AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 26, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GENERAL SEMICONDUCTOR, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 13-3575653
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NUMBER)
10 Melville Park Road
Melville, New York 11747
(516) 847-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
Stephen B. Paige, Esq.
Senior Vice President, General Counsel and Secretary
GENERAL SEMICONDUCTOR, INC.
10 Melville Park Road
Melville, New York 11747
(516) 847-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE,
OF AGENT FOR SERVICE)
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COPIES OF ALL COMMUNICATIONS, INCLUDING COMMUNICATIONS SENT TO AGENT FOR
SERVICE, SHOULD BE SENT TO:
Lois Herzeca, Esq.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
One New York Plaza
New York, New York 10004
(212) 859-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: AS SOON AS
PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE
FOLLOWING BOX. |_|
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE
OFFERED ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE
SECURITIES ACT OF 1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION
WITH DIVIDEND OR INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. |X|
IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR AN
OFFERING PURSUANT TO RULE 462(B) UNDER THE SECURITIES ACT, PLEASE CHECK THE
FOLLOWING BOX AND LIST THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF
THE EARLIER EFFECTIVE REGISTRATION STATEMENT FOR THE SAME OFFERING. |_|
IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO RULE
462(C) UNDER THE SECURITIES ACT, CHECK THE FOLLOWING BOX AND LIST THE
SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE
REGISTRATION STATEMENT FOR THE SAME OFFERING. |_|
IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE PURSUANT TO RULE
434, PLEASE CHECK THE FOLLOWING BOX. |_|
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------
Title of Amount to be Proposed Proposed Amount of
Shares Registered Maximum Maximum Registration
to be Aggregate Aggregate Fee
Registered Price Per Offering Price
Unit (2) (2)
- ---------------------------------------------------------------------------
Common Stock,
$.01 par value 5,427,166 $ 7.0313 $ 38,160,032 $ 11,251.00
(1)
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(1) This registration statement covers the distribution of the shares
registered by the Partnerships to the Selling Stockholders (as such
terms are defined in the Prospectus) and the resale by the Selling
Stockholders of the shares registered.
(2) Estimated in accordance with Rule 457 of Regulation C under the
Securities Act of 1933, as amended, solely for the purpose of
determining the registration fee. The above calculation is based on
the average of the high and low sale prices of the Common Stock
reported by the New York Stock Exchange on August 25, 1998.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND
EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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EXPLANATORY NOTE
This Registration Statement covers the distribution of 5,427,166
shares of Common Stock, par value $.01 per share, of General Semiconductor,
Inc., a Delaware corporation, by the Partnerships to the Selling
Stockholders (as such terms are defined in the Prospectus) and the resale
of such shares by the Selling Stockholders. The same Prospectus is being
utilized with respect to both the distribution and the resale of the shares
registered.
SUBJECT TO COMPLETION, DATED AUGUST 26, 1998
5,427,166 Shares
GENERAL SEMICONDUCTOR, INC.
Common Stock
(par value $.01 per share)
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The 5,427,166 shares of Common Stock, par value $.01 per share (the
"Common Stock"), of General Semiconductor, Inc., a Delaware corporation
(the "Company"), are being offered by the Selling Stockholders named
herein. See "Selling Stockholders" and "Plan of Distribution." These shares
represent approximately 14.7% of the total number of shares of Common Stock
outstanding as of July 15, 1998. On August 25, 1998, the last reported sale
price of the Common Stock, listed under the symbol "SEM", on the New York
Stock Exchange ("NYSE") was $7.00 per share.
---------------
SEE "RISK FACTORS," BEGINNING ON PAGE 4, FOR A DISCUSSION OF CERTAIN
FACTORS WHICH SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON
STOCK OFFERED HEREBY.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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Selling Stockholders may sell the shares being offered hereby in
transactions on the NYSE, in negotiated transactions or otherwise, at
market prices prevailing at the time of the sale or at negotiated or fixed
prices. Selling Stockholders may sell some or all of the shares in
transactions involving broker-dealers, who may act either as agent or
principal. To the extent required, the aggregate amount of Common Stock
being offered and the terms of the offering, the names of the Selling
Stockholders, the names of any such agents, dealers or underwriters and any
applicable commission with respect to a particular offer will be set forth
in an accompanying Prospectus Supplement. The aggregate proceeds to the
Selling Stockholders from the sale of the Common Stock will be the selling
price of the Common Stock sold less the aggregate agents' commissions and
underwriters' discounts, if any, and other expenses of issuance and
distribution not borne by the Company. The Company will pay substantially
all of the expenses to be incurred, including those to be incurred by the
Selling Stockholders, in connection with the Registration Statement of
which this Prospectus is a part (other than such commissions and
discounts), estimated to be $120,000. See "Selling Stockholders" and "Plan
of Distribution" herein for a description of indemnification arrangements
between the Company and the Selling Stockholders and possible
indemnification arrangements for agents, dealers and underwriters. None of
the proceeds from the sale of the Common Stock will be received by the
Company.
The Selling Stockholders and any agents, dealers or underwriters that
participate with the Selling Stockholders in the distribution of the Common
Stock may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), and any
commissions received by them and any profit on the resale of the Common
Stock purchased by them may be deemed underwriting commissions or discounts
under the Securities Act.
THE DATE OF THIS PROSPECTUS IS , 1998.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports and other information, as well as the Registration Statement and
the consolidated financial statements, schedules and exhibits thereto, may
be inspected and copied at the offices of the Commission at 450 Fifth
Street, N.W., Washington D.C. 20549 and at the following regional offices
of the Commission: 7 World Trade Center, Suite 1300, New York, New York
10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material or any part thereof may also be
obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington D.C. 20549 at prescribed rates. The Commission
also maintains a Web site (http://www.sec.gov) from which such reports,
proxy statements and other information concerning the Company may be
obtained. The Common Stock is traded on the NYSE and such reports and other
information may also be inspected at the offices of the NYSE, 20 Broad
Street, New York, NY 10005.
The Company has filed with the Commission in Washington, D.C. a
Registration Statement (of which this Prospectus is a part and which term
shall encompass any amendments thereto) on Form S-3 under the Securities
Act with respect to the Common Stock offered hereby. This Prospectus does
not contain all of the information set forth in the Registration Statement
and the exhibits and schedules thereto, certain portions of which have been
omitted as permitted by the rules and regulations of the Commission.
Statements contained herein concerning the provisions of any document are
not necessarily complete; reference is made to the exhibits for a more
complete description of the matters involved, and each such statement shall
be deemed qualified in its entirety by such reference. For further
information pertaining to the shares offered hereby and to the Company,
reference is made to the Registration Statement, including the consolidated
financial statements, schedules and exhibits filed as a part thereof and
incorporated therein by reference.
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a
copy of any and all of the information that has been or may be incorporated
by reference in this Prospectus, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference into such
documents). Such requests should be directed to General Semiconductor,
Inc., Attention: Secretary, 10 Melville Park Road, Melville, NY 11747
(telephone (516) 847-3000).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, its Current Reports on Form 8-K, dated July 1, 1998 and
July 22, 1998, its Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1998 and June 30, 1998 and the description of its Common
Stock set forth in its Form 8-A, dated April 17, 1992, as amended, and all
documents incorporated by reference therein, all of which have been filed
with the Commission, are hereby incorporated by reference into this
Prospectus. All documents filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and prior to the termination of the offering covered by
this Prospectus will be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in any document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
CAUTIONARY STATEMENT FOR PURPOSES OF "SAFE HARBOR" PROVISIONS
OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
This Registration Statement contains forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995 which
reflect, among other things, the Company's current views with respect to
its prospects, its future performance and future events, all of which are
subject to risks and uncertainties. These forward-looking statements are
identified by their use of such terms and phrases as "intends", "intend",
"intended", "goal", "estimate", "estimates", "expects", "expect",
"expected", "project", "projects", "projected", "projections", "plans",
"anticipates", "anticipated", "should", "designed to", "foreseeable
future", "believe", "believes", "scheduled" and similar expressions.
Readers are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date the statement was made. The
Company undertakes no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
The actual results of the Company may differ significantly from the
results discussed in the forward-looking statements. Factors that might
cause such a difference include (i) the factors discussed under "Risk
Factors", and (ii) the following factors: (a) the general political,
economic and competitive conditions in the United States, Taiwan (Republic
of China), the People's Republic of China, Ireland, Germany, France and
other markets where the Company operates; (b) changes in capital
availability or costs, such as changes in interest rates, market
perceptions of the industry in which the Company operates, or security
ratings; (c) uncertainties relating to customer plans and commitments; (d)
employee workforce factors; (e) authoritative generally accepted accounting
principles or policy changes from such standard-setting bodies as the
Financial Accounting Standards Board and the Securities and Exchange
Commission.
THE COMPANY
The Company is a world leader in the discrete segment of the
semiconductor industry. The Company designs, manufactures and sells
low-to-medium-power rectifiers, small signal transistors and transient
voltage suppression ("TVS") components in axial, bridge, surface mount and
array packages. Power rectifiers, small signal devices and TVS products are
semiconductors that are essential components of most electronic devices and
systems. Rectifiers convert alternating current (AC) into direct current
(DC) which can be utilized by electronic equipment. TVS devices provide
protection from electrical surges, ranging from electrostatic discharge to
induced lightning. Small signal devices amplify or switch low level
currents. The Company's products are primarily targeted for use in the
computer, automotive, telecommunications, lighting and consumer
electronics.
The Company's principal executive offices are located at 10 Melville
Park Road, Melville, New York 11747, and the telephone number of the
Company is (516) 847-3000.
RISK FACTORS
In addition to the matters described in the documents incorporated by
reference herein, the following Risk Factors should be considered by
prospective purchasers of the Common Stock offered hereby:
FACTORS RELATING TO THE DISTRIBUTION
On January 7, 1997, the Board of Directors of General Instrument
Corporation ("GI") approved a plan to divide GI into three separate public
companies. To effect the transaction, GI (i) transferred all the assets and
liabilities relating to the manufacture and sale of broadband
communications products used in the cable television, satellite, and
telecommunications industries and all rights to the related GI trademarks
to its wholly-owned subsidiary NextLevel Systems, Inc. ("NextLevel
Systems") and all the assets and liabilities relating to the manufacture
and sale of coaxial, fiber optic and other electric cable used in the cable
television, satellite and other industries to its wholly-owned subsidiary
CommScope, Inc. ("CommScope") and (ii) then distributed all of the ordinary
shares of capital stock of each of NextLevel Systems and CommScope to its
stockholders on a pro rata basis as a dividend (the "Distribution"), in a
transaction that was consummated on July 28, 1997 (the "Distribution
Date"). The Company retained all the assets and liabilities relating to the
manufacture and sale of discrete power rectifiers and transient voltage
suppression components used in telecommunications, automotive and consumer
electronics products. On the Distribution Date, NextLevel Systems and
CommScope began operating as independent entities with publicly traded
common stock. GI retained no ownership interest in either NextLevel Systems
or CommScope. Concurrently with the Distribution, GI changed its name to
General Semiconductor, Inc. and effected a one for four reverse stock
split. On February 2, 1998, NextLevel Systems changed its name to General
Instrument Corporation.
The Distribution Agreement dated as of June 12, 1997, among GI,
General Instrument Corporation, and CommScope (the "Distribution
Agreement") and certain other agreements executed in connection with the
Distribution (collectively, the "Ancillary Agreements") allocate among the
Company, General Instrument Corporation and CommScope, and their respective
subsidiaries, responsibility for various indebtedness, liabilities and
obligations. It is possible that a court would disregard this contractual
allocation of indebtedness, liabilities and obligations among the parties
and require the Company or its subsidiaries to assume responsibility for
obligations allocated to another party, particularly if such other party
were to refuse or was unable to pay or perform any of its allocated
obligations.
Pursuant to the Distribution Agreement and certain of the Ancillary
Agreements, the Company has agreed to indemnify the other parties (and
certain related persons) from and after consummation of the Distribution
with respect to certain indebtedness, liabilities and obligations, which
indemnification obligations could be significant.
Although GI has received a favorable ruling from the Internal Revenue
Service, if the Distribution were not to qualify as a tax free spin-off
(either because of the nature of the Distribution or because of events
occurring after the Distribution) under Section 355 of the Internal Revenue
Code of 1986, as amended, then, in general, a corporate tax would be
payable by the consolidated group of which the Company was the common
parent based upon the difference between the fair market value of the stock
distributed and the distributing corporation's adjusted basis in such
stock. The corporate level tax would be payable by the Company and could
substantially exceed the net worth of the Company. However, under certain
circumstances, General Instrument Corporation and CommScope have agreed to
indemnify the Company for such tax liability. In addition, under the
consolidated return rules, each member of the consolidated group (including
General Instrument Corporation and CommScope) is severally liable for such
tax liability.
LEVERAGE; CERTAIN RESTRICTIONS UNDER CREDIT FACILITIES
The Company is substantially more leveraged than GI was prior to the
Distribution. The degree to which the Company is leveraged could have
important consequences, including the following: (i) the Company's ability
to obtain additional financing in the future for working capital, capital
expenditures, product development, acquisitions, general corporate purposes
or other purposes may be impaired; (ii) a portion of the Company's and its
subsidiaries' cash flow from operations must be dedicated to the payment of
the principal of and interest on its indebtedness; (iii) the Credit
Agreement, dated as of July 23, 1997, among the Company, certain banks, and
The Chase Manhattan Bank, as Administrative Agent, contains certain
restrictive financial and operating covenants, including, among others,
requirements that the Company satisfy certain financial ratios; (iv) a
significant portion of the Company's borrowings will be at floating rates
of interest, causing the Company to be vulnerable to increases in interest
rates; (v) the Company's degree of leverage may make it more vulnerable to
a downturn in general economic conditions; and (vi) the Company's degree of
leverage may limit its flexibility in responding to changing business and
economic conditions.
In addition, in a lawsuit by an unpaid creditor or representative of
creditors, such as a trustee in bankruptcy, a court may be asked to void
the Distribution (in whole or in part) as a fraudulent conveyance and to
require that the stockholders return the special dividend (in whole or in
part) to the Company or require the Company to fund certain liabilities of
General Instrument Corporation and CommScope for the benefit of creditors.
COMPETITION
The Company operates in the discrete segment of the semiconductor
business. Its products are commodity-like in nature and are subject to
cyclical variations in pricing and capacity utilization levels.
The Company is subject to competition from a substantial number of
foreign and domestic companies, some of which have greater financial,
engineering, manufacturing and other resources, or offer a broader product
line, than the Company. The Company's competitors can be expected to
continue to improve the design and performance of their products and to
introduce new products with competitive price and performance
characteristics. Although the Company believes that it enjoys certain
technological and other advantages over its competitors, realizing and
maintaining such advantages will require continued investment by the
Company in engineering, research and development, marketing and customer
service and support. There can be no assurance that the Company will have
sufficient resources to continue to make such investments or that the
Company will be successful in maintaining such advantages.
INTERNATIONAL OPERATIONS
A significant portion of the Company's products are manufactured or
assembled in Taiwan (Republic of China), the People's Republic of China,
Ireland, Germany, and France. These foreign operations are subject to the
usual risks inherent in situating operations abroad, including risks with
respect to currency exchange rates, economic and political destabilization,
restrictive actions by foreign governments, nationalizations, the laws and
policies of the United States affecting trade, foreign investment and
loans, and foreign tax laws. The Company's cost-competitive status relative
to other competitors could be adversely affected if the Company experiences
unfavorable movements in foreign currency rates. In addition, a substantial
portion of the annual sales of the Company's business are outside of the
United States.
Sales to the Asia Pacific region accounted for approximately 40% of
the Company's worldwide sales for the year ended December 31, 1997. Recent
order trends and average selling prices have weakened significantly
reflecting the current economic and currency difficulties in Southeast
Asia, the economic slowdown in Japan and the difficulties in the computer
peripherals industries. However, approximately 50% of the Company's
production is currently in Taiwan, the cost of which has benefited from the
weakened New Taiwan dollar in relation to the U.S. dollar. Additionally,
extended underutilization of the Company's manufacturing facilities,
resulting in production inefficiency could result in further margin
deteriorization. There can be no assurance as to the extent or duration of
the impact of these events on the Company.
ENVIRONMENT
The Company is subject to various federal, state, local and foreign
laws and regulations governing environmental matters, including the use,
discharge and disposal of hazardous materials. The Company's manufacturing
facilities are believed to be in substantial compliance with current laws
and regulations. Complying with current laws and regulations has not had a
material adverse effect on the Company's financial condition. In connection
with the Distribution, the Company retained the obligations with respect to
environmental matters relating to the Company's discontinued operations and
its status as a "potentially responsible party." The Company is involved in
remediation programs, principally with respect to former manufacturing
sites, which are proceeding in connection with federal and state regulatory
oversight. Accordingly, the Company is currently named as a "potentially
responsible party" with respect to the disposal of hazardous wastes at nine
hazardous waste sites located in six states.
The Company has engaged independent consultants to assist management
in evaluating potential liabilities related to environmental matters.
Management assesses the input from these independent consultants along with
other information known to the Company in its effort to continually monitor
these potential liabilities. Management assesses its environmental exposure
on a site-by-site basis, including those sites where the Company has been
named a "potentially responsible party." Such assessments include the
Company's share of remediation costs, information known to the Company
concerning the size of the hazardous waste sites, their years of operation
and the number of past users and their financial viability. The Company has
recorded a reserve for environmental matters of $32.9 million at June 30,
1998 ($34.9 million at December 31, 1997).
While the ultimate outcome of these matters cannot be determined,
management does not believe that the final disposition of these matters
will have a material adverse effect on the Company's financial position,
results of operations or cash flows beyond the amounts previously provided
for in the financial statements.
The Company's present and past facilities have been in operation for
many years, and over that time in the course of those operations, such
facilities have used substances which are or might be considered hazardous,
and the Company has generated and disposed of wastes which are or might be
considered hazardous. Therefore, it is possible that additional
environmental issues may arise in the future which the Company cannot now
predict.
USE OF PROCEEDS
The shares of Common Stock covered by this Prospectus are offered for
the account of the Selling Stockholders. The Company will not receive any
of the proceeds from the sale of Common Stock offered hereby. See "Selling
Stockholders."
SELLING STOCKHOLDERS
The Selling Stockholders consist of individuals, corporations, trusts
and other entities that, prior to the FL Distribution (as defined below),
have undivided interests in the Partnerships (as defined below) as
discussed in "Plan of Distribution." As a result of the FL Distribution,
the shares held by the Partnerships will be distributed to and held by the
Selling Stockholders for their own accounts, as indicated below. Except for
Steven B. Klinsky, Nicholas C. Forstmann and Theodore J. Forstmann, who are
or were directors of the Company or GI, none of the Selling Stockholders
has held a position, office or had a material relationship with the Company
within the past three years other than, in certain cases, as a result of
the ownership of the Common Stock and the ownership of interests in the
Partnerships. Nicholas C. Forstmann and Theodore J. Forstmann resigned as
directors of GI in connection with the Distribution. Steven B. Klinsky is
resigning as a director of the Company prior to the FL Distribution.
The following table sets forth for each Selling Stockholder the number
of shares of Common Stock beneficially owned, as of July 15, 1998, after
giving pro forma effect to the FL Distribution. Except as specifically
indicated in the notes to the table, this Prospectus covers the offering by
the Selling Stockholders of all of the shares listed in the table, and if
all of such shares are sold by the Selling Stockholders, the Selling
Stockholders will no longer own any shares of Common Stock (other than
shares, if any, purchased after the date hereof):
Shares
Beneficially
Owned Following
FL Distribution
------------------------
Name Number (1) Percent (2)
- ---- ---------- -----------
Acquavella, William R.
Armfield, IV, William J.
BankAmerica Capital Corporation
Bankers Trust Company as
Trustee for the GTE Service
Corporation Plans for Employees'
Pensions
Bergerac, Michel C.
Billings, Judith A.
Boston Safe Deposit and Trust Company
as Trustee for the Employee Retirement
Income Plan Trust of Minnesota
Mining and Manufacturing Company
Broad, Eli
Capiltech Holding Corp.
The Chase Manhattan Bank, as Directed
Trustee for the IBM Retirement Plan
Trust
Citibank F.S.B., solely as Directed
Trustee of the Delta Master Trust
Clements, W.W.
District of Columbia Retirement Board
The Estate of J. Wade Kincaid
FLC Partnership
FLC XXII Partnership
Forstmann, Anthony J.
Forstmann, Nicholas C.
Forstmann, Theodore J.
General Electric Pension Trust
Hausman, Richard P.
Herbert, Gavin S.
Hillman/Dover Limited Partnership
Hutchins, Winston W.
Hutchins, Winston W., IRA of
Indofin Partners, L.P.
Johnston, Robert F.
Kellner, George A.
Kincaid, Steven M.
Klinsky, Steven B.
Kodak Retirement Income Plan
Lapham, Jr., Roger
Lawrence, Lilly
Leach, Howard
Leeway & Co. c/o State Street Bank
& Trust Company
Leff, Joel B.
Lehrman, Lewis
Lewis, Drew
Little, Gregory S.
Little, Jacqueline P.
Little, Judith A.
Little, Wm. Brian
Little, The IRA of Wm. Brian
The London Mortgage Trust Limited
McMicking Ventures I
Merifin Partners L.P.
Morosky, Robert
Northern Trust Company as trustee for
the TI Employees Pension Trust
O'Neill, Jr., H.M.
Ophelia Holdings Inc.
Penske, Roger S.
Schnabel, Rockwell A., IRA of
Shorin, Arthur T.
Sisler, Constance R.
Sprague, John A.
State of Wisconsin Investment Board
Tinicum Investors
Transom Investments N.V.
United Technologies Corporation
Master Retirement Trust
Yontz, Kenneth F.
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* The percentage of shares of Common Stock beneficially owned is less
than one percent of the outstanding shares of Common Stock.
(1) Includes the following number of shares in addition to the shares
being distributed from the Partnerships: Boston Safe Deposit and Trust
Company as Trustee for the Employee Retirement Income Plan Trust of
Minnesota Mining and Manufacturing Company, 123,156 shares; Steven B.
Klinsky, 50,000 shares; Kodak Retirement Income Plan, 88,700 shares;
Leeway & Co. c/o State Street Bank & Trust Company, 525,253 shares (as
of July 22, 1998); State of Wisconsin Investment Board, 2,339,000
shares; Tinicum Investors, 70,000 shares. These shares are not being
offered pursuant to this Prospectus and (unless sold otherwise than
pursuant to this Prospectus) will continue to be beneficially owned by
such Selling Stockholders following the sale of all shares offered
hereby.
(2) Based on 36,924,126 shares outstanding as of July 15, 1998.
PLAN OF DISTRIBUTION
On [ ], 1998, Forstmann Little & Co. Subordinated Debt and Equity
Management Buyout Partnership-IV ("MBO-IV") and Instrument Partners
("Instrument Partners" and, together with MBO-IV, the "Partnerships") which
owned beneficially approximately 6.9% and 7.8% of the outstanding shares of
Common Stock, respectively, will distribute, pursuant to the Registration
Statement of which this Prospectus is a part (the "FL Distribution"), all
of the shares of Common Stock owned by each of them to their respective
partners. In certain instances, some of the partners of the Partnerships
will further distribute such shares of Common Stock to their ultimate
beneficial owners, all of which shares are being offered for sale hereby.
The distributees of the shares of Common Stock previously owned by the
Partnerships are hereinafter collectively referred to as the "Selling
Stockholders," each of whose name and share ownership is set forth under
the caption "Selling Stockholders." The Company has agreed to register
under the Securities Act the shares of Common Stock being sold by the
Selling Stockholders. The Company will pay substantially all of the
expenses to be incurred by the Selling Stockholders in connection with the
Registration Statement of which this Prospectus is a part (other than
commissions and discounts), estimated to be $120,000. The Company will not
receive any proceeds from this offering. The Company has agreed to
indemnify the Selling Stockholders and their agents, underwriters and
dealers against certain civil liabilities, including certain liabilities
under the Securities Act.
Selling Stockholders may sell the shares being offered hereby in
transactions on the NYSE, in negotiated transactions or otherwise, at
market prices prevailing at the time of the sale or at negotiated or fixed
prices. Selling Stockholders may sell some or all of the shares in
transactions involving broker-dealers (including, among others, Merrill
Lynch & Co., who will initially be acting as custodian with respect to some
of the shares distributed to the Selling Stockholders), who may act either
as agent or principal, and who may receive compensation in the form of
discounts, commissions or concessions from Selling Stockholders or the
purchaser of shares for whom such broker-dealers act as agent or to whom
they sell as principal, or both.
At the time a particular offer of shares of Common Stock is made, a
Prospectus Supplement will be distributed, to the extent required, which
will set forth the aggregate number of shares of Common Stock being offered
and the material terms of the offering, including the name or names of any
underwriters, dealers or agents, the purchase price to be paid by any
underwriter or dealer for Common Stock purchased from the Selling
Stockholders, any discounts, commissions and other items constituting
compensation from the Selling Stockholders and any discounts, commissions
or concessions allowed or reallowed or paid to dealers, and the proposed
selling price to the public.
The Selling Stockholders and any underwriters, dealers or agents that
participate in the distribution of the Common Stock may be deemed to be
"underwriters" under the Securities Act, and any profit on the sale of the
Common Stock by them and any discounts, commissions or concessions received
by any such underwriters, dealers or agents might be deemed to be
underwriting discounts and commissions under the Securities Act.
EXPERTS
The financial statements incorporated in this Prospectus by reference
from the Company's Annual Report on Form 10-K for the year ended December
31, 1997 have been audited by Deloitte & Touche LLP, independent auditors,
as stated in their report, which is incorporated herein by reference, and
has been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
LEGAL OPINION
The validity of the shares of Common Stock being offered by this
Prospectus is being passed upon for the Company by Fried, Frank, Harris,
Shriver & Jacobson, a partnership including professional corporations.
Fried, Frank, Harris, Shriver & Jacobson from time to time renders legal
services to Forstmann Little & Co.
=================================== ===================================
NO PERSON HAS BEEN AUTHORIZED
TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATIONS OTHER THAN
THOSE CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE,
SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED.
THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR
THE SOLICITATION OF AN OFFER TO
BUY, ANY SECURITIES OTHER THAN THE
SECURITIES TO WHICH IT RELATES OR
AN OFFER TO SELL, OR THE
SOLICITATION OF AN OFFER TO BUY,
SUCH SECURITIES IN ANY
CIRCUMSTANCES IN WHICH SUCH OFFER
OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE 5,427,166 SHARES
HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THE INFORMATION GENERAL
HEREIN IS CORRECT AS OF ANY TIME SEMICONDUCTOR
SUBSEQUENT TO ITS DATE. INC.
COMMON STOCK
TABLE OF CONTENTS
PAGE
----
AVAILABLE INFORMATION.........2
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE.......2 -----------------
THE COMPANY...................4 PROSPECTUS
RISK FACTORS..................4 -----------------
USE OF PROCEEDS...............6
SELLING STOCKHOLDERS..........6
PLAN OF DISTRIBUTION..........9
EXPERTS.......................9
LEGAL OPINION.................9 , 1998
=================================== ===================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized statement of expenses of the Company in
connection with the issuance of the Common Stock being registered. All of
the expenses are estimated, except for the registration fee.
Securities and Exchange Commission
registration Fee........................... $ 11,251
Legal fees and expenses...................... 100,000
Miscellaneous................................ 8,749
---------------
Total..................................... $ 120,000
===============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify its directors and officers, as
well as other employees and individuals (each an "Indemnified Party," and
collectively, "Indemnified Parties"), against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement in
connection with specified actions, suits, or proceedings, whether civil,
criminal, administrative, or investigative, other than in connection with
actions by or in the right of the corporation (a "derivative action"), if
an Indemnified Party acted in good faith and in a manner such Indemnified
Party 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 that his or her conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except
that a corporation may only indemnify an Indemnified Party for expenses
(including attorneys' fees) incurred in connection with the defense or
settlement of such derivative action. Additionally, in the context of a
derivative action, DGCL Section 145 requires court approval before there
can be any indemnification where an Indemnified Party has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification arrangements that may be granted pursuant to a
corporation's charter, by-laws, disinterested director vote, stockholder
vote, agreement, or otherwise.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not
be personally liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability
for (i) any breach of the director's duty of loyalty to the corporation or
its stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) any willful or
negligent declaration of an unlawful dividend, stock purchase or
redemption, or (iv) any transaction from which the director derived an
improper personal benefit.
The Certificate of Incorporation and By-Laws of the Company provide
that directors and officers of the Company shall not, to the fullest extent
permitted by the DGCL, be liable to the Company or any of its stockholders
for monetary damages for any breach of fiduciary duty as a director or
officer, as the case may be. The Certificate of Incorporation and By-Laws
of the Company also provide that if the DGCL is amended to permit further
elimination or limitation of the personal liability of directors and
officers, then the liability of the directors and officers of the Company
shall be eliminated or limited to the fullest extent permitted by the DGCL,
as so amended.
The Company has entered into agreements to indemnify its directors and
officers in addition to the indemnification provided for in its Certificate
of Incorporation and By-Laws. These agreements, among other things,
indemnify the Company's directors and officers to the fullest extent
permitted by Delaware law for certain expenses (including attorney's fees),
liabilities, judgments, fines and settlement amounts incurred by such
person arising out of or in connection with such person's service as a
director or officer of the Company or an affiliate of the Company.
The Company maintains directors' and officers' liability insurance,
under which its directors and officers are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of, and certain liabilities which might be
imposed as a result of, actions, suits or proceedings to which directors
and officers are parties by reason of being or have been directors or
officers of the Company, as the case may be.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
A. Exhibits:
1 -- Not Applicable.
2 -- Not Applicable.
4.1* -- Amended and Restated Certificate of Incorporation of the
Company.
4.2* -- Amended and Restated By-Laws of the Company.
4.3** -- Specimen form of the Company's Common Stock Certificate.
4.4*** -- Rights Agreement, dated as of January 6, 1997 between
the Company and ChaseMellon Shareholder Services, L.L.C.
4.5 -- Certificate of Designation, Preferences and Rights
of Series A Junior Participating Preferred Stock
5 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson as
to the validity of the securities being registered.
8 -- Not Applicable.
12 -- Not Applicable.
15 -- Not Applicable.
23.1 -- Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5).
23.2 -- Independent Auditors' Consent of Deloitte & Touche LLP.
24 -- Powers of Attorney (included on signature page).
25 -- Not Applicable.
26 -- Not Applicable.
27 -- Not Applicable.
All supporting schedules have been omitted either because they are not
required or the information required to be set forth therein is included in
the financial statements or in the notes thereto.
--------------------
* Incorporated herein by reference from the Company's Quarterly
Report on Form 10-Q for the period ended June 30, 1997 (File No.
1-5442).
** Incorporated herein by reference to Exhibit 4.4 of the Company's
Registration Statement on Form S-8 filed with the Securities and
Exchange Commission on July 20, 1998 (Reg. No. 333-22861).
*** Incorporated herein by reference from the Company's Registration
Statement on Form 8-A, filed with the Commission on January 10,
1997 (File No. 1-12929).
ITEM 17. UNDERTAKINGS
(a) The undersigned 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 of 1933;
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(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;
unless, in the case of clauses (i) and (ii) above, the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is 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.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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.
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-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunder duly authorized, in the City of Melville, State of New York, on
August 24, 1998.
GENERAL SEMICONDUCTOR, INC.
By: /s/ Ronald A. Ostertag
------------------------------------
Ronald A. Ostertag
Chairman, President and
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Andrew M. Caggia and Stephen B.
Paige and each or any of them, his or her true and lawful attorneys-in-fact
and agents, each acting alone, with full powers of substitution and
resubstitution, for such person and in his or her name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority
to do and perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and purposes as
might or could be done in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, each acting alone, or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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 dates indicated.
SIGNATURE CAPACITY IN WHICH SIGNED DATE
--------- ------------------------ ----
/s/ Ronald A. Ostertag Chairman, President and August 24, 1998
- ------------------------ Chief Executive Officer
Ronald A. Ostertag (Principal Executive Officer)
/s/ Andrew M. Caggia Senior Vice President August 24, 1998
- ------------------------ and Chief Financial Officer
Andrew M. Caggia (Principal Financial Officer)
/s/ Robert J. Gange Vice President and Controller August 24, 1998
- ------------------------ (Principal Accounting Officer)
Robert J. Gange
/s/ Steven B. Klinsky Director August 24, 1998
- ------------------------
Steven B. Klinsky
/s/ Ronald Rosenzweig Director August 24, 1998
- ------------------------
Ronald Rosenzweig
/s/ Peter A. Schwartz Director August 24, 1998
- ------------------------
Peter A. Schwartz
/s/ Samuel L. Simmons Director August 24, 1998
- ------------------------
Samuel L. Simmons
/s/ Dr. Gerard T. Wrixon Director August 24, 1998
- ------------------------
Dr. Gerard T. Wrixon
<PAGE>
EXHIBIT INDEX
Exhibit Number Description Page
1 -- Not Applicable.
2 -- Not Applicable.
4.1* -- Amended and Restated Certificate of Incorporation of the
Company.
4.2* -- Amended and Restated By-Laws of the Company.
4.3** -- Specimen form of the Company's Common Stock Certificate.
4.4*** -- Rights Agreement, dated as of January 6, 1997 between
the Company and ChaseMellon Shareholder Services, L.L.C.
4.5 -- Certificate of Designation, Preferences and Rights
of Series A Junior Participating Preferred Stock
5 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson as
to the validity of the securities being registered.
8 -- Not Applicable.
12 -- Not Applicable.
15 -- Not Applicable.
23.1 -- Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5).
23.2 -- Independent Auditors' Consent of Deloitte & Touche LLP.
24 -- Powers of Attorney (included on signature page).
25 -- Not Applicable.
26 -- Not Applicable.
27 -- Not Applicable.
---------------------------------
* Incorporated herein by reference from the Company's Quarterly
Report on Form 10-Q for the period ended June 30, 1997 (File No.
1-5442).
** Incorporated herein by reference to Exhibit 4.4 of the Company's
Registration Statement on Form S-8 filed with the Securities and
Exchange Commission on July 20, 1998 (Reg. No. 333-22861).
*** Incorporated herein by reference from the Company's Registration
Statement on Form 8-A, filed with the Commission on January 10,
1997 (File No. 1-12929).
EXHIBIT 4.5
GENERAL SEMICONDUCTOR, INC.
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
(Pursuant to Section 151
of the General Corporation Law of the State of Delaware)
I, Stephen B. Paige, Senior Vice President, General Counsel and
Secretary of General Semiconductor, Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"), in accordance with the provisions of Section 103 thereof,
do hereby certify:
That pursuant to the authority conferred upon the Board of
Directors by the Corporation's Restated and Amended Certificate of
Incorporation (the "Certificate of Incorporation"), the Board of Directors
on January 6, 1997, adopted the following resolution creating a series of
400,000 shares of Preferred Stock designated as Series A Junior
Participating Preferred Stock:
WHEREAS, the Certificate of Incorporation provides that the
Corporation is authorized to issue 20,000,000 shares of preferred stock,
none of which are outstanding, now therefore it is.
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Corporation by Article FOURTH of the Certificate of
Incorporation, a series of Preferred Stock of the Corporation be, and it
hereby is, created out of the authorized but unissued shares of the capital
stock of the Corporation, such series to be designated Series A Junior
Participating Preferred Stock (the "Participating Preferred Stock"), to
consist of four hundred thousand (400,000) shares, par value $.01 per
share, of which the preferences and relative and other rights, and the
qualifications, limitations or restrictions thereof, shall be as follows:
1. Future Increase or Decrease. Subject of paragraph 4(e) of this
resolution, the number of shares of said series may at any time or from
time to time be increased or decreased by the Board of Directors
notwithstanding that shares of such series may be outstanding at such time
of increase or decrease.
2. Dividend Rate.
(a) The holders of shares of Participating Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of each November, February, May
and August in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of Participating Preferred Stock, in an amount per share (rounded to
the nearest cent) equal to the greater of (a) $10.00 or (b) 1,000 times the
aggregate per share amount of all cash dividends and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock, par value
$.01 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Participating Preferred Stock.
(b) On or after the first issuance of any share or
fractional share of Participating Preferred Stock, no dividend on Common
Stock shall be declared unless concurrently therewith a dividend or
distribution is declared on the Participating Preferred Stock as provided
in paragraph (a) above; and the declaration of any such dividend on the
Common Stock shall be expressly conditioned upon payment or declaration of
and provision for a dividend on the Participating Preferred Stock as above
provided. In the event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $10.00 per share on the Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of
Participating Preferred Stock, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of
issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of
holders of shares of Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. The Board of Directors may fix a record
date for the determination of holders of shares of Participating Preferred
Stock entitled to receive payment of a dividend distribution declared
thereon, which record date shall be no more than 30 days prior to the date
fixed for the payment thereof.
3. Dissolution, Liquidation and Winding Up. In the event of any
voluntary or involuntary dissolution, liquidation or winding up of the
affairs of the Corporation (hereinafter referred to as a "Liquidation"),
the holders of Participating Preferred Stock shall receive at least $100.00
per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, provided that the holders of shares of Participating Preferred
Stock shall be entitled to receive at least an aggregate amount per share
equal to 1,000 times the aggregate amount to be distributed per share to
holders of Common Stock (the "Participating Preferred Liquidation
Preference").
4. Voting Rights. The holders of shares of Participating
Preferred Stock shall have the following voting rights:
(a) Each share of Participating Preferred Stock shall
entitle the holder thereof to one thousand (1,000) votes on all matters
submitted to a vote of the stockholders of the Corporation.
(b) Except as otherwise provided herein, or by law, the
Certificate of Incorporation or the Amended and Restated By-laws of the
Corporation (the "By-laws"), the holders of shares of Participating
Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of
the Corporation.
(c) If and whenever dividends on the Participating Preferred
Stock shall be in arrears in an amount equal to six quarterly dividend
payments, then and in such event the holders of the Participating Preferred
Stock, voting separately as a class (subject to the provisions of
subparagraph (d) below), shall be entitled at the next annual meeting of
the stockholders or at any special meeting to elect two (2) directors. Each
share of Participating Preferred Stock shall be entitled to one vote, and
holders of fractional shares shall have the right to a fractional vote.
Upon election, such directors shall become additional directors of the
Corporation and the authorized number of directors of the Corporation shall
thereupon be automatically increased by such number of directors. Such
right of the holders of Participating Preferred Stock to elect directors
may be exercised until all dividends in default on the Participating
Preferred Stock shall have been paid in full, and dividends for the current
dividend period declared and funds therefor set apart, and when so paid and
set apart, the right of the holders of Participating Preferred Stock to
elect such number of directors shall cease, the term of such directors
shall thereupon terminate, and the authorized number of directors of the
Corporation shall thereupon return to the number of authorized directors
otherwise in effect, but subject always to the same provisions for the
vesting of such special voting rights in the case of any such future
dividend default or defaults. The fact that dividends have been paid and
set apart as required by the preceding sentence shall be evidenced by a
certificate executed by the President and the chief financial officer of
the Corporation and delivered to the Board of Directors. The directors so
elected by holders of Participating Preferred Stock shall serve until the
certificate described in the preceding sentence shall have been delivered
to the Board of Directors or until their respective successors shall be
elected or appointed and qualify.
At any time when such special voting rights have been so vested
in the holders of the Participating Preferred Stock, the Secretary of the
Corporation may, and upon the written request of the holders of record of
10% or more of the number of shares of the Participating Preferred Stock
then outstanding addressed to such Secretary at the principal office of the
Corporation in the State of Illinois, shall, call a special meeting of the
holders of the Participating Preferred Stock for the election of the
directors to be elected by them as hereinabove provided, to be held in the
case of such written request within forty (40) days after delivery of such
request, and in either case to be held at the place and upon the notice
provided by law and in the By-laws of the Corporation for the holding of
meetings of stockholders; provided, however, that the Secretary shall not
be required to call such a special meeting (i) if any such request is
received less than ninety (90) days before the date fixed for the next
ensuing annual or special meeting of stockholders or (ii) if at the time
any such request is received, the holders of Participating Preferred Stock
are not entitled to elect such directors by reason of the occurrence of an
event specified in the third sentence of subparagraph (d) below.
(d) if, at any time when the holders of Participating
Preferred Stock are entitled to elect directors pursuant to the foregoing
provisions of this paragraph 4, the holders of any one or more additional
series of Preferred Stock are entitled to elect directors by reason of any
default or event specified in the Certificate of Incorporation, as in
effect at the time of the certificate of designation for such series, and
if the terms for such other additional series so permit, the voting rights
of the two or more series then entitled to vote shall be combined (with
each series having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such case, the
holders of Participating Preferred Stock and of all such other series then
entitled so to vote, voting as a class, shall elect such directors. If the
holders of any such other series have elected such directors prior to the
happening of the default or event permitting the holders of Participating
Preferred Stock to elect directors, or prior to a written request for the
holding of a special meeting being received by the Secretary of the
Corporation from the holders of not less than 10% of the then outstanding
shares of Participating Preferred Stock, then such directors so previously
elected will be deemed to have been elected by and on behalf of the holders
of Participating Preferred Stock as well as such other series, without
prejudice to the right of the holders of Participating Preferred Stock to
vote for directors if such previously elected directors shall resign, cease
to serve or fail to stand for reelection while the holders of Participating
Preferred Stock are entitled to vote. If the holders of any such other
series are entitled to elect in excess of two (2) directors, the
Participating Preferred Stock shall not participate in the election of more
than two (2) such directors, and those directors whose terms first expire
shall be deemed to be the directors elected by the holders of Participating
Preferred Stock; provided that, if at the expiration of such terms the
holders of Participating Preferred Stock are entitled to vote in the
election of directors pursuant to the provisions of this paragraph 4, then
the Secretary of the Corporation shall call a meeting (which meeting may be
the annual meeting or special meeting of stockholders referred to in
subparagraph (c)) of holders of Participating Preferred Stock for the
purpose of electing replacement directors (in accordance with the
provisions of this paragraph 4) to be held on or prior to the time of
expiration of the expiring terms referred to above.
(e) Except as otherwise set forth herein or required by law,
the Certificate of Incorporation or the By-laws, holders of Participating
Preferred Stock shall have no special voting rights and their consent shall
not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for the taking of any
corporate action. No consent of the holders of outstanding shares of
Participating Preferred Stock at any time outstanding shall be required in
order to permit the Board of Directors to: (i) increase the number of
authorized shares of Participating Preferred Stock or to decrease such
number to a number not below the sum of the number of shares of
Participating Preferred Stock then outstanding and the number of shares
with respect to which there are outstanding rights to purchase; or (ii) to
issue Preferred Stock which is senior to the Participating Preferred Stock,
junior to the Participating Preferred Stock or on a parity with the
Participating Preferred Stock.
5. Redemption. The shares of Participating Preferred Stock shall
not be redeemable.
6. Conversion Rights. The Participating Preferred Stock is not
convertible into Common Stock or any other security of the Corporation.
IN WITNESS WHEREOF, the undersigned Senior Vice President,
General Counsel and Secretary of the Corporation declares under penalty or
perjury the truth, to the best of his knowledge, of this Certificate of
Designation, Preferences and Rights of Series A Junior Participating
Preferred Stock.
Executed this 25th day of July, 1997 in Melville, New York
By: /s/ Stephen B. Paige
-----------------------------
Stephen B. Paige,
Senior Vice President,
General Counsel and Secretary
EXHIBIT 5
[LETTERHEAD OF FRIED, FRANK, HARRIS, SHRIVER & JACOBSON]
212-859-8076
August 26, 1998 (FAX: 212-859-8587)
General Semiconductor, Inc.
10 Melville Park Road
Melville, NY 11747
Ladies and Gentlemen:
We have acted as special counsel to General Semiconductor, Inc.,
a Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (the "Registration Statement") covering an aggregate
of 5,427,166 shares (the "Registered Shares") of common stock, par value
$.01 per share, to be offered for sale by certain stockholders of the
Company.
With your permission, all assumptions and statements of reliance
herein have been made without any independent investigation or verification
on our part except to the extent otherwise expressly stated, and we express
no opinion with respect to the subject matter or accuracy of such
assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company as we have deemed necessary or appropriate
for the purposes of this opinion. In all examinations, we have assumed the
legal capacity of all natural persons executing documents, the genuineness
of all signatures, the authenticity of original and certified documents and
the conformity to original or certified copies of all copies submitted to
us as conformed or reproduction copies. As to various questions of fact
relevant to the opinions expressed herein, we have relied upon, and assume
the accuracy of, representations and warranties contained in the documents
and certificates and oral or written statements and other information of or
from representatives of the Company and others and assume compliance on the
part of all parties to the documents with their covenants and agreements
contained therein.
Based upon the foregoing and subject to the limitations,
qualifications, and assumptions set forth herein, we are of the opinion
that the Registered Shares are validly issued, fully paid and
non-assessable.
This opinion is limited to the General Corporation Law of the
State of Delaware, as currently in effect.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to this firm under the
caption "Legal Opinion" in the prospectus. In giving this consent, we do
not hereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ Lois Herzeca
-------------------------------------
Lois Herzeca
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
- -----------------------------
We consent to the incorporation by reference in this Registration Statement
of General Semiconductor, Inc. on Form S-3 of our report dated January 28,
1998, appearing in the Annual Report on Form 10-K of General Semiconductor,
Inc. for the year ended December 31, 1997 and to the reference to us under
the heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/S/ DELOITTE & TOUCHE LLP
Jericho, New York
August 26, 1998
