<PAGE> 1
As filed with the Securities and Exchange Commission
on June 2, 1999
Registration No. 333-35347
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
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)
STOCK OPTION 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 6,084,000 shares $10.00(1) $10.00(1) $17,947.80(2)
par value $.01 per share
</TABLE>
- --------------------
(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the exercise price of the options granted to date (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.
(2) Payable due to the increase in the number of shares registered and in the
current exercise price.
<PAGE> 2
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
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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 become 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
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Sterling (to the extent permitted by applicable law as determined by Sterling in
its sole 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 COMMON STOCK ISSUABLE UPON EXERCISE OF OPTIONS GRANTED UNDER
THE PLAN WILL GENERALLY CONSTITUTE NEWLY ISSUED SECURITIES FOR WHICH THERE IS
CURRENTLY NO ACTIVE TRADING MARKET. IF SUCH SHARES ARE TRADED AFTER THEIR
INITIAL ISSUANCE, THEY MAY TRADE AT A DISCOUNT FROM THE EXERCISE PRICE UNDER
SUCH OPTIONS, 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 COMPANY AND ITS SUBSIDIARIES.
THE COMPANY HAS FILED WITH THE COMMISSION A REGISTRATION STATEMENT ON FORM S-1
WITH RESPECT TO AN OFFERING OF ITS CLASS A COMMON STOCK; HOWEVER, THERE CAN BE
NO ASSURANCE THAT SUCH OFFERING WILL BE CONSUMMATED OR THAT THE CLASS A COMMON
STOCK WILL BE LISTED FOR TRADING ON ANY SECURITIES EXCHANGE OR RECEIVE APPROVAL
FOR QUOTATION THROUGH ANY AUTOMATED QUOTATION SYSTEM. THERE CAN BE NO ASSURANCE
THAT AN ACTIVE TRADING MARKET WILL DEVELOP FOR THE COMMON STOCK. IF A TRADING
MARKET DOES NOT DEVELOP OR IS NOT MAINTAINED, HOLDERS OF COMMON STOCK MAY
EXPERIENCE DIFFICULTY IN RESELLING SUCH SHARES OR MAY BE UNABLE TO SELL THEM AT
ALL.
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<PAGE> 5
Affiliates of the Registrant may not reoffer or resell Common Stock
acquired pursuant to the exercise of options under the Plan except: (1) pursuant
to an effective registration statement covering such resale or reoffer, (2) in a
transaction which meets all the requirements of Rule 144 of the Commission
except paragraph (d) thereof, or (3) pursuant to any other applicable exemption
from registration. An affiliate is a person who directly or indirectly controls,
is controlled by, or under common control with the Registrant. Optionees are
advised to consult with counsel before effecting reoffers or resales of Common
Stock acquired pursuant to the exercise of options under the Plan.
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
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 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
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<PAGE> 6
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.
Item 7. Exemption from Registration Claimed.
Not applicable.
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<PAGE> 7
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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<PAGE> 8
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 Amendment No. 1 to
the 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
1st day of June, 1999.
FSC SEMICONDUCTOR CORPORATION
By: /s/ KIRK P. POND
-----------------------------------
Kirk P. Pond
President and Chief
Executive Officer
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<PAGE> 9
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.
Signature Title Date
s/ * President, Chief Executive June 1, 1999
- ------------------------------ Officer and Director
Kirk P. Pond
s/ * Executive Vice President, June 1, 1999
- ------------------------------ Chief Financial Officer
Joseph R. Martin and Director
s/ * Director June 1, 1999
- ------------------------------
Richard M. Cashin, Jr.
Director
- ------------------------------
Brian L. Halla
s/ * Director June 1, 1999
- ------------------------------
William N. Stout
s/ * Director June 1, 1999
- -------------------------------
Paul C. Schorr, IV
- ----------------------
* By Kirk P. Pond, Attorney-in-Fact
<PAGE> 10
Exhibit Index
Exhibit
Number Description
- ------ -----------
4.1(2) Certificate of Incorporation of the Registrant
4.2(2) Bylaws of the Registrant
4.3(3) Certificate of Amendment to Certificate of Incorporation of
the Registrant
4.4(1) Amended and Restated Stock Option Plan, effective as of
January 5, 1998, as amended through May 17, 1999
5.1(1) Opinion of Pierce Atwood
23.1(1) Consent of Pierce Atwood (included in Exhibit 5.1)
23.2(1) Consent of KPMG LLP
24.1(4) Power of Attorney
- ----------
(1) Filed herewith.
(2) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-4 (File No. 333-26897).
(3) Incorporated by reference from the Registrant's Registration statement on
Form S-8 (File No. 333-58603).
(4) Previously filed.
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<PAGE> 1
Exhibit 4.4
FSC SEMICONDUCTOR CORPORATION
AMENDED AND RESTATED
STOCK OPTION PLAN
1. TITLE OF PLAN
The title of this Plan is the FSC Semiconductor Corporation Stock
Option Plan, hereinafter referred to as the "Plan".
2. PURPOSE
FSC Semiconductor established the FSC Semiconductor Corporation Stock
Option Plan effective as of March 10, 1997. This document is an amendment and
complete restatement of the Plan, effective January 5, 1998.
The Plan is intended to align the interests of eligible key employees
of FSC Semiconductor Corporation (hereinafter called the "Corporation") and its
subsidiaries (as hereinafter defined) with the interests of the stockholders of
the Corporation and to provide incentives for such employees to exert maximum
efforts for the success of the Corporation. By extending to key employees the
opportunity to acquire proprietary interests in the Corporation and to
participate in its success, the Plan may be expected to benefit the Corporation
and its stockholders by making it possible for the Corporation to attract and
retain the best available talent and by rewarding key management and technical
personnel for their part in increasing the value of the Corporation's shares. It
is further intended that options granted pursuant to this Plan may be incentive
stock options under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), or may be options which are not incentive stock options (hereafter
called "non-qualified stock options").
3. STOCK SUBJECT TO THE PLAN
There will be reserved for issue upon the exercise of options granted
under the Plan 6,084,000 shares of the Corporation's Class A Common Stock, par
value $.01 per share, subject to adjustment as provided in Paragraph 8, which
may be unissued shares, reacquired shares, or shares bought on the market. If
any option, which shall have been granted, shall expire or terminate for any
reason without having been exercised in full, the unpurchased shares shall again
become available for the purposes of the Plan (unless the Plan shall have been
terminated).
4. ADMINISTRATION
(a) The Plan shall be administered by a committee of the Board of
Directors of the Corporation (the "Committee"), consisting of two or more
members of the Board of Directors. The Committee shall be constituted to permit
the Plan to comply with (i) Rule 16b3 promulgated
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under the Securities Exchange Act of 1934 ("Exchange Act") and any successor
rule and (ii) IRS regulations issued under Section 162(m) of the Code.
(b) The Committee shall have the plenary power, subject to and within
the limits of the express provisions of the Plan:
(i) To determine from time to time which of the eligible
persons shall be granted options under the Plan; the time or times (during the
term of the option) within which all or portions of each option may be exercised
and the number of shares for which an option or options shall be granted to each
of them.
(ii) To construe and interpret the Plan and options granted
under it, and to establish, amend, and revoke rules and regulations for its
administration. The Committee, in the exercise of this power, shall generally
determine all questions of policy and expediency that may arise, may correct any
defect, or supply any omission or reconcile any inconsistency in the Plan or in
any option agreement in a manner and to the extent it shall deem necessary or
expedient to make the Plan fully effective.
(iii) To prescribe the terms and provisions of each option
granted (which need not be identical).
(iv) To determine whether options granted shall be incentive
stock options or non-qualified stock options.
(v) To determine whether options granted shall be transferable
without consideration to immediate family members or family trusts for the
benefit of optionee's immediate family members. As used herein, "immediate
family" means parents, spouses and children.
(c) The Committee shall not have the authority to grant new options in
exchange for the cancellation of stock options previously granted under the Plan
or under any other stock option plan of the Corporation.
5. ELIGIBILITY
Options may be granted only to regular salaried officers and key
employees of the Corporation and its subsidiaries. The term "subsidiary"
corporation shall mean any corporation in which the Corporation controls,
directly or indirectly, fifty percent (50%) or more of the combined voting power
of all classes of stock. A director of the Corporation shall not be eligible for
the benefits of the Plan unless such person also is a regular salaried employee
of the Corporation and/or of any subsidiary.
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6. TERMS OF OPTION AND OPTION AGREEMENTS
Each option shall be evidenced by a written Stock Option Agreement
which shall expressly identify the options as incentive stock options or as
non-qualified stock options, and be in such form and contain such provisions as
the Committee shall from time to time deem appropriate; provided, however, that
the grant of a non-qualified option pursuant to this Plan shall in no way be
construed to be an alternative to the right of an employee to purchase stock
pursuant to any incentive stock option heretofore or hereafter granted to an
employee pursuant to any stock option plans now in existence or hereafter
adopted by the Corporation. The terms of the option agreements need not be
identical, but each option agreement shall include, by appropriate language, or
be subject to, the substance of all of the applicable following provisions:
(a) The purchase price under each option granted shall be as determined
by the Committee but, in the case of incentive stock options, shall in no
instance be less than 100% of fair market value on the date of grant. The fair
market value on the date of grant shall be determined by the Committee;
provided, however, that (i) if the Common Stock is admitted to quotation on the
National Association of Securities Dealers Automated Quotation System on the
date the option is granted, fair market value shall not be less than the average
of the highest bid and lowest asked prices of the Common Stock on such System on
such date or the last date preceding such date on which a sale was reported, or
(ii) if the Common Stock is admitted to trading on a national securities
exchange on the date the option is granted, fair market value shall not be less
than the last sale price reported for the Common Stock on such exchange on such
date or, if there was no sale on such date, the last date preceding such date on
which a sale was reported.
(b) The maximum term of any incentive stock option shall be ten years
from the date it was granted.
(c) The maximum term of any non-qualified stock option shall be ten
years and one day from the date it was granted.
(d) An option may not be exercised to any extent, either by the person
to whom it was granted or by the grantee's transferee, or by any person after
the grantee's death, unless the person to whom the option was granted has
remained in the continuous employ of the Corporation, or of a subsidiary, for
not less than six months from the date when the option was granted. Otherwise,
each option shall be exercisable as determined by the Committee.
(e) The Corporation, during the terms of options granted under the
Plan, at all times will keep available the number of shares of stock required to
satisfy such options.
(f) The Corporation will seek to obtain from each regulatory commission
or agency having jurisdiction such authority as may be required to issue and
sell shares of stock to satisfy such options. Inability of the Corporation to
obtain from any such regulatory commission or agency authority which counsel for
the Corporation deems necessary for the lawful issuance and
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sale of its stock to satisfy such options shall relieve the Corporation from any
liability for failure to issue and sell stock to satisfy such options pending
the time when such authority is obtained or is obtainable.
(g) Neither a person to whom an option is granted nor his or her
transferee, legal representative, heir, legatee, or distributee, shall be deemed
to be the holder of, or to have any of the rights of a holder with respect to,
any shares subject to such option unless and until he or she has exercised his
or her option pursuant to the terms thereof.
(h) In order to be exempt under Section 16 of the Exchange Act and
qualify as an incentive stock option, the option may not be transferable except
by will or by the laws of descent or distribution, and during the lifetime of
the person to whom the option is granted he or she alone may exercise it.
(i) An option shall terminate and may not be exercised if the person to
whom it is granted ceases to be continuously employed by the Corporation, or by
a subsidiary of the Corporation, except (subject nevertheless to the last
sentence of this subparagraph (i)): (1) if the grantee's continuous employment
is terminated for any reason other than (i) retirement, (ii) permanent
disability, or (iii) death, the grantee or the grantee's transferee may exercise
the option to the extent that the grantee was entitled to exercise such option
at the date of such termination at any time within a period of three (3) months
following the date of such termination, or if the grantee shall die within the
period of three (3) months following the date of such termination without having
exercised such option, the option may be exercised within a period of one year
following the grantee's death by the grantee's transferee or the person or
persons to whom the grantee's rights under the option pass by will or by the
laws of descent or distribution but only to the extent exercisable at the date
of such termination; (2) if the grantee's continuous employment is terminated by
(i) retirement, (ii) permanent disability, or (iii) death, the option may be
exercised in accordance with its terms and conditions at any time within a
period of five (5) years following the date of such termination by the grantee
or the grantee's transferee, or in the event of the grantee's death, by the
persons to whom the grantee's rights under the option shall pass by will or by
the laws of descent or distribution; (3) if the grantee's continuous employment
is terminated and within a period of ninety (90) days thereafter the grantee is
recalled to the active payroll, the Committee may reinstate any portion of the
option previously granted but not exercised. Nothing contained in this
subparagraph (i) is intended to extend the stated term of the option and in no
event may an option be exercised by anyone after the expiration of its stated
term.
(j) Option agreements evidencing incentive stock options shall contain
such terms and provisions as may be necessary to render them incentive stock
options pursuant to Section 422 of the Code and the income tax regulations
thereunder, as the same or any successor statute or regulations may at the time
be in effect.
(k) Nothing in this Plan or in any option granted hereunder shall
confer on any optionee any right to continue in the employ of the Corporation or
any of its subsidiaries, or to
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interfere in any way with the right of the Corporation or any of its
subsidiaries to terminate his or her employment at any time.
7. TIME OF GRANTING OPTION
The Committee shall determine the date on which options are granted
under the Plan. All options granted must be approved at a meeting of the
Committee by a majority of the members of the Committee. If an option agreement
is not executed by an employee and returned to the Corporation on or prior to
ninety (90) days after the date the option is granted (or such earlier date as
the Committee may specify), such option shall terminate.
8. ADJUSTMENT IN NUMBER OF SHARES AND IN OPTION PRICE
In the event there is any change in the shares of the Corporation
through the declaration of stock dividends or a stock split-up, or through
recapitalization resulting in share split-ups, or combinations or exchanges of
shares, or otherwise, the number of shares available for option, as well as the
shares subject to any option and the option price thereof, shall be
appropriately adjusted by the Committee.
9. PAYMENT OF PURCHASE PRICE AND WITHHOLDING TAXES
(a) The purchase price for all shares purchased pursuant to options
exercised must be either paid in full in cash, or paid in full, with the consent
of the Committee, in Common Stock of the Corporation valued at fair market value
on the date of exercise or a combination of cash and Common Stock. Fair market
value on the date of exercise shall be determined in the same manner as provided
in Section 6(a) hereof.
(b) The Committee may permit the payment of all or part of the
applicable withholding taxes due upon exercise of an option, up to the highest
marginal rates then in effect, by the withholding of shares otherwise issuable
upon exercise of the option. Option shares withheld in payment of such taxes
shall be valued at the fair market value of the Corporation's Common Stock on
the date of exercise as provided in Section 6(a) hereof.
10. CHANGE IN CONTROL
In the event the Corporation is merged into or acquired by another
entity in a transaction involving a change in control, the Committee shall have
the complete authority and discretion, but not the obligation, to accelerate the
vesting of any outstanding options granted hereunder. The Committee may also ask
the Board of Directors to negotiate, as part of any agreement involving a sale
or merger of the Corporation, a sale of substantially all the Corporation's
assets or similar transaction, terms providing protection for employees holding
options under the Plan.
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11. AMENDMENT, SUSPENSION, OR TERMINATION OF THE PLAN
(a) The Board may amend, modify, suspend or terminate the Plan for the
purpose of meeting or addressing any changes in legal requirements or for any
other purpose permitted by law. The Board will seek stockholder approval of an
amendment if determined to be required by or advisable under regulations of the
Securities and Exchange Commission or the Internal Revenue Service, the rules of
any stock exchange on which the Corporation's stock is listed, or other
applicable law or regulation.
(b) The Plan shall continue in effect until all shares available for
issuance under the Plan have been issued. An option may not be granted while the
Plan is suspended or after it is terminated.
(c) The rights and obligations under any options granted while the Plan
is in effect shall not be altered or impaired by amendment, suspension or
termination of the Plan, except with the consent of the person to whom the
option was granted or the grantee's transferee or the person to whom rights
under an option shall have passed by will or by the laws of descent and
distribution.
12. EFFECTIVE DATE
The Plan was originally established effective on March 10, 1997, as a
result of the reorganization of the three Fairchild divisions of National
Semiconductor Corporation (the Discrete, Logic and Memory divisions) and was
approval by the stockholders of the Corporation within twelve (12) months after
said date. This amendment and complete restatement of the Plan is effective
January 5, 1998 (as further amended on May 14, 1999) and applies to any option
grant made on or after that date.
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Exhibits 5.1 and 23.1
June 1, 1999
FSC Semiconductor Corporation
333 Western Avenue
South Portland, Maine 04106
Re: Stock Option Plan
Dear Sirs:
We have assisted in the preparation of Amendment No. 1 to its Registration
Statement on Form S-8 (File No. 333-35347) (as so amended, the "Registration
Statement") to be filed with the Securities and Exchange Commission relating to
6,084,000 shares of Class A Common Stock, par value $.01 per share (the
"Shares"), of FSC Semiconductor Corporation, a Delaware corporation (the
"Company"), issuable upon exercise of options granted or to be granted under the
Company's Stock Option 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 the
Company has duly authorized for issuance the Shares covered by the Registration
Statement issued or to be issued under 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.
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> 1
Exhibit 23.2
The Board of Directors
FSC Semiconductor Corporation:
We consent to the inclusion of our reports dated June 16, 1998, except as to
Note 19, which is as of July 20, 1998, with respect to the consolidated balance
sheets of FSC Semiconductor Corporation as of May 31, 1998 and May 25, 1997,
and the related consolidated and combined statements of operations and
stockholders' equity (deficit) for each of the years in the three-year period
ended May 31, 1998, and the related consolidated statement of cash flows for
the year ended May 31, 1998, and the related schedule, which reports are
incorporated by reference in this Registration Statement on Form S-8.
As discussed in Note 18 in the financial statements, the Company changed its
method of accounting for business process reengineering costs in 1998 to adopt
the provisions of the Emerging Issues Task Force Issue 97-13, "Accounting for
Business Process Reengineering Costs."
KPMG LLP
Boston, Massachusetts
May 27, 1999
