each calendar quarter and upon termination of
the Plan, and whose contributions have been invested in such
fund will be automatically reinvested, in the same manner in
which Plan contributions are invested, for the benefit of
such Plan participants without further action by Plan
participants. Plan participants who withdraw from the Plan,
or whose participation in the Plan terminates pursuant to
paragraph 4(c), prior to the end of a calendar quarter will
not be entitled to receive any income generated in respect
of Plan account balances with respect to that calendar
quarter.
5. Purchase of Stock. In the event of an initial public offering of the
common stock of the Company or Fairchild Semiconductor Corporation, a
Delaware corporation, pursuant to a registration statement filed with
the Securities and Exchange Commission (the "SEC") (excluding any
offering under Form S-8, Form S-4 or any successor form), the Company
will make available for purchase in such public offering by persons
then participating in the Plan $5.0 million of such common stock
(calculated on the basis of the offering price to the public of such
stock), at a price per share (payable in U.S. dollars) equal to or
less than the price at which such stock is being offered to the public
generally; provided, however, that in no event may the number of
shares of such common stock made available pursuant to the Plan exceed
2.5% of the total number of shares of common
3
<PAGE>
stock sold in such public offering. Each Plan participant shall be
entitled, in his or her sole and absolute discretion, not to purchase
any of such stock, or to utilize all or any portion of the balance of
the participant's Plan account to purchase such stock; provided,
however, that in the event that the aggregate proposed stock purchases
by Plan participants exceed the amount of such stock that has been
made available hereunder for such purchases, such stock will be
apportioned among those electing to purchase stock pro rata to reflect
the relative stock purchase elections of such electing participants.
An election to purchase such stock may be made by submitting to the
Plan administrator, in accordance with delivery instructions to be
provided by the Company to participants, documentation evidencing such
election to be provided to participants in connection with such
offering together with (or following delivery to participants of) a
prospectus pertaining to such offering. Fractional shares may not be
purchased under the Plan.
6. Account Maintenance; Plan Administration.
(a) The Plan shall be administered by the Company or one or more
third party administrators designated by the Company from time
to time. The initial administrator of the Plan shall be AST
Stock Plan, Inc.
(b) The Plan account balances will be held in trust for the
benefit of Plan participants, and, at the direction of the
Company, such funds will be invested under the name of such
trust in one or more money market mutual funds whose shares
have been registered with the SEC, and such amounts will be
segregated from the Company's assets and will at all times
be assets of the Plan participants. Fleet Bank of Maine will
serve as the initial trustee of such trust, and successor
and/or additional trustees may be appointed by the President
of the Company. Before any eligible employee commences
participation in the Plan, such employee will be furnished
with a copy of the prospectus relating to any such mutual
fund together with all other materials required to be
delivered pursuant to the regulations of the SEC, and any
annual reports and other materials required by SEC
regulations to be furnished to shareholders of any such
mutual fund will be timely provided to each Plan participant
on an ongoing basis. In addition, each Plan participant
shall be provided with a copy of each annual report of the
Company on Form 10-K promptly following the filing thereof
with the SEC, and each prospective participant in the Plan
shall be provided with a copy of the Company's most recently
filed Form 10-K prior to enrollment in the Plan.
Notwithstanding the foregoing, the contributions of Plan
participants whose Plan contributions are not regularly
converted into U.S. dollars pursuant to paragraph 4 (f) will
be held in separate trusts and invested in comparable funds,
denominated in their local currencies, selected by the
President of the Company.
(c) The Plan administrator will be furnished such information by
the Company as the administrator may deem necessary or
desirable in order to enable the administrator to establish
and maintain accurate records of each Plan participant's
account balance on a continuous basis, and the administrator
will provide each Plan participant with a quarterly statement
of such participant's Plan account activity during the
preceding quarter, including his or her beginning and ending
4
<PAGE>
Plan account balances and income received on account thereof
during such quarterly period.
(d) The Plan administrator will make any tax withholdings required
under the Internal Revenue Code of 1986, as amended (the
"Code") or other applicable tax laws with respect to taxable
income generated on the Plan participants' account balances,
and will timely provide Plan participants with all necessary
reporting required under the Code (or such other laws) with
respect to such income. Plan participants shall be solely
responsible for the payment of any taxes with respect to such
income.
(e) Other than as set forth in the last sentence of paragraph
6(d), all expenses of the Plan (including without limitation
the fees of the Plan administrator) shall be borne solely by
the Company.
7. Term; Termination. The Plan shall commence as of February 26, 1998, and
shall terminate upon the closing of the initial public offering of
common stock of the Company or Fairchild Semiconductor Corporation
described in paragraph 5, unless earlier terminated by action of the
Board of Directors of the Company. Any remaining account balances of
the Plan participants (including any income generated with respect to
participants' account balances subsequent to the end of the most recent
calendar quarter, which shall not be available for stock purchases
under paragraph 5 hereof) shall be returned to them within ten (10)
business days following the effective date of the termination of the
Plan.
8. Amendment; Suspension. This Plan may be amended or suspended at any
time or from time to time by the Board of Directors of the Company;
provided, however, that no such amendment or suspension may adversely
affect any participant's entitlement to his or her existing Plan
account balance.
9. Miscellaneous.
(a) The rights of any Plan participant under the Plan are not
assignable or transferable. Any right to purchase stock under
paragraph 5 may be exercised only by a Plan participant.
(b) Participation in the Plan will not impose any obligation upon
the Company or any of its Affiliates to continue the
employment of any Plan participant for any specific period of
time and will not affect the right of the Company or its
Affiliates to terminate such person's employment at any time,
with or without cause.
(c) This document, as it may be amended in accordance with
paragraph 8 hereof, constitutes the entire Plan, and
supersedes any and all prior oral or written expressions with
respect to the subject matter hereof, and may not be amended
or modified other than as provided in paragraph 8.
5
<PAGE>
Exhibit 10.2
FAIRCHILD REVOCABLE SAVINGS PLAN TRUST
THIS DECLARATION OF TRUST, made this 20th day of February, 1998,
having FLEET BANK OF MAINE, a corporation organized under the laws of the State
of Maine and having its principal office in Portland, Maine, as trustee
(hereinafter referred to as the "Trustee");
W I T N E S S E T H, T H A T :
WHEREAS, FSC Semiconductor Corporation, of South Portland, Maine,
desires to provide a means for eligible employees of FSC Semiconductor
Corporation (or of a direct or indirect subsidiary thereof) to save and to
accumulate funds to enable such an employee, at the employee's discretion and in
accordance with the Fairchild Semiconductor Corporation Employee Stock Purchase
Savings Plan, as amended from time to time (the "Plan"), to participate in any
initial public offering of the stock of said FSC Semiconductor Corporation or
Fairchild Semiconductor Corporation; and
WHEREAS, no employee is obligated to participate in any such initial
public offering and, accordingly, as more fully provided in the Plan, at any
time an eligible employee may add (exclusively through payroll deduction)
property to or withdraw all such employee's property from this trust;
NOW, THEREFORE, Fleet Bank of Maine, as Trustee, and its successors in
office, will hold, administer and dispose of all property that is transferred to
this trust from time to time by such employees in a trust, to be known as the
"Fairchild Revocable Savings Plan Trust", as follows:
ARTICLE I
Disposition of Trust Funds
A. During the continuance of this trust, the Trustee may receive
property from employees of FSC Semiconductor Corporation (or any direct or
indirect subsidiary thereof) from payroll deduction and in accordance with the
Plan. The property so transferred by an employee to the Trust shall be held in a
separate trust for the benefit of such employee, with each such employee's
separate trust to be known by the name of such employee followed by the word
"Trust".
B. While an employee's separate trust continues, the Trustee shall
accumulate the net income of such separate trust and annually shall add it to
trust principal; provided, however, that if a licensed physician certifies in
writing to the Trustee that the employee in respect of whom such separate trust
is established is incapacitated, the Trustee shall continue to accumulate the
net income of such trust unless otherwise directed in writing by such employee's
legal representative.
<PAGE>
ARTICLE II
Termination
A separate employee's trust hereunder shall terminate upon the earlier
to occur of (1) termination of such employee's eligibility to participate in the
Plan, (2) such employee's withdrawal from the participation in the Plan, (3) an
initial public offering of the stock of said FSC Semiconductor Corporation or of
said Fairchild Semiconductor Corporation, as defined in paragraph 5 of the Plan,
or other termination of the Plan in accordance with its terms. Upon termination
of a separate trust established hereunder, the Trustee shall distribute all of
the then remaining assets of such separate trust to the employee in respect of
whom such trust was established or to such employee's agent (designated by such
employee in writing). If, however, an employee's separate trust terminates as a
result of such employee's death, then the Trustee shall distribute all of the
then remaining assets of such trust to the personal representative of such
employee's estate to be disposed of as a part of that estate.
ARTICLE III
Trustees
A. The Trustee may resign at any time by providing thirty (30) days
written notice to FSC Semiconductor Corporation. If a vacancy occurs in the
office of Trustee hereunder, the person or persons, bank or trust company
appointed in a written instrument executed by the President of FSC Semiconductor
Corporation, or of its then successor in interest, shall become a Trustee or
Trustees hereunder.
B. No Trustee serving hereunder shall be required to furnish any bond
or, if bond is required by law, no surety on such bond shall be required. The
Trustee is excused from filing any inventory with, and accounting to, any court.
C. During the continuance of this trust, the Trustee shall be paid such
reasonable compensation as shall from time to time be agreed upon by FSC
Semiconductor Corporation and the Trustee. FSC Semiconductor Corporation shall
pay such compensation and all reasonable costs, charges, and expenses incurred
by the Trustee in connection with the administration of this trust, including
counsel, investment and administrative fees. If not so paid by FSC Semiconductor
Corporation, the same shall be paid from this trust.
D. The Trustee shall be fully protected in acting upon any written
instruction, instrument, certificate or other document believed by the Trustee
to be genuine and to be signed or presented by the proper person or persons, and
the Trustee shall be under no duty to make any investigation or inquiry as to
any statement contained in any such writing, but may accept the same as
conclusive evidence of the truth and accuracy contained therein.
2
<PAGE>
E. The Trustee shall not be liable hereunder for any loss or diminution
of this trust resulting from any reasonable action taken or refrained from being
taken in accordance with the fiduciary obligations imposed on trustees by
applicable law.
F. The Trustee is entitled to indemnification, to the extent permitted
by law, and to be held harmless from and against any and all claims or
liabilities, losses, costs or expenses (including, without limitation,
reasonable attorneys' fees and expenses) of whatever kind that may be asserted
against or incurred by the Trustee by reason of its taking or refraining from
taking any action hereunder, except to the extent due to the Trustee's gross
negligence or willful misconduct.
ARTICLE IV
Administrative Powers
A. In extension of and not in limitation of the powers given trustees
by applicable law and the other provisions of this instrument, the Trustee shall
have the following powers with respect to the trust and its property, in each
case to be exercised from time to time in the sole discretion of the Trustee and
without authorization or license of any court of probate or any other authority
whatsoever and without giving bond therefor:
1. To invest the assets of this trust wholly in cash or cash
equivalents (including without limitation the Galaxy Government Money Market
Fund or other similar fund irrespective of such fund's affiliation with the
Trustee) without regard to further diversification of the trust assets, and
notwithstanding the fact that any or all of the investments made or retained are
of a character or size which but for this express authority would not be
considered proper for fiduciaries.
2. To employee and compensate agents, including, without limitation,
administrators, attorneys, investment advisors, custodians, brokers and
accountants, each of whose compensation shall be determined and paid
independently of any compensation paid to the Trustee or to any other such agent
and each of whom may be employed regardless of any connection between any such
agent and the Trustee, and to delegate to such agents or any of them, or to
another Trustee, if any, temporarily or permanently, such discretionary powers
of such time as the Trustee may consider advisable; provided, however, that
nothing in this Subsection shall be construed to permit any Trustee to delegate
to any other person all of his, her or its powers and duties.
3. To receive, pursuant to the Plan, from employees of said FSC
Semiconductor Corporation (or a direct or indirect subsidiary thereof) during
the continuance of this trust additions to it exclusively through payroll
deduction in accordance with the provisions of the Plan; and to hold and
administer the same under the provisions hereof.
3
<PAGE>
4. To mingle the trust property of the separate trusts administered
under this instrument, allotting to each separate trust an undivided interest in
the mingled funds that shall always be equal to that trust's proportionate
contribution (as adjusted from time to time as a result of accumulations of
income, payments of principal and additions to principal) to the mingled funds.
ARTICLE V
Governing Law
The trust established under this instrument is a Maine trust, made in
that State, and is to be governed, construed, and administered according to its
laws and shall continue to be so governed, construed and administered even
though administered elsewhere within the United States or abroad.
IN WITNESS WHEREOF, said FLEET BANK OF MAINE, in acceptance of the
terms of this trust and the office of Trustee hereunder, has caused this
instrument to be signed in its corporate name and sealed with its corporate seal
by its officer thereunto duly authorized, all the day and year first above
written.
FLEET BANK OF MAINE, Trustee
/s/ Andrea Lutz By: /s/ David J. Parker
- --------------------------- --------------------------
Witness Its
David J. Parker
-------------------------------
[Print name]
4
<PAGE>
Exhibit 23.2
Consent of Independent Accountants
The Board of Directors
FSC Semiconductor Corporation
We consent to incorporation by reference in the registration statement
on Form S-8 (Registration No. 333-________) of FSC Semiconductor Corporation,
for the registration of shares of its common stock pertaining to its Employee
Stock Purchase Savings Plan, of our report dated June 5, 1997, relating to the
consolidated balance sheet of FSC Semiconductor Corporation as of May 25, 1997,
the combined balance sheet of the FSC Semiconductor Business of National
Semiconductor Corporation as of May 26, 1996, and the related consolidated and
combined statements of operations and equity for each of the years in the
three-year period ended May 25, 1997, which report is included in the annual
report on Form 10-K of FSC Semiconductor Corporation for the year ended May 25,
1997.
KPMG Peat Marwick LLP
Boston, Massachusetts
July 7, 1998
